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UNITED STATES v. MCLEAN

June 20, 1977

UNITED STATES OF AMERICA
v.
LEROY MIAH and JOHN McLEAN



The opinion of the court was delivered by: BECHTLE

 BECHTLE, J.

 The defendants Leroy Miah ("Miah") and John McLean ("McLean") were each convicted, by a jury before this Court on February 7, 1977, of violating 21 U.S.C. § 841(a) (distribution of a controlled substance), 18 U.S.C. § 2 (aiding and abetting), and 21 U.S.C. § 846 (conspiracy). The three-count indictment under which the defendants were convicted charged that Miah and McLean sold a quantity of heroin to a Government agent on June 15, 1976.

 Presently before the Court are Miah's motions for a new trial and in arrest of judgment, pursuant to Fed.R.Crim.P. 33 and 34, respectively, and McLean's motions for a judgment of acquittal, for a new trial and in arrest of judgment, pursuant to Fed.R.Crim.P. 29, 33 and 34, respectively. *fn1"

 A brief summary of the evidence will be helpful to an understanding of this opinion. In early June of 1976, William West ("West"), a Government informant, was telephoned by Miah, who told West that he had a quantity of heroin for sale. On June 7, 1976, West, Walter Samuels ("Samuels") and Alvin Williams ("Williams"), both Philadelphia police officers assigned to the Drug Enforcement Administration Task Force ("DEA"), drove to Miah's home at 917 West Third Street, Chester, Pennsylvania. Samuels and West entered Miah's home where West introduced Samuels to Miah. Miah, distrusting the stranger Samuels, took West into a side room, made a telephone call, and was heard to say that the "package" would arrive shortly. Approximately 45 minutes later, a man, referred to as "Sweeney," and identified at trial as McLean, arrived at Miah's home carrying a brown paper bag which concealed a coffee can containing heroin. Samuels, through West, and Miah negotiated a sale of one ounce of heroin for $1,800. West delivered a briefcase containing $1,800 to Miah, which McLean assisted Miah in counting.

 Two days later, on June 9, 1976, West, Samuels and Williams returned to Miah's home, and West and Samuels entered the residence. After a short conversation between Miah and Samuels, West was instructed to leave the premises. Shortly after West left, McLean entered, and Miah introduced McLean to Samuels as "Sweeney." Miah and Samuels then discussed, in McLean's presence, a second sale of heroin by Miah to Samuels. Miah whispered to McLean and then informed Samuels that there would be no drug sales that day. After leaving with Miah a New Jersey telephone number where he could be contacted, Samuels exited the residence.

 At the trial, Miah relied upon the defense of entrapment. He testified that he had knowingly possessed heroin and distributed heroin to West and Samuels on June 7 and 15, 1976. However, he testified that he did so only because West had contacted him and told him that he (West) owed the "Black Mafia" money and that they had threatened to kill his child if he did not repay the money owed. Miah testified that he had agreed to lend West money with which to purchase drugs in order to help West repay the money owed. Miah also testified that he had never been involved with drugs prior to June 6, 1976, or after June 15, 1976, and that but for West's story he, Miah, would never have become involved with drugs.

 Samuels testified on rebuttal that, subsequent to June 15, 1976, he had met with Miah on July 14 and July 20, 1976, and had spoken with Miah over the telephone on July 20, July 21, July 31 and August 3, 1976, for the purpose of arranging subsequent purchases of heroin. In testifying about his conversations with Miah on the above dates, Samuels referred to Miah's statements, which contained references to "New York connections," "12 cut," and "his (Miah's) boy Sply, who just got out of jail for homocide (sic) had a connection." Before the Court permitted Samuels to testify to these conversations with Miah, it instructed the jury that Samuels' testimony related to dates not charged in the indictment and, therefore, not part of the alleged conspiracy, and that Samuels' testimony was admissible only against Miah and not against McLean. These instructions were repeated to the jury by the Court before the jury retired for deliberations.

