positions of supervisory power in the drug organization which was the subject of the continuing criminal enterprise count.
D. Evidence Seized at 4619 Hutchinson Street and 704 West Rockland Street
Defendants contend that the Court erred in allowing the admission of testimony concerning searches executed pursuant to search warrants on September 12, 1981, at 4619 Hutchinson Street and 704 West Rockland Street and the fruits of these searches including large quantities of heroin, drug paraphanalia, and cutting agents used to stretch heroin. Defendants' contention is without merit. Sufficient evidence was introduced to connect these locations to the overall heroin operation conducted by defendants Dawson and Hoskins. These cutting houses were under the immediate supervision of Michael Johnson who was established through independent evidence consisting of the testimony of Simons and the intercepted telephone conversations between Johnson and defendants prior to September 12, 1982, to be a member of the conspiracy before the execution of the search warrants. See e.g. Wiretap Conversations (August/September, 1981); W-2(t) to W-8(t); W-10(t) to W-18(t); W-20(t).
E. Evidence Seized at Mr. Silk's on April 9, 1982
Defendants contend that the Court erred in allowing testimony concerning samples of methamphetamine found on the upper floors of Mr. Silk's, a bar on 52nd and Spruce Streets in Philadelphia, Pennsylvania, pursuant to a search warrant executed on April 9, 1982. Defendants contend that this evidence was inadmissible because it was obtained after the alleged conspiracy had ended on April 5, 1982, as a result of defendants' arrest. Defendants' contention is without merit. This evidence was admissible because it corroborated Simons' testimony that he received methamphetamine from defendant Dawson on April 5, 1982, which Dawson himself had obtained earlier that evening from Charles Broadnax out of a cash register on the second floor of Mr. Silk's. This evidence is probative to show that the methamphetamine did exist as Simons described it several days earlier.
F. Evidence of Two 55 Gallon Drums of Methylamine
Defendants contend that the Court erred in denying the motion to strike the testimony of Agent William Glantz who testified as to his observations concerning the purchase of two 55 gallon drums alleged to contain methylamine which were picked up in Wilmington, Delaware, in March, 1981. Defendants' contention is without merit. This evidence was directly probative of the conspiracy to manufacture and distribute methamphetamine as well as of the existence of a continuing criminal enterprise. Methylamine is an essential ingredient for the manufacture of methamphetamine and Agent Compton identified Dawson as one of the persons who picked up the drums. The connection of Dawson with the drums supports the above charges and it was not error to allow the testimony to stand. Moreover, no error was committed when the Court allowed testimony with respect to the amount of methamphetamine which could be manufactured from such a large quantity of methylamine and its potential value on the illegal drug market. This evidence was readily admissible with respect to the issue of whether defendants Dawson and Hoskins received a substantial income through the operation of a drug organization under the continuing criminal enterprise count.
G. Continuing Criminal Enterprise
Defendants Dawson and Hoskins assert that there was insufficient evidence from which a jury could find that defendants were engaged in a continuing criminal enterprise in violation of 21 U.S.C. § 848, and thus have moved for judgment of acquittal on Count Two of the indictment. In ruling on a motion for a judgment of acquittal under Fed.R.Crim.P. 29(c), the Court must view the evidence in the light most favorable to the government and resolve all reasonable inferences in its favor. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942). It is not the function of the Court to weigh the evidence or to determine the credibility of the witnesses. A jury's verdict must be sustained if there is substantial evidence to support it. Id. In the present case, the evidence sufficiently established that defendants Dawson and Hoskins engaged in a continuing series of violations of the Drug Abuse Prevention and Control Act, 21 U.S.C. § 801 et seq., that these violations were undertaken by Dawson and Hoskins in concert with five or more other persons with respect to whom Dawson and Hoskins occupied a position of management, and that Dawson and Hoskins obtained substantial income from the continuing series of violations. Voluminous testimony was submitted on the operations of the drug network established and managed by Dawson and Hoskins. For example, abundant evidence was presented connecting defendant Hardwick and co-conspirator Michael Johnson with the organization as lieutenants. See e.g. Wiretap Conversations, W-1(t) to W-5(t), W-8(t), W-13(t), W-15(t). Additional evidence established that the organization included local workers involved in purchasing and cutting the controlled substances in "cut houses" and in distributing the end product on the street level. Sufficient evidence was introduced to show that the drug operation was large in scale and that Dawson and Hoskins obtained a substantial income by virtue of their management positions. In sum, substantial evidence exists in the record to support each of the elements of 21 U.S.C. § 848 with respect to each defendant as required for a conviction. For this reason each of the motions for judgment of acquittal on Count Two must be denied.
