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November 24, 1975


The opinion of the court was delivered by: BRODERICK


 This matter comes before the Court on the defendant's Motion for an Arrest of Judgment, or Judgment of Acquittal, after a jury verdict of guilty on Count II of a three count indictment charging the defendant with possession with intent to distribute a Schedule I narcotic drug controlled substance, in violation of 21 U.S.C. § 841(a)(1). The defendant was originally found guilty by a jury on Count II of the indictment on August 2, 1972. That same jury found the defendant not guilty of the offense charged in Count I, distribution of heroin, and the Court granted the government's motion to dismiss Count III which charged the defendant with possession of heroin in violation of 21 U.S.C. § 844(a). The Court of Appeals reversed the defendant's original 1972 conviction and ordered a new trial in an opinion dated February 20, 1974. United States v. Jones, 492 F.2d 239 [3d Cir.]. The defendant was subsequently retried on Count II of the indictment and after a five day jury trial ending on July 16, 1974, was again found guilty of possession with intent to distribute heroin. The defendant's post-trial motion which attacks his 1974 conviction on a variety of grounds was timely filed on July 22, 1974. The Court has determined that the defendant's motion in connection with the finding of guilty at the second trial is without merit and must be denied.

 Sufficiency of the Evidence.

 At trial, the Court denied the defendant's oral motion for a judgment of acquittal based on the sufficiency of the evidence which was made after the government closed its case and was renewed at the conclusion of the trial. The defendant contends that these rulings were in error and that the government's evidence was insufficient as a matter of law to sustain his conviction. In reviewing the denial of a motion for judgment of acquittal, the pertinent question is whether the trial court had reason to believe that there was sufficient evidence on which the jury could find guilt beyond a reasonable doubt. United States v. Leach, 427 F.2d 1107 (1st Cir. 1970). It is not for the Court, ruling on a motion for a judgment of acquittal, to assess the credibility of witnesses or to weigh the evidence. 2 Wright, Federal Practice and Procedure: Criminal § 467, at 259. Rather, the Court must view the evidence in a light most favorable to the government. United States v. Armocida, 515 F.2d 29 (3d Cir. 1975); United States v. Pratt, 429 F.2d 690 (3d Cir. 1970). If a conviction is based on circumstantial evidence, the evidence need not be inconsistent with every conclusion save that of guilt, provided it does establish a case from which the jury can find the defendant guilty beyond a reasonable doubt. United States v. Giuliano, 263 F.2d 582 (3d Cir. 1959). Applying this test, and viewing the evidence most favorable to the government, we conclude that there was more than sufficient evidence for the jury reasonably to find the defendant guilty beyond a reasonable doubt.

 On August 26, 1971 Special Agent Glenn C. Brown of the Drug Enforcement Agency (DEA) was working on special assignment in an undercover capacity in Philadelphia. After receiving a telephone call at approximately 10:00 p.m., Agent Brown, accompanied by another Special Agent, Joseph McMillan, proceeded to the Wanda Inn, located at 12th and Mount Vernon Streets in Philadelphia. Shortly after entering the Wanda Inn, the agents were joined by a government informant, Aubrey Lewis. Soon thereafter, the agents and informant Lewis were joined by the defendant. The defendant and Agent Brown then entered into a conversation during which the defendant offered to sell Agent Brown one and one half ounces of heroin for $1,800.00. The defendant told Agent Brown that the heroin was of such quality that it could take a "five cut". Agent Brown testified that he then told the defendant that he would have to have a sample of the heroin before he would pay him any money. The defendant left the bar and returned in five or ten minutes and told Agent Brown that the requested sample would arrive shortly. Thereafter, the defendant left the bar again and re-entered at approximately 11:30 that night.

 Agents Brown and McMillan then left the Wanda Inn. They met two other DEA Special Agents, John McCready and Donald Abrams, who conducted a field test to determine the presence of an opium derivative. After receiving a positive result from the field test at about midnight, Agents Brown and McMillan returned to the Wanda Inn where they again talked to the defendant who told them that he had left the bar for a short time and discovered that he was being followed and that he recognized an undercover officer outside the bar. The defendant then said that under the circumstances he was calling the deal off.

