The opinion of the court was delivered by: GILES
Defendants move for a new trial following their conviction for conspiracy to distribute heroin and for related substantive counts. The grounds raised by defendants are admission of evidence of other crimes, and lack of an impartial jury.
In addition, the court has raised sua sponte the question whether it erroneously excluded impeachment concerning relations between a government witness's wife and defendants. Because the last ground is plain error, a new trial will be granted.
The alleged error involving admission of evidence of other crimes breaks down into two categories: first, mention of methamphetamine or "speed"; second, heroin dealings not mentioned in the indictment or bill of particulars.
Defendants were indicted for conspiracy to distribute, and distribution of, heroin. Twice during the trial mention was made of methamphetamine or "speed."
This mention occurred twice during the testimony of government witness Lawrence Ford. Mr. Ford stated that on January 14, 1980, he went to the house of defendant Richard Jones with a government informant. The informant arranged a drug buy. Later, Mr. Ford and the informant were met at the parking lot of the Stenton Diner by a go-between who handed the informant a package containing a white substance, which turned out to be "speed." On March 25, 1980, Mr. Ford arranged to buy heroin through defendant Donald Nickens. This contraband was delivered at the Pickway Supermarket. In the same bag containing the heroin, Mr. Ford noticed a large amount of "speed."
Evidence of method was legitimately important to the government's case. Some defendants, particularly Richard Jones, limited their contacts with certain government witnesses by taking part only in the preliminary meeting, and not acting as intermediaries. The evidence against these defendants was partly circumstantial. Certain government witnesses participated in few or no preliminary meetings, but were present for many drug deliveries. Evidence that the deliveries used the same method, intermediaries, and packaging as in transactions where Richard Jones was known to have been at the preliminary meeting tended to tie him into other transactions.
Defendants are correct to point out that mention of methamphetamine involved some danger of unfair prejudice to their clients. Had defendants objected to this evidence, it might have been excluded. Defendants, however, failed to object or ask for corrective instructions. Because this evidence was relevant, brief, raised by the witness, rather than the prosecutor, and was of non-constitutional dimensions, I cannot find that its admission was plain error. See 1 Weinstein's Evidence P 103(06), at 103-50 to -51 (1980).
B. Other Heroin Transactions
Defendants raise as error evidence of heroin transactions mentioned neither in the indictment nor in the bills of particulars. The evidence encompassed transactions taking place from approximately January, 1980, to August, 1980. Count I of the indictment charged all defendants with conspiracy to distribute heroin during that period. Thus, although there may not have been a substantive count corresponding to each transaction in evidence, evidence of each transaction went directly to the conspiracy charge. Even if the transactions were omitted from the indictment and bills,
they were admissible under Rule 404(b).
Defendants also argue that even if admissible, failure to mention the transactions deprived them of an opportunity to prepare a defense. Defendants were not entitled to a list of all overt acts. See United States v. Armocida, 515 F.2d 49, 54-55 (3d Cir.), cert. denied, 423 U.S. 858, 96 S. Ct. 111, 46 L. Ed. 2d 84 (1975). Therefore, I can find no error in their admission.
II. LACK OF IMPARTIAL JURY
Defendant Donald Nickens contends that the jury believed testimony of police over that of other witnesses simply because they were police, thus violating their jurors' oaths. In particular, defendant argues that at least one juror was biased in favor of police and had lied about this bias during voir dire. In support of this contention, the attorney for defendant Michael Nickens states ...