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July 25, 1958


The opinion of the court was delivered by: DUSEN

Defendant was tried and found guilty by a jury under four counts of an Indictment charging him with violations of 21 U.S.C.A. § 174 and 26 U.S.C.A. § 4705(a) as a result of selling six ounces and 115 grains of heroin on March 23, 1957, for $ 3,150 (N.T. 58) and 5 ounces and 317 grains of heroin on April 3, 1957, for $ 3,500. The sales were made to agents of the Bureau of Narcotics, United States Treasury Department, and the defendant's sole defense was entrapment. The case is now before the court on defendant's motion for new trial.

The agents testified that on February 26, 1957, they told defendant that they had been referred to him by 'some of his friends in Baltimore and New York' if they 'wanted to make any purchases of narcotics in this area' (N.T. 18). Defendant asked one of the agents if they knew 'Harry Riccobene' (N.T. 19) and stated that Riccobene was 'a good source for heroin' in this area (N.T. 21), but that 'he was at the present time serving a sentence for narcotics.' One of the agents testified that Santore told him that 'he could get me heroin, but his connection wouldn't sell anything less than a half a kilo. It told him that for the first time I wouldn't purchase a half kilo, but I would purchase a quarter kilo, and told me that quarter kilo would cost me $ 3500. I told him that that was kind of high. * * * We discussed further the price, and he told me that it would have to be at least $ 3500. for the quarter kilo. I told him that I would let him know whether or not I wanted to buy the quarter kilo.' (N.T. 21). *fn1"

 After a few subsequent meetings, during which defendant introduced the agent to Frank Valli, who said, in defendant's presence, that he thought he could make a connection to secure heroin (N.T. 53), the first sale was made and, subsequently, the second sale took place for a greater price since defendant wished to retain more of the sales price for himself. One-sixth grain is the average heroin content of a dose taken by an addict, so that there were thousands of such doses in the quantity involved in each of the two transactions. *fn2"

 The question of whether or not entrapment was shown was properly left up to the jury. *fn3" When entrapment has been interposed as a defense, the prosecution has the burden of showing that the defendant was already disposed to make sales of narcotics at the time of the purchases by the Government agents. See United States v. Moses, 3 Cir., 1955, 220 F.2d 166. *fn4" The testimony of the Government agents, if believed by the jury, was sufficient to show defendant's knowledge of the business and predisposition to commit a narcotics violation. *fn5" Defendant's readiness to engage in the sales of such large amounts of heroin, his familiarity with quantities, prices, quality, and sources of supply for heroin were ample to justify the jury in finding defendant's predisposition to engage in the narcotics traffic. *fn6" The testimony of these agents tended to prove that the purpose of the Government agents in contacting the defendant was to ascertain whether the defendant was already engaged in an unlawful business and not to solicit the commission of a crime, thus rejecting the entrapment defense. *fn7"

 For these reasons, the defendant's contentions that the verdict was against the law, the evidence, and the weight of the evidence are rejected.

 The defendant testified, inter alia, on direct examination that (1) he had been a pipefitter and plumber by trade and also handled fighters (N.T. 83), he never dealt in or handled narcotics prior to February 26, 1957 (N.T. 84-8), and (3) he had been arrested three times on lottery charges (N.T. 91-2). In answer to questions on cross-examination concerning his 1957 income, he testified that his total income for that year was a couple hundred dollars from his interest in a fighter named Robinson, less than this amount from his interest in a fighter named Bailey, some income from 'booking a little number on the side,' and less than $ 500 which he received for making these two purchases of narcotics for the agents (N.T. 110-112). Referring to the agents as 'they,' he testified at N.T. 121:

 '* * * they made a bird dog out of me. They turned around that I had to bring stuff back to them, they were paying me, the people wouldn't deal with them, and they kept me in the scene at all times.'

 Subsequently, defendant testified that his only contact for securing narcotics was Frank Valli (N.T. 138), and he was then required to answer this question (N.T. 140):

 'Is the only connection you ever had for making narcotic buys Valli, or did you have some others?'

 The defendant gave the following answer to the question and his counsel moved for the withdrawal of a juror:

 '* * * they dragged me on for a year making connections. Youse want to know it; youse want to send me to jail? Sentence me and get it over with.

 'The Court: Now, just a minute.

 'The Witness: Well, that is the way it is. They have been shanghaiing me, torturing me for two years, these people. Now youse ...

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