The opinion of the court was delivered by: BECHTLE
By Order dated May 27, 1980, this Court denied the post-trial motions of defendant William Curtis, III ("Curtis"), for a new trial or, in the alternative, for judgment of acquittal. This Memorandum Opinion serves to set forth the Court's reasoning and authority for that denial.
This criminal action stems from an indictment charging the defendant with three counts of illegally distributing methamphetamine, 21 U.S.C. § 841(a), and a fourth count of carrying a weapon during the commission of a drug offense, 18 U.S.C. § 924(c)(2). Following a three-day trial, Curtis was convicted by a jury on all four counts. The principle defense offered by Curtis at the time of trial was that of entrapment. The Government proved its case by offering the testimony of an informant, Daniel Davis ("Davis"), who had purchased drugs from Curtis on two separate occasions, and an undercover Drug Enforcement Administration ("DEA") agent who testified to receiving drugs from Curtis in the last charged transaction. All three transactions took place between September of 1979 and February of 1980 at an office building located in Jenkintown, Pennsylvania. The first two transactions involved quantities totalling approximately one ounce of methamphetamine and the last transaction, at which time Curtis was arrested by DEA agents, involved the distribution of approximately one pound of methamphetamine with a value of over $ 10,000.
After raising entrapment as his major defense, Curtis stipulated: (1) to each of the drug distributions on the dates alleged; (2) that the substances were methamphetamine, an illegal non-narcotic; and, (3) that he was carrying a weapon, without a permit, that was loaded and operable during the last drug transaction. Curtis testified in his own behalf and offered the testimony of several character witnesses.
335 U.S. at 479, 69 S. Ct. at 220 (footnotes omitted). See also 2 Weinstein, Evidence P 405(03) at pp. 405-21-30 (1979).
The Government, in the within case, attempted and intended to accomplish exactly what the Michelson case allows, even though here, unlike Michelson, the factual events about which questions were posed related to knowledge of the facts surrounding the very charges for which the defendant was on trial. Nevertheless, the purpose and probative value of the questioning was the same as in Michelson that being to assess the character witnesses' opinion of the character traits of the defendant and was not a "random shot" or a "groundless question" intended to inject unwarranted innuendo to the jury. 335 U.S. at 472 n.3, 481, 69 S. Ct. at 217 n.3, 221. The Government was not questioning the witnesses concerning the arrest and indictment for which Curtis was then on trial. See U. S. v. Lewis, 157 U.S. App. D.C. 43, 482 F.2d 632, 640-641 (D.C.Cir.1973). Rather, the questions went to factual issues concerning the distribution of drugs and the possession of a firearm that Curtis had stipulated to at the beginning of trial in conjunction with his defense of entrapment. Curtis was denying he possessed the guilty mind to commit the acts, but he was admitting the occurrence of the very factual acts for which he was on trial. Placed in that unique posture, the Court finds that, in this case, the questioning was permissible and probative of the character traits of Curtis allegedly known in the community at the time of trial for which the character witnesses were being challenged. See also N.T. 4-25 (Court's charge concerning character testimony); N.T. 2-2 (Court's instructions to the jury prior to testimony of character witnesses); N.T. 4-4, 11 to 13 (charge of Court concerning elements of entrapment defense and defendant's admission of factual events).
Second, Curtis objects to the following comment by the Government in its rebuttal argument:
Well, ladies and gentlemen of the jury, you remember the direct examination of William Curtis and you remember the cross-examination of William Curtis and there was just one question that was asked of Mr. Curtis.
And by that I ask the Court's leave to argue this, Your Honor.
And that is, why didn't you tell the story to anyone before?
Curtis claims that the comment by the Government violates the rule of U. S. v. Hale, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975), and Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), prohibiting negative inferential comments or questions by the prosecution as to a defendant's post-arrest silence after being given and exercising his Miranda rights. The standard, as set forth by the Supreme Court in Doyle, is that a negative inferential comment on the defendant's post-arrest silence would be:
426 U.S. at 618, 96 S. Ct. at 2245.
Therefore, the first question that the Court must ask under Doyle is whether the comment concerned Curtis' post-arrest silence or his pre-arrest silence. The Supreme Court has recently held that the Doyle decision is limited to inferences concerning post-arrest and not pre-arrest silence, and that comments on the latter were permissible and not violative of the Fifth Amendment right to silence. See Jenkins v. Anderson, 447 U.S. 231, 100 S. Ct. 2124, 65 L. Ed. 2d 86 (1980). See also U. S. v. Agee, 597 F.2d 350, ...