The opinion of the court was delivered by: BRODERICK
Defendants were charged in a five-count indictment with drug-related offenses. Specifically, Count I charged the defendants with conspiracy to distribute heroin in violation of 21 U.S.C. § 846. Defendant Raymond Gregg was charged with distribution of heroin in Counts II, III, and IV of the indictment in violation of 21 U.S.C. § 841(a)(1). Count V of the indictment charged defendant Ronald James with aiding and abetting Gregg's distribution of heroin in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On January 7, 1983, defendant Gregg entered a plea of guilty on Counts I, II, III, and IV of the indictment. Also on January 7, defendant James was tried on Counts I and V of the indictment before this Court sitting as a finder of fact. After the close of the 1-day trial, this Court found James guilty beyond a reasonable doubt of conspiracy to distribute heroin and aiding and abetting the distribution of heroin. Defendant James has filed motions for judgment of acquittal and a new trial. For the reasons hereinafter set forth, the Court will deny defendant James' motions.
Based on the evidence presented at trial, the Court finds the following facts were established beyond a reasonable doubt. On April 21, 1982, Government agents Mark Moger, Frank Lee, and informant Evelyn Lewis, working as part of a Drug Enforcement Administration task force, sought to make a purchase of drugs at the Little Six bar in West Philadelphia. Moger and Ms. Lewis entered the bar while Officer Lee observed from the street. Ms. Lewis approached defendant James, whom she knew, and asked him if he had heroin to sell to Moger. James replied that he did have heroin but was hesitant to sell it to Moger, whom he did not know. Ms. Lewis then saw Raymond Gregg, whom she knew, in the bar and asked if he would aid in the sale of heroin from James to Moger. Gregg said he would. Gregg then approached James. Gregg and James left the bar and talked outside briefly and strolled away from the bar for a short while. Gregg then re-entered the bar and asked Moger for $350 cash, which Moger gave to Gregg. James re-entered the bar and went to the men's room in the bar. Gregg followed him into the men's room where they were alone for several minutes. James then left the rest room, counting money as he exited. Subsequently, Gregg emerged with the heroin, which he gave to Ms. Lewis and Moger.
Gregg stated that he had exchanged the $350 cash for heroin with James while they were alone in the bathroom. He then asked Moger for some money as compensation for his efforts in arranging the sale with James. Moger gave Gregg $15. Moger and Ms. Lewis then left the Little Six bar and rejoined Officer Lee. The substance obtained from defendants James and Gregg was tested and found to be heroin.
In ruling on defendant James' motions, the Court must determine whether the evidence, when viewed in a light most favorable to the Government, was such that a jury could have found beyond a reasonable doubt that the defendant was guilty as charged. Glasser v. United States, 315 U.S. 60, 80, 86 L. Ed. 680, 62 S. Ct. 457 (1942); United States v. Phifer, 400 F. Supp. 719, 724 (E.D. Pa. 1974), aff'd, 532 F.2d 748 (3d Cir. 1976). Evidence sufficient to support a conviction may be obtained by either direct or circumstantial evidence, or both. United States v. Miah, 433 F. Supp. 259, 264 (E.D. Pa. 1977).
Title 21, United States Code, § 846 provides, inter alia,
Any person who attempts or conspires to commit any offense defined in this chapter (violation of the Controlled Substances Act) is punishable by imprisonment or fine or both . . . .
Unlike the general federal criminal conspiracy statute which is codified at 18 U.S.C. § 371, the Controlled Substance Act conspiracy statute (21 U.S.C. § 846) does not require that an overt act in furtherance of the conspiracy be committed as a precondition to conviction. See United States v. Dreyer, 533 F.2d 112, 117 n. 6 (3d Cir. 1976); United States v. De Jesus, 520 F.2d 298 (1st Cir. 1975). Thus, to support a conviction for a violation of 21 U.S.C. § 846, the Government must produce sufficient evidence to prove beyond a reasonable doubt that the conspiracy was knowingly formed and that the defendant wilfully participated in the unlawful plan, with the intent to advance or further the illegal purpose of the conspiracy. See United States v. Lum, 466 F. Supp. 328, 331 (D. Del. 1979). See also United States v. Meyers, 646 F.2d 1142, 1143-44 (6th Cir. 1981); United States v. Thompson, 533 F.2d 1006, 1009 (6th Cir. 1976), cert. denied, 429 U.S. 939, 50 L. Ed. 2d 308, 97 S. Ct. 353 (1976).
The physical, observed conduct of defendants James and Gregg clearly indicated that they wilfully formed a conspiracy to distribute heroin, that defendant James wilfully became a member of said conspiracy and that he participated in the plan in order to further the plan's illegal purpose. The defendants also committed overt acts in furtherance of the conspiracy. Their actions at the Little Six bar clearly show them to have acted in concert. Their discussion outside the bar, their movements inside the bar, the exchange of $350 for heroin, and their conduct in the bar is evidence that there existed a conspiracy to sell heroin to Moger and Ms. Lewis. Under these circumstances, it is clearly proper to consider the statements of defendant Gregg. These statements and the physical conduct of defendant James establish beyond any reasonable doubt defendant James' participation in the conspiracy and his aiding and abetting of Mr. Gregg in the sale of heroin to Moger.
Federal Rule of Evidence 801(d)(2) specifically provides that
A statement is not hearsay if -- The statement is offered against a party and is . . . (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
In order for statements to be admissible under this section of the hearsay rule, the Government must prove participation in the conspiracy by each defendant against whom coconspirator statements are offered "by a fair preponderance of the evidence independent of the hearsay utterances." United States v. Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969), cert. denied, 397 U.S. 1028, 90 S. Ct. 1276, 25 L. Ed. 2d 539 (1970). See also United States v. Continental Group, Inc., 603 F.2d 444, 456 (3d Cir. 1979), cert. denied, 444 U.S. 1032, 62 L. Ed. 2d 668, 100 S. Ct. 703 (1980). The threshold requirement for admissibility of coconspirator statements is satisfied when the Government presents evidence showing "a likelihood of an illicit association," United States v. Bey, 437 F.2d 188, 190 (3d Cir. 1971). See also United States v. ...