he was aware there was a high probability that the packages in question contained heroin -- unless, despite being aware of such a high probability, he actually believed the packages did not contain heroin. The jury was told Heard's knowledge was important as to both counts for which he had been indicted.
So far as Ford was concerned, I said he was charged with aiding and abetting Heard's distribution of heroin. Aiding and abetting was defined and the jury was instructed that it required participation in a criminal venture in some way so that the purposes of the venture would be accomplished. The jury was informed it could not find Ford guilty of aiding and abetting the distribution of heroin unless it concluded that heroin was knowingly and intentionally distributed by Heard, pointing out that the indictment charged Ford with aiding and abetting Heard and that unless Heard's guilt was established, Ford could not be guilty of either aiding and abetting or of conspiracy.
It is this portion of my charge which Heard contends was prejudicial to him. Heard argues that the jury wanted to convict Ford and that in the face of my instructions, it convicted Heard as the necessary prerequisite for a guilty verdict as to Ford.
In view of United States v. Bryan, 483 F.2d 88 (3d Cir. 1973), United States v. Azadian, 436 F.2d 81 (9th Cir. 1971), and United States v. Provenzano, 334 F.2d 678 (3d Cir.), cert. denied 379 U.S. 947, 85 S. Ct. 440, 13 L. Ed. 2d 544 (1964), my charge as to Ford was probably more favorable than the Court of Appeals would require. In Bryan a defendant's conviction of aiding and abetting was affirmed despite the fact that his co-defendant, charged as a principal, had been acquitted because of a reasonable doubt as to his criminal intent. In Azadian, supra, the principal was found not guilty by reason of entrapment, but the conviction of the aider and abettor was affirmed. Provenzano states as a general rule that in order to convict a defendant of aiding and abetting, the proof must establish "the crime in question was committed by someone and that the person charged as an aider and abettor, aided and abetted in its commission." 334 F.2d at 691. It is not a prerequisite, however, that the principal be tried and convicted or in fact even be identified.
Based on these cases, it could certainly have been argued by the government that my charge was too favorable as to Ford. The corollary urged by Heard that the charge was therefore prejudical to him just does not follow. Under the facts in this case and the charge to that point, the limiting, cautionary words as to Ford were necessary. Prior to this time, I had given careful and explicit instructions concerning Heard. It then became necessary to consider the requisites for a guilty verdict as to Ford, a matter which could have been handled in one of three ways.
First, I could have ignored the logical and legal connection between aiding and abetting and the actual distribution of heroin and said nothing about it. To have done so would have been to reject common sense and the teachings of Provenzano, supra. See 334 F.2d 691.
Secondly, the language of Provenzano could have been employed and the jury told that Ford could only be guilty if he aided and abetted "someone" in the distribution of heroin. But, under the facts of this case, that "someone" could only have been Norman Francis Heard. Heard admitted he handed the heroin to Officer Mitchell. There was no testimony and no contention that anyone else had done so. At oral argument, counsel for Heard suggested that perhaps Ford might have entrusted the heroin to Slim who in turn asked Heard to deliver it. The introduction of another person between Ford and Heard would not affect the guilt of either. If Heard knowingly delivered heroin and if Ford participated in the crime in some way, both were guilty. Assuming there was a Slim, what he did or did not do, knew or did not know, would be immaterial as to their guilt.
Thirdly, the jury could have been instructed as it was -- that if Heard had knowledge, he could be found guilty of distributing heroin, and secondly, if, but only if, Heard was guilty, Ford could be found guilty of aiding and abetting and conspiracy.
I reject Heard's argument that the jury so wanted to convict Ford,
that to do so its members were willing to convict Heard although they thought he was innocent. To accept this contention would require me to believe that the jurors were so prejudiced against Ford
that they would ignore my instructions and their solemn oaths and further that they were stupid, hypocritical, and disingenuous. I have no basis for doing so.
Heard's trial was fair. Under all the circumstances, there was no error in the charge which prejudiced Heard. His motions must be refused.
AND NOW, this 27th day of September, 1977, for the reasons set forth in the foregoing opinion, the motion of Norman Francis Heard for a new trial is hereby refused. The defendant is ordered to report for sentencing on Friday, October 21, 1977, at 9:30 A.M., in Courtroom 6A, United States Courthouse, Philadelphia, Pennsylvania.
BY THE COURT:
J. WILLIAM DITTER, JR. / J.