Applying the above standards to the facts of this case, we find that there was sufficient circumstantial evidence presented by the Government at trial from which a jury might infer that McLean knowingly had dominion and control over the drugs, that he knowingly and intentionally possessed narcotics with the intent to distribute, that he knowingly distributed a narcotic substance, and that he conspired with Miah to bring about this result.
As the summarized evidence above clearly shows, McLean twice carried heroin to Miah's home in a brown paper bag, apparently in response to a telephone call from Miah. There was evidence that he helped count the $1,800 paid by Samuels for the ounce of heroin on June 7, and that he was present when subsequent drug transactions were discussed by Miah and Samuels on June 9, 1976. Further, the covert operation of June 15, 1976, in which McLean played a principal role, leaves little doubt that McLean knowingly had power and control over the drug. McLean's motion for a judgment of acquittal will, therefore, be denied.
We turn finally to Miah's and McLean's motions for a new trial pursuant to Fed.R.Crim.P. 33.
First, Miah and McLean argue that the Court erred in permitting testimony relating to transactions and conversations which occurred on dates other than those alleged in the indictment, on the ground that the prejudicial impact of such testimony outweighed its probative value. We hold that all such testimony was properly admitted at trial, that its probative value outweighed its prejudicial impact, and that the jury was given proper cautionary instructions with respect to the admissibility of such evidence against McLean.
With respect to testimony relating to conversations between Miah and Government agents on June 7 and 9, 1976, it is well settled that testimony relating to prior offenses is admissible to show, inter alia, identity, motive and common plan or scheme. Michelson v. United States, 335 U.S. 469, 93 L. Ed. 168, 69 S. Ct. 213 (1948); United States v. Frumento, 426 F. Supp. 797, 803-805 (E.D.Pa. 1976); United States v. Williams, 367 F. Supp. 768, 770-771 (E.D.Pa. 1973), aff'd mem., 500 F.2d 1401 (3d Cir. 1974); Fed.R.Evid. 404(b). In this case, evidence of transactions which occurred prior to June 15, 1976, were clearly probative of and relevant to the issues of identity, knowledge, intent, motive and common scheme or plan. Furthermore, evidence of other crimes is also admissible where relevant to other issues in the case. Miah's sole defense at trial was entrapment. Therefore, his propensity to commit the crime was a relevant issue. United States v. Russell, 411 U.S. 423, 429, 433, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973). Evidence of prior crimes is relevant on the issue of a defendant's propensity to commit a crime and is, therefore, admissible. Sorrells v. United States, 287 U.S. 435, 451, 77 L. Ed. 413, 53 S. Ct. 210 (1932); United States v. Silver, 457 F.2d 1217, 1219-1220 (3d Cir. 1972).
Testimony relating to conversations and transactions occurring subsequent to June 15, 1976, was also properly admitted. Miah took the stand in his own defense and testified that he was entrapped by Samuels and West, that he would never have become involved in any of these drug transactions but for this entrapment, and that he had not been involved in narcotics negotiations after June 15, 1976. The Government then produced testimony that, on several dates subsequent to the date alleged in the indictment, Miah and Samuels had engaged in conversations respecting prospective heroin transactions. This testimony was relevant to the issue of Miah's credibility and was admissible on rebuttal for impeachment purposes. Miah opened the door to such testimony by his testimony on direct examination and the Government was entitled to contradict that testimony. Harris v. New York, 401 U.S. 222, 225, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1970); United States v. Holland, 360 F. Supp. 908, 913-914 (E.D.Pa. 1973), aff'd mem., 487 F.2d 1395 (3d Cir. 1973), cert. denied, 416 U.S. 971, 94 S. Ct. 1994, 40 L. Ed. 2d 559 (1974); Fed.R.Evid. 607, 611.
Finally, before the Government was permitted to introduce such testimony, the Court instructed the jury that such testimony was not part of the conspiracy alleged in the indictment and, therefore, not admissible against McLean. (N.T. 4-121.) This admonition was repeated in the Court's final charge to the jury.
Miah next argues that the Court erred when it instructed the jury that, "Good motive alone is not a defense where the act done or committed is a crime," on the ground that this charge undermined Miah's entrapment defense.
In his defense at trial, Miah testified that West had originally contacted him about obtaining and distributing narcotics, that but for West's story about the "Black Mafia" threatening his life he never would have become involved with narcotics, and that he had no contact with narcotics prior to June 7, 1976, nor subsequent to June 15, 1976. Miah's testimony thus put before the jury the issue of whether Miah was entrapped by the Government. United States v. Armocida, 515 F.2d 49, 55 (3d Cir. 1975), cert. denied, 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975); United States v. Watson, 489 F.2d 504, 509 (E.D.Pa. 1973). At the close of all the evidence, and after arguments by counsel, the Court instructed the jury on, inter alia, the defense of entrapment.
The instructions by the Court to the jury were proper and in complete accord with jury instructions approved by both the Supreme Court and the Third Circuit. See United States v. Russell, supra, 411 U.S. at 427; United States v. Watson, supra, 489 F.2d at 506; Government of the Virgin Islands v. Cruz, supra, 478 F.2d at 717 n.5; United States v. Silver, supra, 457 F.2d at 1219-1220. See also Devitt and Blackmar, Federal Jury Practice and Instructions, §§ 13.09, 14.11 (3d Ed. 1977). As the instructions given reflect, the issues presented to the jury by an entrapment defense are the criminal design and predisposition of the defendant to commit a crime. In other words, the issue is not the motive behind the defendant's actions but whether or not the intent to commit the crime originated with the Government agents or with the defendant. If a defendant were predisposed to commit a crime, that is, ready and willing to commit a crime given an opportunity, and did commit a crime while acting with the requisite intent, that is, volitionally and with knowledge that his conduct was unlawful, then the reason for, or motivation behind, the commission of the crime is irrelevant to a determination of his guilt or innocence. We hold, therefore, that Miah's argument with respect to the Court's instructions is without merit. The motions for a new trial will, therefore, be denied.
An appropriate Order will be entered. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 433 F. Supp.]
AND NOW, TO WIT, this 20th day of June, 1977, IT IS ORDERED as follows:
1. Leroy Miah's motions for a new trial and in arrest of judgment, pursuant to Fed.R.Crim.P. 33 and 34, respectively, are denied.
2. John 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, are hereby denied.
IT IS FURTHER ORDERED that defendants Leroy Miah and John McLean shall appear at 9:30 a.m., Tuesday, July 19, 1977, in Courtroom 17B, United States Courthouse, Philadelphia, Pa., for the purpose of sentencing.
LOUIS C. BECHTLE, J.