 Both Miah and McLean filed motions in arrest of judgment pursuant to Fed.R.Crim.P. 34 *fn2" which argue that the indictment does not properly charge the offense of conspiracy. We find that the indictment is sufficient as a matter of law to charge the offense of conspiracy under 21 U.S.C. § 846. First, the caption of the indictment states both the citation of each of the statutes which the defendants were charged with having violated, as well as a parenthetical description of the offenses. Second, Count III of the indictment, in which the crime of conspiracy is charged, lists the date of the offense, tracks the language of the statute under which the violation is alleged, 21 U.S.C. § 846, and cites the specific statutes which the defendants were charged with having conspired to violate. Finally, the indictment lists numerous, detailed overt acts alleged to have been committed in furtherance of the conspiracy. These overt acts are of sufficient detail to advise Miah and McLean of the offense with which they are charged. These factors, taken together, are sufficient as a matter of law to charge Miah and McLean with the offense of conspiracy. See United States v. Bermudez, 526 F.2d 89, 94 (2d Cir. 1975), cert. denied, 425 U.S. 970, 96 S. Ct. 2166, 48 L. Ed. 2d 793 (1976). Miah and McLean's motions in arrest of judgment will, therefore, be denied.

 Next, McLean renews his motion for a judgment of acquittal raised at the close of the Government's case and at the close of all the evidence, pursuant to Fed.R.Crim.P. 29. In support of his motion, *fn3" McLean argues that the evidence produced by the Government was insufficient to sustain a conviction as a matter of law. In particular, he argues that there was no direct evidence that McLean knowingly and intentionally distributed heroin, or that he conspired with Miah to distribute heroin. We find McLean's arguments unpersuasive.

 In reviewing the denial of a motion for judgment of acquittal, the crucial issue is whether the evidence, when viewed in a light most favorable to the Government, Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942); Government of Virgin Islands v. Cruz, 478 F.2d 712, 716 (3d Cir. 1972) (citations omitted), was such that a jury could have found beyond a reasonable doubt that the defendant was guilty as charged. United States v. De Garces, 518 F.2d 1156, 1159-1160 (2d Cir. 1970); United States v. Phifer, 400 F. Supp. 719, 724 (E.D.Pa. 1974), aff'd mem., 532 F.2d 748 (3d Cir. 1976). Where a conviction is based on circumstantial evidence, the evidence need not be inconsistent with every conclusion but that of guilt, provided that such circumstantial evidence provides the jury with a basis upon which to find the defendant guilty beyond a reasonable doubt. United States v. Giuliano, 263 F.2d 582 (3d Cir. 1959); United States v. Phifer, supra, 400 F. Supp. at 724. See also United States v. Watkins, 171 U.S. App. D.C. 158, 519 F.2d 294, 297-298 (1975). In reviewing testimony for determining the Rule 29 motion, questions of the weight of the evidence or of the credibility of the witness are foreclosed by the jury's verdict. United States v. Goichman, 407 F. Supp. 980, 991 (E.D.Pa. 1976).

 Sufficient evidence to sustain a conviction under 21 U.S.C. § 841(a) requires proof that the defendant knowingly possessed a controlled substance. United States v. Davis, 461 F.2d 1026, 1035 (3d Cir. 1972). Proof of possession may be shown in a variety of ways, as the court in Davis stated:

 
"Possession" of a narcotic drug under the statutes involved is sufficient to allow conviction unless the one charged with possession explains it to the jury's satisfaction. Proof of actual possession need not be shown; it may be established by circumstantial evidence. . . . The evidence must be such, however, that a jury may infer that the person charged with possession had dominion and control of the narcotic drug, . . . or that he knowingly had power to exercise dominion and control over the drug. . .. Such dominion and control need not be exclusive but may be shared with others. . . . On the other hand mere proximity to the drug, or mere presence on ...

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