H. Cross-Examination of Character Witnesses
Defendant Hoskins contends that the Court erred in ruling that the government could cross-examine character witnesses regarding their knowledge of his murder conviction because that conviction had been reversed upon appeal. This contention is without merit. A conviction known to the community is no different than an arrest and both have been held to be a proper subject for inquiry on cross-examination of a character witness. Michelson v. United States, 335 U.S. 469, 482-483, 93 L. Ed. 168, 69 S. Ct. 213 (1948). If a defendant wishes to introduce character evidence in support of his defense, the government has every right to test the basis for the reputation testified to by the witness and the credibility of the witness to bespeak the community opinion. Id.
J. Testimony of Police Officer Anna Law
Defendant Hardwick contends that the Court erred in allowing Philadelphia Police Officer Anna Law to testify that she found four bags of methamphetamine on or near defendant Hardwick's person on February 10, 1982, while Hardwick was driving a car used by defendant Dawson (the same car that Hardwick and Dawson were driving on April 5, 1982, a white Oldsmobile 98). The methamphetamine in question was thrown out the window when the police officer attempted to apprehend Hardwick and another individual in the car. Hardwick asserts that admission of this evidence was improper because the government failed to lay an adequate foundation to connect the methamphetamine to him. Defendant's argument is without merit. Prior evidence, consisting of Simon's testimony and the wiretap conversations, laid a sufficient foundation for introduction of Law's testimony. Prior testimony showed that Hardwick participated in the manufacture and distribution of methamphetamine as part of the drug conspiracy. The evidence that Hardwick possessed methamphetamine in a car used in furtherance of the conspiracy was probative of Hardwick's membership in the conspiracy. For these reasons, the Court did not err in the admission of this testimony.
K. Identification Testimony of Doris Demko
Defendant Hardwick contends that the Court erred in allowing testimony regarding an out-of-court identification of him made by Doris Demko, a waitress at the Howard Johnson's Restaurant located in Chester, Pennsylvania, since she was unable to identify him in the courtroom. This contention is without merit. Ms. Demko testified without hesitation that two black men came into her restaurant between 3:00 and 4:00 A.M. on April 5, 1982, and asked to use the telephone. In Court, Ms. Demko identified Dawson as one of the two men. Admittedly, Ms. Demko was unable to identify Hardwick as the other man after searching the courtroom. This, however, does not preclude her prior out-of-court identification of him since she was able to identify, in Court, the photograph of the other man which she had picked out on April 12, 1982. This photograph was that of defendant Hardwick. Under Fed.R.Evid. 801(d)(1)(C), such an identification procedure was proper and was not hearsay. See United States v. Lewis, 565 F.2d 1248, 1250-1252 (2d Cir. 1977) (similar identification procedure ruled admissible). Hardwick's arguments can only go to the weight of the evidence and not its admissibility.
