The opinion of the court was delivered by: SWEET
Defendant Vanessa Melton ("Melton") has moved post-trial for an acquittal or new trial pursuant to Fed.R.Crim.P. 29 and 33. For the reasons stated below, the motion is denied.
Melton was charged in Counts One and Four of a four-count indictment with conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and distribution of heroin and possession of heroin with intent to distribute on March 26, 1984 in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. Calvin McLean ("McLean") was charged in all four counts of the indictment and Jerry Braddy ("Braddy") and Nathan Graham ("Graham") were also charged as conspirators under Count One and as aiders and abettors of McLean in the actual distributions of heroin which formed the basis of Counts Two and Three, respectively. On August 2, 1984, after a four-day trial at which she did not testify, Melton was convicted on Count Four of the indictment charging possession of heroin with intent to distribute and distribution of heroin. The jury was unable to reach a verdict on the conspiracy count as to Melton.
Statement of the Government's Evidence
Early in 1984 Detective Marcellus Ward ("Detective Ward") of the Baltimore City Drug Enforcement Task Force was working in an undercover capacity with the New York Drug Enforcement Task Force under the name "Mike" or "Skinny Pimp." Detective Ward had been introduced to McLean by a confidential informant known as "Concrete" at 2531 Eighth Avenue, New York, New York. Detective Ward and Concrete had given McLean $3,500 in cash, in return for which McLean promised to provide them with an ounce of heroin with the understanding that he would eventually receive an additional $4,000. Concrete subsequently on January 19 lost the money when the transaction could not be completed. Thereafter, McLean offered Detective Ward a chance to earn back lost money by fronting him a "spoon" (i.e., a tablespoon full) of heroin, along with some dilutants (approximately 89 grams of mannitol and quinine).
On February 6, 1984 Detective Ward, wearing a Nagra body recorder, met with McLean in the vicinity of 2531 Eighth Avenue, where he gave McLean $1,000 for the heroin previously "fronted" him on January 19, and $3,000 for another purchase of heroin. In return, McLean provided him with 8.9 grams of 40.5 percent pure heroin. On March 14, 1984, Detective Ward, after making contact with McLean through Graham and Braddy, gave McLean an additional $2,000 for more heroin and on March 26, 1984, McLean called Detective Ward at his undercover telephone in Baltimore and told him to come to New York to pick up his package.
At approximately 9:00 p.m., Detective Ward, again wearing a Nagra body recorder, arrived in the vicinity of 2531 Eighth Avenue and met Braddy. At approximately 10:15 p.m., McLean arrived in a gypsy cab and advised Detective Ward that his girlfriend "Vanessa" would arrive shortly with the package containing five and one half "spoons" of heroin at the Blue Note Bar on the corner. During the next hour, McLean and Detective Ward waited in the latter's car. Finally McLean had Braddy take Detective Ward's car to pick up Melton. As Braddy departed, McLean and Detective Ward went across the street into the Blue Note Bar, which was noisy and crowded.
A short time later, Melton arrived, and McLean told her he had been concerned that she had been stopped or had gotten in trouble with the package. Detective Ward had seen Melton on two prior occasions, both in the vicinity of 2531 Eighth Avenue, once when she was with McLean and once when she was looking for McLean. Confirming that she had the package, Melton pulled out a tinfoil packet which was later established to have contained 15 grams of 34.5 percent pure heroin from her pocketbook and showed it to McLean. With Melton watching, McLean opened the packet, displayed its contents, and announced "that's white, that's good stuff." He then refolded it, and directed Detective Ward to the storefront on the first floor of 2531 Eighth Avenue to wait for Braddy's return. Melton also went into the storefront.
McLean took the tinfoil packet back from Detective Ward and gave it to Graham, and then retrieved it from Graham and placed it atop a refrigerator under a newspaper. Melton, McLean and Detective Ward went to the back of the storefront where McLean asked Melton if she had the other package. She replied in the affirmative and retrieved another tinfoil packet from her pocketbook similar to the one she had previously given McLean for Detective Ward. McLean opened the packet and with a $10 bill scooped out some of the white powder, refolded it, and placed it atop the refrigerator where he had previously placed Detective Ward's packet. Then McLean asked Melton for "pot," and she gave him a plastic bag containing a green leafy brown substance. McLean then removed the tobacco from a cigarette and replaced it with some of the marijuana from the plastic bag and some of the heroin from the $10 bill. He then twisted the top of the cigarette, lighted it, and passed it around to various people, including Melton, who puffed on it. Graham took a snort of the white power [powder] from the $10 bill. McLean's daughter, in Melton and McLean's presence, expressed her disappointment to Detective Ward that he had come to New York because she had expected to make some money by taking the package to him in Baltimore. No statements were attributed to Melton.
Subsequently, an individual unknown to Detective Ward drove up to the storefront in a red Porsche. McLean engaged in conversation and McLean gave the newcomer the second tinfoil packet. Braddy returned with Detective Ward's car, Detective Ward then returned to the DEA office with the first tinfoil packet of heroin Melton had brought that night.
On April 24, 1984, McLean, accompanied by another girlfriend of his called "Peaches," met Detective Ward at a Baltimore area restaurant. In the presence of Peaches and over dinner, McLean and Detective Ward negotiated for the purchase of additional heroin. After the meal, Detective Ward gave McLean a brown paper bag with cut newspaper, intended to look like a bag of cash, and McLean was arrested as he pulled out of the parking lot.
Later that same evening, Task Force Officers and agents went to the apartment complex at 309 North Broadway in Yonkers to execute an arrest warrant for Braddy. Their knock on the door of Apartment 2C was answered by Melton. She stated that Braddy was her boyfriend, that he lived there only occasionally and that she herself lived there. The officers and agents then left the apartment and then went to a pay phone about two blocks away, where they placed a call to an Assistant United States Attorney and received authorization to arrest Melton. As they were returning to 309 North Broadway approximately ten minutes later, they saw Melton enter a taxi which went to the railroad station. There they found Melton waiting on the platform for a northbound train, whereupon they placed her under arrest and advised her of her Constitutional rights.
At the DEA offices, Melton was informed that she was being charged with conspiracy and was readvised of her Constitutional rights by Agent Stanley Morrissey. She then asked Agent Morrissey, "How can I be charged with a sale if I didn't receive any money." Agent Morrissey then recounted the events of the evening of March 26, 1984 in the Blue Note Bar regarding Melton's providing the packet to McLean for Detective Ward, whom Agent Morrissey explained was actually an undercover agent named "Marty." Melton replied "Oh, Marty, or whatever his name is, he's one cute dude." Melton also gave her home telephone number as (914) 969-8020, the same number ...