Appeal from a judgment of the District Court for the Eastern District of New York (Edward R. Neaher, Judge) after a jury trial convicting appellant Artuso and appellee Wedra of narcotics offenses in violation of 21 U.S.C. §§ 841, 846, the verdict as to appellee Wedra having been set aside by the district court. Affirmed as to appellant Artuso; reversed as to appellee Wedra, with directions to reinstate the jury's guilty verdict as to Wedra, to enter a judgment of conviction, and to impose sentence.
Before Timbers, Meskill, Circuit Judges, and Palmieri, District Judge.*fn*
Bradford Wedra (Wedra) and Vincent Artuso (Artuso) were found guilty on July 3, 1979, after a jury trial, of two counts of conspiracy to violate the federal narcotics laws and one substantive count of distributing cocaine. (21 U.S.C. §§ 841, 846). Prior to the imposition of sentence, each defendant moved pursuant to Fed.R.Crim.P. 29 to set aside the jury's verdict and for judgment of acquittal or, in the alternative, for a new trial because of claimed prejudicial errors in the conduct of the trial. Wedra also moved to dismiss the indictment under Fed.R.Crim.P. 12(b) on the ground that the Government's conduct in the case violated his right to due process of law. In Judge Neaher's memorandum of decision and order of October 15, 1979, the court concluded that Wedra was entitled to a judgment of acquittal and dismissal of the indictment against him, but that his co-defendant, Artuso, was not, and that the errors claimed would not warrant a new trial in his case.
We affirmed the judgment of the district court as to appellant Artuso by order entered February 26, 1980. We now reverse the district court's order as to appellee Wedra.
Bradford Wedra's older brother, Kenneth Wedra (Kenneth), was a New York State prisoner serving a sentence of 25 years to life for murder. In return for promises of protection and assistance when he came before State parole authorities, Kenneth agreed to served as a registered confidential informant for the federal Drug Enforcement Administration, as did his wife, Marie. Kenneth began to provide information to DEA Agent Magno, who was conducting an undercover investigation of heavy narcotics trafficking in the Bronx, where the Wedras were long-time residents. Artuso was one of the targets of the investigation.
Magno covered his visits to Kenneth in prison by posing as Marie's cousin and met Wedra there by chance in early 1978. When it became apparent that Kenneth's utility was limited by the circumstances of his incarceration, Kenneth and Agent Magno agreed to use Wedra as an intermediary to introduce Magno to the targets of the investigation and to vouch for him. Wedra did not know that his brother was an informant and he was not so apprised because of Agent Magno's concern about his loyalties and because of Kenneth's doubts about his brother's intelligence in dealing with undercover work. Magno's alleged understanding of the arrangement was that Wedra would merely make introductions and, with no further involvement, would not be subject to prosecution. Kenneth's alleged understanding was that the Government had promised that nothing would happen to his brother.
Wedra's involvement began in early 1978 with the delivery of a sealed message to one of his brother's criminal associates in the Metropolitan Correctional Center in Manhattan. On May 18, 1978, Magno and Wedra met to arrange an introduction to Artuso. Magno alleged that at that time, he discovered that Wedra was already involved in narcotics, and so informed Kenneth, who said there was no cause for concern since Wedra would "turn" and cooperate with the Government. At trial, however, Kenneth testified that Magno did not tell him of Wedra's criminal involvement until August, shortly before the September arrests took place.
Magno and Wedra met again on May 22, 1978 and the conversation, which was recorded by Magno, included Wedra's statements that he had found a cocaine supplier, could move the cocaine himself if Magno did not have enough money, and needed money to get out of debt. There was also some discussion of guns for protection. On May 24, 1978, Wedra introduced Magno to Artuso and a heroin purchase was arranged.
In the months following, numerous meetings occurred during which Magno recorded discussions about planned cocaine and heroin purchases. Two ounces of cocaine from Artuso were delivered by Wedra to Marie Wedra for Magno on June 29, 1978, and the next day, Magno paid Artuso $4,000 for the drugs. A one-eighth kilogram package of cocaine from Artuso was delivered by Wedra to Magno for quality testing on July 6, 1978, for which payment was later made to Artuso.
In early September, Artuso demanded a sample of the heroin before the entire transaction could take place. The transaction fell through when Wedra told Artuso of Magno's plans to have Wedra bring the money to Feliciano, an undercover police officer, instead of to the agreed-upon neutral location. Arrests were effected on September 8, 1978.
The basis of the district court's decision to set aside the jury's verdict was its conclusion that the Government failed to meet its burden of proving predisposition when Wedra raised the defense of entrapment. There was conflicting psychiatric testimony at trial as to Wedra's intelligence and ability to make independent judgments. The court credited the defense expert's testimony that Wedra was "functioning at a borderline retardation level of intelligence," found Wedra to be an "unwitting helper," and analogized the Magno-Wedra relationship to that of Edgar Bergen and Charlie McCarthy. The court characterized Wedra's motivation as a desire to assist Kenneth "in whatever manner possible out of loyalty and devotion bordering on the mindless."
The jury, rejecting the entrapment defense, found otherwise, as they were plainly entitled to do. The Government's psychiatric expert testified that Wedra's behavior was inconsistent in that he seemed somewhat mentally or intellectually retarded, but also gave extremely sophisticated answers and was "alert." He found Wedra to be "quite manipulative" and noted that he would be able "to get himself out of a difficult situation which would not be expected by (sic) a person who is supposed to have a limited mental capacity." The expert suggested that Wedra might be ...