ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 78-00365-03)
Before Hunter, Higginbotham and Sloviter, Circuit Judges.
Appellant, Kerby Keller, was indicted on January 25, 1979, along with four co-defendants, on a charge of conspiracy to distribute Phencyclidine Phosphate (PCP), a Schedule II, non-narcotic controlled substance, in violation of 21 U.S.C. § 841. The conspiracy allegedly ran from October 18 to October 21, 1977. After a four-day jury trial Keller was found guilty and sentenced to a term of three years' imprisonment. On appeal, Keller attacks the ruling of the trial court permitting cross-examination of Keller as to his participation in drug transactions which took place subsequent to October 21, 1977 and for which Keller had previously been tried and acquitted.
At the trial which is the subject of this appeal, the Government presented evidence that on or about October 18, 1977 one of the co-defendants telephoned John Anderson, a Government informant, from New York, seeking two pounds of PCP from Anderson, who lived in Atglen, Pennsylvania. Appellant Keller, along with another co-defendant, delivered the PCP to Anderson on October 20, 1977. On October 21, 1977, two other co-defendants arrived at Anderson's home in Atglen and picked up the PCP.
Appellant did not deny his participation in the conspiracy. Rather, his defense was entrapment. Keller testified that Anderson had been a good friend of his for several years and that he was concerned about Anderson's medical and serious financial problems.*fn1 Keller testified it was Anderson who first mentioned the possibility of selling PCP so that Anderson "could make money to help pay his bills." Keller testified he did not agree to Anderson's suggestion the first time it was made, and "not the first couple of times he mentioned it." He testified that he finally agreed to participate after Anderson once again said "that he could really use the money." It was then that Keller brought the PCP to Anderson's house. Keller also testified that "I told (Anderson) that I didn't want anything (money) out of it and (Anderson) said that he could make approximately $2000 out of it."
The Government attempted to undermine Keller's entrapment defense by proving that Keller was involved in other instances of drug dealing. The Government questioned Keller about a drug conviction involving a conspiracy to distribute methamphetamine to which Keller pled guilty in 1977. That evidence is not challenged in this appeal. The Government also questioned Keller about drug transactions that took place after the events charged in the indictment. Over defense counsel's objection that the questioning was not limited in its reference to a time period, Keller was asked about his involvement in deliveries of methamphetamine. In response, Keller testified he delivered the drugs to Anderson on two or three occasions, and on four occasions he delivered them to a third party "to help Mr. Anderson" . . . "(because) he got the money from it." The issue was further pursued by the Government in the course of its cross-examination of Keller, and when the defendant repeated that these transactions took place six or seven months after October 20, 1977, defense counsel objected. The objection was overruled.
The transactions which were the subject of this cross-examination were the basis of a prior federal prosecution of Keller in which he was charged with distributing methamphetamines to Anderson and another individual on approximately five occasions in 1978. In that case, as in this one, Keller testified, admitted the distribution, and pleaded entrapment as a defense, claiming he was induced by Anderson, acting as a Government agent, to commit the crime. He was acquitted of all charges.
Appellant contends that the district court erred in allowing into evidence his allegedly criminal conduct which occurred subsequent to the period covered by the indictment. He bases his claim of error on three grounds:
1) Although appellant recognizes that when a defendant raises an entrapment defense, defendant's prior conduct and character become relevant to the issue of predisposition, Sorrells v. United States, 287 U.S. 435, 451, 53 S. Ct. 210, 216, 77 L. Ed. 413 (1932), he claims that subsequent acts are inadmissible to show predisposition or intent. Appellant relies on this court's decision in United States v. Boyd, 595 F.2d 120 (3d Cir. 1978). There we held the Government could not rebut an anticipated entrapment defense by showing prior predisposition and intent through evidence of defendant's subsequent criminal activity. Id. at 126.
2) Appellant claims the evidence is inadmissible because the doctrine of collateral estoppel bars the evidentiary use of conduct for which defendant had been acquitted.
3) Appellant contends the court abused its discretion in admitting the evidence because it was virtually irrelevant, since it led to an acquittal, and hence was far more prejudicial than probative. He claims that, therefore, it ...