The opinion of the court was delivered by: MOTLEY
Defendant, John Dillet, was charged in a two-count indictment, filed May 16, 1966, with a violation of Title 26, U.S.C. Sec. 4705(a).
The first count alleges that on July 26, 1965 defendant unlawfully, wilfully and knowingly sold to Cleophus A. Robinson, II, a narcotic drug, cocaine hydrochloride. The second count charges that a similar sale occurred on August 10, 1965. Robinson is an undercover agent of the Federal Bureau of Narcotics. Dillet admits the two sales charged in the indictment. He testified he never sold or delivered drugs on any other occasion. There was no direct evidence of any prior or subsequent sales.
Defendant asks this court to refrain from imposing the extremely heavy penalties mandated by law on the ground of entrapment.
His claim is as follows: The contraband was given to him by the Government's paid informer, a man known to defendant to be engaged in the sale of narcotics, who, knowing defendant was in need of money to pay his rent, asked him to deliver the drugs to Robinson on each occasion for a quick twenty-five dollars.
Defendant's testimony was consistent under cross examination. His answers to questions were direct and distinguished for candor.
There are three crucial disputed factual issues on the question of entrapment, the consideration of which have guided the court in deciding whether the Government carried its burden of proving, on the whole case, that defendant is guilty beyond a reasonable doubt. These issues are as follows:
First, did Westbrook, the Government informer, have narcotics on his person when he went with agent Robinson to meet defendant?
Second, if there is a possibility that Westbrook had narcotics on his person when he went with Robinson to meet defendant, did Westbrook ever have an opportunity to give the drugs to defendant?
Third, if there is a possibility that Westbrook had narcotics on his person, and if he had an opportunity to pass these narcotics to defendant, did Westbrook give the narcotics to defendant prior to each sale?
The evidence is undisputed that on the evening of July 26, 1965, at about 6 P.M., Donald Westbrook, the informer, met narcotics agents Robinson, Collins, and Kofman on the corner of 125th Street and First Avenue in the City of New York. The meeting had been arranged earlier by a telephone call between the informer and Robinson. It was understood that the purpose of the meeting was to make a narcotics "buy" from defendant later that evening.
Westbrook entered the rear of a Government vehicle containing the three agents. While sitting in the back seat of the car, the informer was searched by Robinson for narcotics. There is some doubt as to whether Robinson was in the front or rear seat while conducting the search, because of discrepancy in the testimony of the two agents, Robinson and Collins, who testified on the trial. The only other person who testified was defendant. This search did not reveal any narcotics on the person of the informer. However, Robinson admitted, under cross examination by defense counsel, that it is possible such an awkward search might not uncover ingeniously concealed contraband.
Kofman and Collins left after the search and entered another Government vehicle. Robinson and Westbrook proceeded in a Government vehicle to the corner of 145th Street and Amsterdam Avenue. They parked just beyond the corner facing west on 145th Street. Collins and Kofman drove to the same intersection. They parked on the southeast corner in order to observe the events that would take place. Collins testified that Westbrook then left the car alone and walked up Amsterdam Avenue towards 146th Street where he met defendant.
Westbrook knew where to search for defendant because defendant had chosen this vicinity as the place where he engaged in his illegal business of writing numbers. Defendant testified that in 1965, apparently a few months before the crimes at issue took place, he began writing numbers for which he has been four times convicted. He had been otherwise unemployed. Immediately prior to this period of unemployment and writing numbers, defendant worked at odd jobs. He worked in the garment district. He was employed approximately four years prior thereto at the Fisher Body Company in Tarrytown, New York. He left there in 1964. Defendant spent four years in the Army from which he was honorably discharged in 1954.
Westbrook, an acquaintance of defendant for about five or six years, met defendant who was standing either in front of or across the street from Singleton's Barbeque store. Defendant testified they talked for a few moments. Agent Collins, of course, could not hear the conversation but testified that defendant and Westbrook appeared to engage in conversation for a short time, thus corroborating defendant's testimony. Robinson testified that Westbrook walked up Amsterdam Avenue about fifty feet and called to defendant who then followed Westbrook to the car.
Defendant admits that Westbrook did not have to argue with him or persuade him to take the drugs around the corner to Robinson. He further admits that he knew the envelope contained drugs. The Government let stand defendant's testimony that Westbrook knew defendant needed money to pay his rent and other bills as the result of a prior conversation between defendant and Westbrook. The Government also left unchallenged defendant's assertion that he knew Westbrook sold drugs.
A few minutes after defendant talked to Westbrook, they walked to the agent's car, according to Collins' testimony. Defendant says he waited a few minutes and walked back to the car, where Robinson and Westbrook were seated, alone. There, defendant passed Robinson a New York Post newspaper. The centerfold of the paper held a glassine envelope which contained a white powder. Collins' testimony is that defendant appeared to engage Robinson in conversation a short time and left the car almost immediately after receiving the money from Robinson.
There is dispute as to the conversation which took place at the time of this transaction. Robinson testified that the following conversation took place: He said to defendant that he, Robinson, was told defendant had some good cocaine. Defendant replied he had "some very good cocaine" for sale and asked Robinson if he wanted to buy some. Robinson responded affirmatively and asked how much a half ounce would cost. Defendant said he had only a quarter of an ounce of cocaine with him and would sell it for $125.00. Robinson agreed to the price, handed defendant Government funds in this amount, and continued the conversation by making arrangements to meet defendant at a future date to make an additional purchase.
Defendant testified that the only conversation was that regarding the price. "He asked me how much is it and I told him," defendant said. "I told him it was $125.00." Defendant said he counted the money, put it in his pocket, and returned to the ...