The opinion of the court was delivered by: BECHTLE
Presently before the Court is the motion of defendant Johnnie Fluellen for judgment of acquittal and/or for a new trial. Defendant Fluellen was charged in Count IV of a four-count indictment with conspiracy to distribute drugs, in violation of 21 U.S.C. § 841. His codefendant, Leroy Lewis, was also singly charged in the other three counts of the indictment with specific sales of heroin on three specific days, all of which were included within the conspiracy period of Count IV. The case was tried for four days before a jury, and it concluded on February 10, 1975, at which time the jury returned a verdict of guilty against both defendants.
Defendant Fluellen filed the within motion for a new trial and/or for judgment of acquittal in respect to his conviction on Count IV, and he cites various grounds which support this motion. A brief summary of the facts upon which the jury returned its verdict is as follows:
An undercover officer of the Philadelphia Police Department affiliated with the Federal Drug Enforcement Administration met Fluellen on August 27, 1974, in the company of an unindicted person known as "Porgy" who was in the process of making a sale of heroin to the officer in the presence of Fluellen. During this transaction, the officer and Fluellen conversed and Fluellen advised that if the officer would contact him for heroin in the future he would not have to wait so long. At this meeting, "Porgy," in the presence of Fluellen, handed over a white slip of paper with the name "Johnnie" on it and a telephone number which was a telephone located at a bar in the vicinity. Fluellen told the officer at that time to call the number in advance of any intended purchases of heroin the officer expected to make. The officer testified that he called that number between August 27 and October 15, 1974, approximately three times. During one of those calls, in September, the officer testified that he talked to "Johnnie" and said he wanted to buy some heroin and Fluellen said that the only way it could be done would be for the officer to contact "Porgy" and "Porgy" would be the person to take the officer to Fluellen. When the officer protested that this additional step was unsatisfactory, Fluellen said, "Well, right now, that's the only way it can be done."
On October 15, 1974, the officer again called Fluellen at the same telephone number and he spoke to the defendant and stated that he wanted to buy ten (10) bundles of heroin. The officer and Fluellen agreed upon a price and that the place for the transaction would be in front of a variety story at 7:00 p.m. that day. At the time and place agreed to, the defendant and the codefendant approached the officer, at which time Fluellen said that he only had six (6) bundles and not ten (10). The officer agreed, whereafter Fluellen, pointing to codefendant Lewis, said, "My man here will bring him back." They left and, a few minutes later co-defendant Lewis returned alone with a brown paper bag that contained the heroin, for which the officer paid the agreed price.
The officer testified that he called the telephone number the next day, on October 16, 1974, and he spoke to Fluellen again. The officer told Fluellen he did not like the means by which these transactions were taking place, that is, having different persons deliver the heroin to him after he had made his agreement with Fluellen. He said too many people would know he was in the neighborhood to buy dope and would have money on his person. The defendant told him he had nothing to worry about because codefendant Leroy Lewis was his "Lieutenant."
The last contact was on the 21st of October when the officer, at approximately 7:00 p.m., went to the bar where Fluellen received the previous calls for the purpose of contacting the defendant in order to arrange for the purchase of some heroin the following night, at which time the defendant told the officer that if he wanted to make a purchase he should call Fluellen the next evening. On the next evening, the officer returned again at approximately 7:00 p.m., and Fluellen and codefendant Lewis approached the officer's car, where Fluellen told the officer that Lewis would leave and return with ten (10) bundles of heroin. In a few moments, Lewis did return with ten (10) bundles of heroin and the officer paid him $600. A week later, the officer called Fluellen again in order to purchase a large quantity of heroin and they entered into a transaction for the purchase of 30 bundles of heroin. The officer called Fluellen again on the telephone and the quantity was increased by the officer from 30 to 40 bundles. That evening at 7:00 p.m., Lewis brought 39 bundles and, at the time payment was to be made, the officer signaled to the other officers in surveillance and Lewis was arrested. Defendant Fluellen was arrested on November 7, 1974, and the indictment was returned on December 17, 1974.
I. Court's Questioning of a Witness:
Defendant seeks a new trial because of denial by the Court of a motion for mistrial based upon the fact that the Court had engaged in some questioning of a witness. N.T. 2-30 to 2-34. The witness in question was a witness for the Government and defense counsel was in the midst of cross-examination. The rules governing this point are clearly enunciated in United States v. DiVarco, 484 F.2d 670, 675 (7th Cir. 1973), cert. denied, 415 U.S. 916, 94 S. Ct. 1412, 39 L. Ed. 2d 470 (1974). That case points out that a United States District Judge has a duty to see that the trial does not become confusing or repetitious and, where he participates in questioning in order to clarify a particular point or episode without engaging in advocacy or displaying prejudice or partiality, no error can be predicated upon such examination. A defendant does not have a constitutional right to a confused trial. See also, ABA Standards, Function of the Trial Judge § 1.1(a), where it provides, in relevant part:
"The adversary nature of the proceedings does not relieve the trial judge of the obligation of raising on his own initiative, at all appropriate times and in an appropriate manner, matters which may significantly promote a just determination of the trial."
II. Verdict Against the Weight of the Evidence:
The Government is entitled to have all reasonable inferences resolved in its favor by reason of its being the verdict winner. United States v. Newman, 490 F.2d 139 (3rd Cir. 1974). A review of the testimony, the arguments of counsel, and the applicable authorities clearly demonstrates that there was more than ample evidence to support the charge for which the defendant stands convicted and that all questions of fact crucial to that determination were submitted to the jury and decided by them in accordance with their obligation as jurors, as outlined in the ...