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United States v. O'Leary

July 19, 1984

UNITED STATES
v.
TIMOTHY O'LEARY AND DARRYL BAZNER, TIMOTHY O'LEARY, APPELLANT



On Appeal from the United States District Court for the Western District of Pennsylvania.

Higginbotham and Sloviter, Circuit Judges, and Green, District Judge.*fn*

Author: Sloviter

Opinion OF THE COURT

Sloviter, Circuit Judge.

Appellant Timothy O'Leary, who was convicted by a jury of conspiracy to distribute cocaine in violation of 21 U.S.C. ยง 846, contends that the trial court erred in allowing his co-conspirator to testify to numerous earlier transactions of purchases of cocaine from O'Leary. We find no error, and will affirm the judgment of conviction.

I.

An undercover agent of the Allegheny County Police Department made five purchases of cocaine from Darryl Bazner between June 2, 1983 and August 4, 1983. Bazner was arrested on September 9, 1983, agreed to cooperate with the authorities, and identified O'Leary, then a police officer for the Borough of Baldwin, near Pittsburgh, Pennsylvania, as his source. Bazner made two recorded telephone calls to O'Leary on September 9 and 15 during which O'Leary made no statements directly tying him to the drug transactions but stated "they ain't got nothing on me," "I think we all got in over our heads," and "you better not tell them anything about me." App. at 23B, 32B, 29B. O'Leary was arrested on September 19, 1983, and police found $870 in cash in the house and 7 grams of hashish, 1/2 gram of cocaine, and some drug-related paraphernalia in the car.

O'Leary was charged with conspiracy to distribute cocaine beginning on or about June 1, 1983 until approximately September 15, 1983. He also was charged with five substantive counts of possession with intent to distribute and distribution, but was acquitted by the jury on these counts. At trial, Bazner testified, over objection, as follows:

Q. During the last couple of years, what has been the nature of your contact with Timothy O'Leary? What would you ordinarily see him for?

A. The purchase of some drugs.

Q. What ordinarily would it be?

A. Cocaine.

Q. Darryl, when did the purchaes of cocaine from ...


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