Agents Stephen Hobson and William Keane of the DEA, who conducted the surveillance, corroborated Agent Williams' account of the events which transpired on April 19, 1976.
The defendant took the stand and corroborated Agent Williams' testimony concerning the $400 purchase on April 19, 1976. The defendant testified, however, that he and Selby had planned to "rip off" Agent Williams by selling him a substance that was all "cut" and not heroin. He testified that Selby told him to say that he was a cousin of Cole's. The defendant testified that he paid "Louie" $200 for the package which he thought contained all "cut" and no heroin, and that it was this package that he sold to Agent Williams in order to "rip him off".
The jury found the defendant guilty of distributing heroin in violation of 21 U.S.C. § 841(a)(1).
As heretofore stated, the evidence presented to the jury was more than sufficient to support the jury's verdict. The defendant, however, argues that even though the defendant's version did not contradict Agent Williams' testimony concerning the April 19, 1976 transaction in which Agent Williams paid him $400 for the package containing heroin, the Government failed to produce sufficient evidence to enable the jury to find beyond a reasonable doubt that he was not entrapped.
The defendant is entitled to a charge on entrapment when he shows (1) evidence that the Government initiated the crime, regardless of the amount of pressure applied to the defendant, and (2) any evidence negating the defendant's propensity to commit the crime. United States v. Armocida, 515 F.2d 49, 55 (3d Cir.), cert. denied 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975). The Court charged the jury on entrapment, and the defendant takes no exception to the charge.
There is no question that the burden is on the Government to prove beyond a reasonable doubt that the defendant was not entrapped. United States v. Watson, 489 F.2d 504 (3d Cir. 1973). In the instant case there was more than sufficient evidence establishing defendant's propensity to deal in narcotics. The tape recordings of the conversations between Agent Williams and the defendant establish that the defendant said he could supply $15,000 to $16,000 worth of heroin and that the $400 initial transaction was merely a "tester" to be followed by larger transactions. This is clearly sufficient evidence to show that defendant was a knowing and willing participant in the transaction. See United States v. Armocida, supra, 515 F.2d at 55-56. The testimony presented by defendant to negate his propensity was that he intended to "rip off" Williams by selling him a package containing all "cut" and no heroin, and that he did not know that the package he sold to Williams contained heroin. Matters of credibility are for the jury, United States v. Greenlee, 517 F.2d 899, 903 (3d Cir.), cert. denied 423 U.S. 985, 46 L. Ed. 2d 301, 96 S. Ct. 391 (1975), which in this case accepted the Government's version and rejected the defendant's testimony. As the Court charged the jury:
The fact that law enforcement officials merely afforded opportunity for the commission of criminal conduct does not constitute entrapment. Entrapment occurs only when the criminal conduct was the product of the creative activity of law enforcement officials.