L. Circumstantial Evidence v. Direct Evidence
Defendant Hardwick contends that the Court erred in instructing the jury that the law does not distinguish between direct and circumstantial evidence and that they should consider both. This contention is without merit. During closing arguments, counsel for Hardwick stated to the jury that circumstantial evidence may not be considered when direct evidence leads to a contrary conclusion. This statement of the law was clearly erroneous and was properly corrected by the Court. See United States v. Ramirez-Rodriquez, 552 F.2d 883 (9th Cir. 1977) (circumstantial and direct evidence are to be considered in the same manner). For this reason, the Court did not err in instructing the jury that it should consider both.
M. Admission of Co-Conspirator Statements
Without pinpointing specific instances, defendants generally contend that the Court erred in allowing the admission of certain hearsay co-conspirator statements. This contention is without merit. At the close of the government's case in chief, the Court exhaustively examined the evidence with respect to each of the defendants as alleged members of the conspiracy and made detailed individual findings. The Court found by a preponderance of the evidence, independent of any hearsay declarations or statements, that the conspiracy as outlined in the indictment existed and that each of the alleged co-conspirators were members of the conspiracy. United States v. Continental Group, Inc., 603 F.2d 444, 456-457 (3d Cir. 1979). For these reasons, no error was committed by the Court.
N. Polling of the Jury and Recording of Verdict
Finally, defendants contend that the Court erred in allowing any verdicts to be rendered after a poll of the jury indicating that the jury was unable to reach a unanimous verdict on Count Seven (Dawson), Count Twenty (Kenneth Shank), and Count Twenty-Two (Dawson and Hardwick). This contention is without merit. Prior to the polling of the jury, the jury informed the Court that it was not unanimous on Count Three (Dawson). All total, the jury was required to determine thirty-three separate counts. On five of these they were unable to reach a unanimous verdict. See Verdict Forms Submitted to Jury. Under Fed.R.Crim.P. 31(b), a partial verdict may be accepted in the Court's discretion if the jury has unanimously agreed on a verdict with respect to any defendant or individual count. United States v. DiLapi, 651 F.2d 140, 144-145 (2d Cir. 1981); United States v. Ross, 626 F.2d 77, 81 (9th Cir. 1980). Under Fed.R.Crim.P. 31(d), if a poll reveals that there is not unanimous concurrence with the announced verdict, the Court has the discretion to either discharge the jury or direct it to resume further deliberations. In the present case, the Court accepted the jury's verdict on those counts as to which there was unanimity, but declared a mistrial with respect to Counts Three, Seven, and Twenty-Two. On Count Twenty, a mistrial was declared only with respect to defendant Kenneth Shank. In view of the above cited Federal Rules of Criminal Procedure, there was no error in the Court's partial acceptance of the verdict.
Defendants argue that the Court should have directed the jury to return to the jury room and resume deliberations with respect to each and every count. Defendants' contention is without merit since the law is clear that the Court, having properly recorded a partial verdict, could have directed the jury to resume further deliberations only with respect to such counts on which the jury did not reach agreement. United States v. DiLapi, supra; United States v. Ross, supra. The case of United States v. Morris, 612 F.2d 483 (10th Cir. 1979), cited by defendants, is readily distinguishable from the present facts. In Morris, a juror voiced a not guilty vote with respect to one of five defendants during the poll of the jury in a prosecution of five defendants for violation of 18 U.S.C. § 1955, i.e., "conducting, financing, managing, supervising, directing or owning all or part of an illegal gambling business involving five persons or more." In that case, reconsideration of all verdicts was required due to the statutory requirement that the jury find five or more persons involved in the illegal gambling business, 18 U.S.C. § 1955(b)(1)(ii). Id. at 489-490. In the present case, no interrelationship existed between the verdicts returned by the jury and those counts on which the jury did not reach unanimity. Rather, the jury showed by its action that it heeded the Court's instructions and separately considered each defendant with respect to each count. For these reasons, no error was committed by the Court.
For all of the above reasons, all of the defendants' post-trial motions for a new trial, judgment of acquittal and motion for arrest of judgment were denied by the Court's Order dated December 13, 1982. The foregoing Memorandum Opinion is in support of that Order.