 The defendant contends that the evidence presented by the government in this case was insufficient to convict the defendant of possession with intent to distribute heroin. This contention is no doubt precipitated by the following passage from the Court of Appeals' opinion following the 1971 conviction.

It is necessary also that the government surmount the hurdle posed by United States v. Pratt, 429 F.2d 690 (3d Cir. 1970). Since a new trial must be had, however, we do not pass upon those issues here. 492 F.2d at 241.

 In Pratt, the defendant and a codefendant, Wilson, were charged with the illegal sale of heroin. Wilson pleaded guilty and did not testify at Pratt's trial. The evidence upon which Pratt was convicted showed that an undercover agent negotiated with Pratt's codefendant Wilson for the purchase of heroin. After a trip in a car with the undercover agent, Wilson left the car and walked some distance and met Pratt. Pratt then left Wilson, walked past the agent's car and looked in the windshield. Pratt then returned to Wilson. Both Pratt and Wilson got into the agent's car and the three drove away. Wilson then gave the agent two glassine bags of heroin. Both the undercover agent and a policeman who observed the conversations between Pratt and Wilson testified that they did not see any package or object pass from Pratt to Wilson. The Third Circuit Court of Appeals reversed Pratt's conviction for the illegal sale of heroin holding that the evidence was insufficient to establish that Pratt ever had the two bags of heroin in his possession or that he sold them to the undercover agent.

 The evidence presented in the instant case differs substantially from that produced by the government in Pratt. Here, Agent Brown testified that he conducted negotiations for the sale of the heroin directly with the defendant and the defendant stated to Brown that he would sell to him one and one half ounces of heroin for $1,800.00. In Pratt, the negotiations for the sale of heroin were conducted only with the codefendant, and not, as here, with the defendant himself. Furthermore, the testimony in this case showed that after the negotiations as to the price of the heroin, the defendant told the undercover agent that he would leave the bar and return with samples of the heroin; that the defendant left the bar and upon his return a short time later he took a seat at the bar across from the undercover agent; that he immediately called the informant to come join him; that the undercover agent witnessed the movement of the defendant's hands and the informant's hands; that the informant remained within the view of the undercover agent and returned directly to him at which time the informant handed the undercover agent two glassine bags; that the undercover agent immediately called the defendant over to where he was sitting and showed the two glassine bags to the defendant and acted as though he was requesting an explanation of their content; and that the defendant pointed to the two bags and told Agent Brown that the larger bag was ready to be cut and that the smaller bag was ready for the street.

 We are satisfied that the evidence outlined above, viewed in a light most favorable to the government, is sufficient to support a jury verdict of guilty on the Count charging possession with intent to distribute heroin. The jury could have reasonably concluded beyond a reasonable doubt from the evidence presented that the defendant had either actual or constructive possession of the heroin involved herein, United States v. Crippen, 459 F.2d 1387 (3d Cir. 1972), with the requisite intent to distribute.

 Absence of Informant at Trial.

 Prior to the first trial, defense counsel was advised by the Government at a pre-trial conference that an informant was involved in the case. The government, however, did not disclose the name of the informant until the day of the jury selection at which time it told the defendant and his counsel that the government did not intend to call the informant as a government witness. It was also on that same day of the jury selection that Agent Brown made a telephone call to the informant's residence in an effort to learn of his whereabouts. When the call by Agent Brown proved unproductive, two other government agents were dispatched to the informant's presumed residence, and later to his place of employment, in an effort to locate him. These efforts proved unproductive and the government was unable to produce the informant so that the defendant could determine whether the informant's testimony would be helpful to his defense. On appeal, our Circuit Court held that in view of the fact that the Government had been aware for two months prior to the trial that the informant could not be located, the government's efforts on the opening day of the trial were not sufficient to fulfill its obligation to make the informant available to the defendant for his use at trial. The Court stated in its opinion:

