The opinion of the court was delivered by: SIMMONS
1. The federal grand jury sitting in the United States District Court for the Western District of Pennsylvania returned a true bill against the defendant on September 24, 1986, charging the defendant Samuel L. Gardner with two counts of unlawful distribution and possession with intent to distribute a quantity of cocaine, a Schedule II narcotic drug controlled substance, in violation of Title 21 U.S.C. 841(a)(1). Alleged offenses occurred on July 10, 1986, and on July 18, 1986, respectively.
2. Defendant thereafter was arraigned and entered a plea of not guilty.
3. Defendant's original counsel was permitted to withdraw and the Office of the Federal Public Defender was appointed to represent him. An extension of time in which to file motions was granted by this Court to the Federal Public Defender's Office.
4. Among the motions that the defendant filed was a timely Motion to Dismiss based on the defendant's assertion that the government violated his due process rights, with a citation of authorities.
5. The Court ordered that the parties brief this issue.
6. A hearing on this motion was held on December 5, 1986, and December 8, 1986.
7. At this hearing, the defendant presented three witnesses: Charise Thrasher, Othneil Lineberg and James Hill. The Court also heard the defendant testify pursuant to Rule 104 of the Fed. R. Crim.P.
8. The Government elected not to present any evidence of any kind in its behalf.
Based on the defendant's motion and the admissions made by the government in its response to that motion, and the government's brief as well as the testimony of the witnesses, the Court makes the following findings of fact and conclusions of law:
9. Sometime in the summer of 1986, Mr. Earl Heintzinger agreed to act as an informant for the United States Postal Inspectors. The Postal Inspectors assisted him in obtaining an 89 day temporary appointment as a postal worker for the purpose of facilitating their narcotics investigation at the Pittsburgh General Mail Facility (Paragraph 4 of Government's Response to Defendant's Motion to Dismiss Indictment and Memorandum of Law filed December 3, 1986). (H.T. 81, 82)
10. Throughout the time when Mr. Heintzinger dealt with the defendant Gardner, he was an agent of the government. See Sherman v. United States, 356 U.S. 369, 2 L. Ed. 2d 848, 78 S. Ct. 819 (1958). (H.T. 82, 89)
11. During the month of June, 1986, Earl Heintzinger a/k/a Big Bob a/k/a Big Robb, while working at the General Mail Facility on the North Side of the City of Pittsburgh continually asked Sam Gardner to obtain drugs for him, specifically cocaine. (H.T. 7, 9, 15)
12. On at least four occasions Heintzinger went out drinking with Mr. Gardner and flashed large amounts of money in front of Mr. Gardner. On several occasions, Mr. Heintzinger suggested they go to the Diamond Cafe in Market Square after they finished their work at the post office at approximately 6:30 A.M. (H.T. 7, 9, 11)
13. Heintzinger told Gardner that he had another job where he worked on city vehicles. Mr. Gardner at that time owned a 1974 automobile that needed considerable body work done on it including replacing the doors. Mr. Heintzinger told him that he would assist him in finding replacement doors and installing them if Mr. Gardner would assist him in acquiring drugs. (H.T. 7, 8, 9)
14. Gardner had no prior record and had never sold any drugs before. (H.T. 25, 101)
15. Gardner was reluctant to become involved and told Heintzinger that he did not know where to get any cocaine. (H.T. 9, 15)