The opinion of the court was delivered by: DITTER
Paul Hill was charged with distributing heroin on six specific dates between March 13 and June 18, 1979, and with conspiracy to distribute heroin. He was found not guilty of Count I, conspiracy, and not guilty of Count II, which referred to the first date of distribution, March 13, 1979. Defendant did not deny those acts which would constitute the offense, but claimed that he was entrapped by government agents. Presently before the court are defendant's motion for judgment of acquittal or for a new trial. I find no merit in his contentions and for the reasons which follow, his motions must be refused.
Ian Daniels testified that he was paid to provide information to the government about traffickers in drugs. Hill and Daniels were casual acquaintances so casual, in fact, that Hill could not remember Daniels' name when Daniels contacted him at the men's clothing store where Hill worked. According to his own testimony, Hill immediately asked Daniels for a marijuana cigarette. Daniels then told Hill he was interested in buying heroin and asked Hill to help him obtain it. Hill testified that although he had smoked marijuana and taken cocaine, he had never used heroin nor had he ever been involved in its sale.
According to the defendant, there were three, four, or five occasions in the next few days when he saw Daniels and in addition, there were three telephone conversations. In these contacts, Hill said Daniels tried to get him to supply heroin. Hill became impressed by Daniels' need to obtain the heroin and as a result, contacted Leonard Newton (his co-defendant) whom he knew to be a dealer in illegal drugs. Hill explained that Newton was a good customer of his at the clothing store, one who spent a lot of money, drove a big car, and had a nice apartment which Hill had visited on several occasions. More significantly, Hill knew that Newton dealt in both marijuana and cocaine. In view of Daniels' need, Hill decided to get Newton and Daniels together as a favor. He told Newton about Daniels. Newton said he felt he could supply Daniels' need and gave Hill a small quantity of heroin as a sample which Hill passed on to Daniels.
Daniels then introduced Hill to Jerome Harris, and later to Miles Edwards, both of whom were undercover police officers working with the Drug Enforcement Administration. Subsequently Edwards explained to Hill that although Harris and Daniels might make minor purchases for him, he, Edwards, was the one who would handle large transactions. There were five ensuing purchases, the largest on June 18, being for $ 24,000. immediately after which Hill and Newton were arrested. As time passed, Daniels' role in contacts with Hill had become less frequent, and Daniels was not even present for the distributions which took place on April 23, June 12, and June 13. In fact, Hill even admitted telling Edwards not to bring Daniels to Newton's apartment any more apparently because the apartment had been raided and Newton thought that Daniels might have been responsible for tipping off the authorities. On the other hand, Hill took an active role in each of the sales.
1. Whether or not entrapment on the first date of distribution so pervaded the other incidents was a jury question.
Hill first contends that the not guilty verdict on Count II can only be interpreted as a finding that he was entrapped into making the first heroin distribution. It follows, he maintains, that the taint of entrapment so pervades the other five transactions that he is entitled to a judgment of acquittal as to them. I disagree.
The focal point of the entrapment offense is not the nature of the government agent's conduct, but instead, the predisposition of the defendant to commit the crime with which he is charged. United States v. Russell, 411 U.S. 423, 429, 93 S. Ct. 1637, 1641, 36 L. Ed. 2d 366, 371 (1973). I told the jury it would have to consider the evidence as to each count separately, and that it would also have to consider whether or not the pressures exerted by Daniels, which only concerned the obtaining of the initial sample, carried over from the first distribution to the second, or to the third, and so on. In short, I submitted to the jury the question as to whether or not the conduct of the government informant, Daniels, if it amounted to entrapment, so pervaded the subsequent events as to make them all a part of the first and thus illegal. In United States v. West, 511 F.2d 1083 (3d Cir. 1975), an informant provided West with drugs which in turn were purchased by a government agent. Thus, the government provided the drugs which the defendant was accused of selling. The Court of Appeals held that two counts of distribution could not stand under these circumstances.
However, the government's involvement with the defendant did not preclude his being found guilty on a third count of possessing drugs not supplied by the government.
In the instant case, the entrapment issue was fully and fairly submitted to the jury as to each count. While it is true that the logical interpretation of the finding of not guilty on Count II is to sustain the entrapment defense as to that count, Hill's own explanation of his actions after March 13 established beyond any doubt his predisposition to sell drugs on the subsequent occasions.
Hill and Daniels were only casual acquaintances. On the other hand, Hill and Newton were close friends. Hill had been a guest at Newton's apartment on several occasions. After the contact with Officers Harris and Edwards was established, Newton paid Hill and as Hill said, this money was a factor in his continued involvement. Finally, there was Hill's active role in the sales. He was not a mere conduit or passive passer Hill made the arrangements, quoted prices, explained quantity discounts, related the number of cuts which the heroin would take, counted the money for Newton, made telephone calls to Newton to set up the actual meeting points, and in general, acted for and with Newton in the distributions that were made.
After the first distribution the sample which Hill obtained from his co-defendant Newton Daniels had a limited and decreasing relationship with Hill. He had introduced Hill to Edwards and Harris. It was to them that Hill turned and it was to them that he sold. The rewards money came from Newton.
Hill's position is basic: once entrapped, always entrapped, no matter how much time passes and no matter how changing circumstances may alter an initial relationship.
Hill presented no citation that this is the law nor suggested any reason why it should be the law. I could find no case to support that idea and no policy reason occurs to me as to why, under the facts here, the limited role played by Daniels should shield Hill from responsibility for his part in the subsequent events. Under the rule of United States v. Russell, supra, the focus of inquiry is on the defendant's predisposition, not the conduct of the government agent. Here the defendant did more and more, the informer less and less. The issue of the defendant's predisposition was for the jury.
After deliberating several hours, the jury returned with two questions, one of which asked, "If the defendant was entrapped could the defendant be not guilty of all counts," and the other of which asked, "Can defendant be guilty of counts II to VII (distribution) if entrapment was involved in any other count?" I stated to the jury that I interpreted their questions to be really one: If there was entrapment as to any one count, does that mean that there was of necessity entrapment as to all of the other counts? The jury affirmed that this was the question it was asking.
I then repeated to the jury that if it concluded the government had not carried its burden to prove that the defendant had not been entrapped as to the first date, March 13, it would then have to consider the evidence as to each of the other counts to see whether the activity, threats, persuasion, cajolery, promises, flattery, or whatever it was that constituted entrapment as it referred to the first purported distribution, carried over to the next time and the time thereafter and the time after that. I said it did not follow as a matter of law that this conduct had to carry over, but that the jury could find that it did so. I also pointed out that the jury would not have to reach that conclusion because it could take into account, for example, that after the first transaction, Hill had received money from his co-defendant Newton. I also told the jury that in considering the entrapment defense, it could consider not only what Daniels had said to Hill prior to March 13 but that which each of the other officers had said to Hill at any time thereafter.
These instructions were an appropriate response to the jury's question, and as previously pointed out, a correct statement of the law ...