Whether an informant's identity should be disclosed depends on the circumstances of each case and requires a balancing of the public's right to the flow of information against the requirements of providing a fair trial to the defendant. Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). If for legitimate reasons, the government decides not to identify the informant in advance of trial, then absent special circumstances, it must take reasonable steps to have him available when the case is called, should a ruling in favor of disclosure be made. United States v. Leon, 487 F.2d 389 (9th Cir. 1973); United States v. Barnes, 486 F.2d 776 (8th Cir. 1973); Velarde-Villareal v. United States, 354 F.2d 9 (9th Cir. 1965); United States v. D'Angiolillo, 340 F.2d 453 (2d Cir. 1965); United States v. Clarke, supra. In this case the failure of the government to undertake a serious search for the informant in advance of the date set for trial has not been explained, and hence in the circumstances here we do not consider that the obligation to produce the witness has been met. U.S. v. Jones, 492 F.2d at 242.

 Mr. Fioravanti, the Assistant United States Attorney who was assigned this case after the first trial, testified that after the mandate from the Court of Appeals he instructed Special Agent Abrams of DEA to make a search for Mr. Lewis and to produce him in Mr. Fioravanti's office. Agent Abrams was able to locate Mr. Lewis and brought him to Mr. Fioravanti's office during the month of March, 1974. At that meeting, attended by Mr. Abrams and John Buchanan, an undercover police officer attached to DEA Task Force, Mr. Lewis told Mr. Fioravanti that he was frightened and did not want to testify against Mr. Jones. Mr. Fioravanti told Mr. Lewis that he would probably be required to appear at trial and that Mr. Lewis should keep Agent Abrams apprised of his whereabouts at all times. Mr. Lewis assured Mr. Fioravanti that he would work with Agent Abrams. Thereafter, until May of 1974 (when Agent Abrams was transferred to Germany), Mr. Fioravanti received periodic reports from Agent Abrams that he was maintaining contact with Aubrey Lewis. After Agent Abrams left for Germany on special assignment in May of 1974, Mr. Fioravanti directed Officer Buchanan to keep in contact with Mr. Lewis. However, Officer Buchanan was not able to locate Mr. Lewis. During this period Mr. Fioravanti was asked by the defendant's counsel if he would make Mr. Lewis available for an interview. Mr. Fioravanti told defense counsel that when Mr. Lewis was located, and before trial, defense counsel would have an opportunity to interview Mr. Lewis. On June 25 or 26, the prosecution of this case was transferred to another Assistant United States Attorney, Susan Harmon.

 On June 27, 1974, Ms. Harmon issued a subpoena for Aubrey Lewis. Special Agent John Smith of DEA was given the subpoena for service. On June 28, 1974, after researching DEA files to obtain an identification of Mr. Lewis and to ascertain the locations at which Mr. Lewis had reportedly been living, Agent Smith visited four locations in North Philadelphia. These locations were (1) 2908 Westmont Street, the residence of Mr. Lewis' wife, Charlotte Lewis; (2) 1917 North Darien Street, an address obtained from Mr. Lewis' attorney and at which he had recently resided; (3) 1226 Tucker Street, reportedly a previous address of Mr. Lewis' father and; (4) 1212 Poplar Street, allegedly the address of Mr. Lewis' mother, who had died four or five years earlier. Agent Smith was unable to obtain any useful information as to the whereabouts of Aubrey Lewis at any of these locations. Nevertheless, on July 2, 1974, Agent Smith returned to the Tucker Street and the North Darien Street locations but was again unsuccessful in his attempt to obtain information concerning Mr. Lewis' whereabouts.

 Agent Smith also contacted the Court of Common Pleas of Philadelphia County on June 28, 1974, and learned that Mr. Lewis was scheduled for a court appearance on July 18, 1974. On July 1, 1974, Agent Smith continued his search for Mr. Lewis by contacting Officer John Buchanan. He was told by Officer Buchanan that there was a possibility that Mr. Lewis was living at 3516 Warnock Street. However, Agent Smith did not locate Mr. Lewis at that address. On July 9, 1974, Agent Smith spoke with Aubrey Lewis' wife. Mrs. Lewis told Agent Smith that she did not know where Mr. Lewis was residing and that Mr. Lewis was not residing with her and that he provided her with no financial assistance.

