The opinion of the court was delivered by: CONNER
This criminal case, in which defendants Angel Betancourt and Ronald Brown were charged with conspiracy to distribute codeine, distribution of codeine and possession of codeine with intent to distribute it, was tried by the Court without a jury on September 10 and 11, 1984. This Opinion incorporates the Court's findings of fact and conclusions of law pursuant to Rule 23(c), F.R.Crim.P.
The uncontradicted testimony establishes the following facts:
On May 29, 1984, Officer Rodney White of the New York Police Department and a backup team were engaged in a "buy and bust" operation on the lower East Side of Manhattan. White, acting in an undercover capacity as a heroin purchaer, and accompanied by a second undercover officer, went to the corner of East 11th Street and Avenue B where they saw defendant Brown rounding the corner.Because Brown looked "street wise," White approached him and asked him where he could buy some "D" (heroin). Brown said that he had none to sell but could take White to someone who was dealing. Brown led the two undercover officers two blocks up Avenue B to the corner of East 13th Street. There Brown pointed to defendant Betancourt and said "There's my man." Brown thereupon left the two officers, walked over to Betancourt and talked with him briefly. Brown then returned to the officers and told White to go over to Betancourt.
White did so and asked Betancourt for a "bundle" (ten "dime" glassine bags normally retailing for $10 each). Betancourt replied that this would cost White $100. White thereupon handed Betancourt $100 in prerecorded currency and received in exchange ten glassine envelopes containing a white powder.
After the transaction, Brown and the two officers walked back down Avenue B toward 12th Street. En route, White signalled to a member of the backup team, who had been conducting surveillance, that the "buy" had been completed.Before they parted, Brown told White that he had no money and White handed a $1 bill.
Betancourt followed Brown down Avenue B and, after Brown left the officers, Betancourt joined him and the two emerged and walked together on East 11th Street where they were arrested by Police Officers Fitzpatrick and Morsoni of the backup team, acting on the basis of a report of the transaction and descriptions of the perpetrators which they had received by radio.
When the defendants were searched incident to the arrest, Betancourt was found to have in his possession the $100 in pre-recorded currency, and Brown had a single glassine bag containing a white powder.
The ten glassine bags purchased from Betancourt and the single glassine bag found in Brown's possession at the time of the arrest all bore the stamp "DD" in red ink. Subsequent laboratory tests of the powder contained in all eleven of the bags showed that each contained a mixture of codeine, aspirin and thorazine, with no caffeine present.
Betancourt testified that the white powder he had delivered to the undercover officer and to Brown had been prepared by him by crushing some aspirin tablets which he had purchased in a Canadian pharmacy several years earlier. He added that the aspirin bore the brand name "222" and had been selected by him off a self-service shelf in a section marked "Aspirin." He said he did not know that this product contained codeine.
In rebuttal, the Government called Dr. John Stanley Weyman, a physician employed by Merck, Sharp and Dohme, the parent company of the maker of 222, who testified that 222 contains codeine, aspirin and caffeine.
Count One -- Conspiracy to ...