 Special Agent Ralph Carter of the FBI then testified that his office received a letter from Mr. Dixon, an Assistant United States Attorney who was the government's trial attorney at the second trial, which letter requested help from the FBI in locating Mr. Lewis. Agent Carter conducted a full indices search on Mr. Lewis. The search revealed no information, which was reported to Agent Smith on July 8, 1974.

 The jury was sworn at this the second trial on July 10, 1974 and the Court ordered the government to continue its efforts to locate Mr. Lewis. Officer Buchanan testified that he continued his search for Aubrey Lewis from April, 1974 until the end of the second trial. The defendant contends that the government again failed at this second trial to meet its obligation to make Mr. Lewis available for the defendant's use at trial. It is the defendant's contention that the efforts of the government to secure the presence of Mr. Lewis reveals a failure on the part of the government to exercise appropriate diligence to make the informant available.

 The government does not have an absolute duty to make an informant available to the defendant for his use at trial. United States v. Ferguson, 162 U.S. App. D.C. 268, 498 F.2d 1001 (1974); cert. denied 419 U.S. 900, 42 L. Ed. 2d 145, 95 S. Ct. 183; United States v. Moore, 446 F.2d 448 (3d Cir. 1971); United States v. White, 324 F.2d 814 (2d Cir. 1963); United States v. Cimino, 321 F.2d 509 (2d Cir. 1963); Williams v. United States, 273 F.2d 781 (9th Cir. 1959). The United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957), held that the identity of an informant, or of the contents of his communication, must be disclosed to a defendant where it is relevant and where it would be helpful to the defense, or is essential to a trial. In Roviaro, the government refused throughout the trial to reveal the identity of the informant to the defendant. The Roviaro rule has no application to a situation such as the instant case where the identity of the informant was disclosed to the defendant almost two years in advance of the second trial.

 The Second Circuit has summarized the government's duty in connection with making an informant available to the defendant for his use at trial in United States v. D'Angiolillo, 340 F.2d 453 (2d Cir. 1965):

The rule emerging from these and earlier decisions is that, where the informer's testimony may be relevant to the defense, the defendant is entitled to his name, to such information as the government may have concerning his whereabouts, and to reasonable cooperation in securing his appearance. 340 F.2d at 455. (footnote omitted).

 In sending this case back for a second trial, our Circuit Court was dealing with a situation in which the government had not revealed the name of the informant in advance of the trial and in their opinion the government had not made a sufficient effort to have the informant available to the defendant. This was not the situation in connection with the second trial. The defendant was aware of the identity of the informant from August 2, 1972, when, during the first trial of this case, the Court ordered the government to reveal the identity of the informant and to assist the defendant in locating him. *fn1" Furthermore, after the Circuit Court ordered a retrial of the case, the evidence shows that the government made a continuing effort to maintain personal contact with the informant. These efforts were at first successful but later proved futile. The Court is satisfied that in the circumstances of this case the government has more than satisfied its obligation to make Mr. Lewis available for the defendant's use at trial.

 On July 18, 1974, two days after the jury returned its verdict of guilty, Mr. Lewis was found and brought in on the bench warrant. On July 19, 1974, a hearing was held at which Mr. Lewis was represented by counsel. He testified that he was instructed by Mr. Fioravanti to maintain contact with Agent Abrams. Mr. Lewis, however, refused to answer any questions concerning the transactions involving the defendant on the night of August 26, 1971 on the ground that such answers might tend to incriminate him. He did state, however, that he was afraid to testify and that had he been produced at trial, he would not have testified for the defendant but would have asserted his Fifth Amendment right against self-incrimination. (N.T. Post Trial Hearing, 68, 69). The defendant was therefore unable to ...

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