Appeal from a judgment of the United States District Court for the District of Connecticut (Burns, J.) convicting appellant Pagan of conspiracy and distributing heroin in violation of 21 U.S.C. §§ 841(a)(1), 846 (1976).
CARDAMONE, Circuit Judge:
The principal issue presented on this appeal is appellant Edwin Pagan's claim that his earlier Youth Corrections Act (YCA) conviction was improperly admitted into evidence at his trial. To resolve that question, we must determine whether a court's unconditional discharge of appellant prior to the expiration of the maximum sentence imposed and the resulting set-aside of that conviction constitute a finding that he had been rehabilitated and, if so, whether such a finding should have barred admission of the YCA conviction at appellant's trial.
In the summer of 1981 the Drug Enforcement Administration (DEA) employed Jose Rosario, an undercover informant, to establish himself unobtrusively in the Borinquen Cafe, a suspected meeting place for drug dealers, in Stamford, Connecticut. While frequenting the Cafe, Rosario became acquainted with appellant Pagan and later arranged for a "relative", actually DEA Agent Barry Abbott, to purchase heroin from Pagan. The sale occurred on June 18, 1981 when Pagan delivered approximately one ounce of heroin to Abbott. While the agreed purchase price was $3,000, Pagan was paid only $1,500 at the time; the agent promised the balance soon. Appellant later expressed concern about collecting the $1,500 balance from Abbott and his worry that Abbott might be a cop. Perhaps because of these reservations -- or maybe despite them -- Pagan elected to send a friend, Jesus Riviera, to collect the balance due on the first sale and to sell additional heroin. On July 17 Riviera met with DEA Special Agent Robert Breard and sold him one-half ounce of heroin. The agent, who was equipped with a transmitting device, recorded the conversation during the sale. The discussion concerned payment for the one-half ounce then sold and the $1,500 balance due Pagan from the June 18th sale. Riviera and Breard also discussed the availability and terms for the sale of higher quality heroin. During the course of this conversation, it was implicit that Pagan was the source of Riviera's supply. Riviera did not testify at appellant's trial, but the tape of this conversation was admitted into evidence against appellant.
Pagan and Riviera were subsequently arrested and charged in a five count indictment with violating several provisions of the Controlled Substances Act. 21 U.S.C. §§ 841, 846 (1976). Specifically, in Count One they were charged with conspiring to possess with intent to distribute, and conspiring to distribute, heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1). Counts Two and Three charged Pagan with the substantive offenses of distributing heroin on two instances on June 18, 1981 in violation of 21 U.S.C. § 841(a)(1). Counts Four and Five charged Riviera with two illegal distributions of heroin on July 17, 1981.
Prior to the commencement of a jury trial in the United States District Court for the District of Connecticut, before Judge Ellen B. Burns, Riviera pled guilty to Count One. The charges set forth in Counts Four and Five were then stricken and the prosecution proceeded solely against appellant. At trial Pagan relied upon the defense of entrapment. He took the stand and testified that Rosario had instigated both drug transactions and had coerced him into participating by asking him to act as a courier. Prior to the close of the evidence, Count Three (a charge of passing a sample on June 18) was dismissed or consolidated with Count Two, the sale count charged on the same date. The jury convicted appellant on all counts submitted to it. Following the denial of post-trial motions for dismissal and acquittal, appellant was sentenced on January 28, 1983 to one year in prison on Count One and to a like term on Count Two, together with a special term of parole for three years. These concurrent sentences are presently being served. From the denial of his post-trial motions and the judgment of conviction, Pagan has appealed.
Since two of the four issues raised, which were the subject of appellant's post-trial motions, seek a dismissal of the indictment, we discuss them at the outset. The first is a claim of outrageous government conduct. Appellant asserts three factors in support of this contention: police over-involvement in the creation of the offense, payments to the informant, Rosario, on a contingency basis, and lack of sufficient supervision of the informant immediately prior to the June 18th sale. Appellant relies principally on the rationale of the trial court in United States v. Brown, 462 F. Supp. 184 (S.D.N.Y. 1978), rev'd, 602 F.2d 1073 (2d Cir. 1979), which dismissed an indictment upon a finding of outrageous government conduct under arguably similar circumstances.
Appellant's claim of police over-involvement is less than persuasive; not only because this Court reversed and reinstated the indictment in Brown, but also because the three allegedly supporting factors fade upon analysis. The claim of police over-involvement simply rehashes the entrapment defense presented at trial. For example, appellant argues that government informant Rosario induced him into a one-time sale instigated by DEA agents. Of course, this is appellant's version of the events and is the same scenario he used at trial to support the entrapment defense. According to the record, the prosecution introduced evidence that Pagan offered to sell Rosario heroin. Rosario further testified that when he was present at the Borinquen Cafe prior to the June 18 sale, he observed Pagan conducting a drug deal and cutting heroin with other dealers. In this credibility match-up between appellant and the informant, the jury accepted Rosario's version of the events leading to the sale by finding Pagan guilty. More importantly, for the purposes of this appeal, we must view the evidence in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 86 L. Ed. 680, 62 S. Ct. 457 (1942).
The contingency fee payment, apparently a not uncommon form of remuneration, see e.g., United States v. Brown, 602 F.2d at 1075 ($500 paid to an informant for his role in the transactions leading to Brown's arrest), has not been held, in and of itself, to require dismissal of an indictment on a theory of outrageous government conduct. Similarly, the lack of supervision of the informant fails to provide sufficient grounds for reversal. The supervision of Rosario was concededly less than fool-proof, particularly in the search conducted by the DEA agents (they did not search his car) immediately prior to Rosario's departure to meet Pagan and escort him to the site of the June 18 sale. It is also obvious, however, that an absolute search for one ounce of heroin is not always practical; moreover, Agent Breard testified that he had worked with this informant for six years and found him trustworthy. In denying the post-trial motion Judge Burns noted that Rosario had been subjected during the trial to an extensive and wide-ranging cross examination. Thus, the trial court's denial of the motion to dismiss on the grounds of outrageous government conduct was an appropriate exercise of its discretion. See United States v. Williams, 705 F.2d 603 (2d Cir. 1983); United States v. Myers, 692 F.2d 823 (2d Cir. 1982) (Myers II), cert. denied, 461 U.S. 961, 103 S. Ct. 2437, 77 L. Ed. 2d 1322, 51 U.S.L.W. 3858 (1983); United States v. Myers, 635 F.2d 932 (2d Cir.) (Myers I), cert. denied, 449 U.S. 956, 66 L. Ed. 2d 221, 101 S. Ct. 364 (1980).
Appellant's other motion, which sought dismissal of the indictment on the grounds of ambiguity, deserves little comment. The indictment upon which Pagan was tried charged that he and Riviera did combine, conspire and confederate with "diverse other persons whose names are to the Grand Jury unknown" to distribute heroin. Since there was no evidence of "other persons" involved, the trial court responded to Pagan's claim of ambiguity by eliminating the quoted words and simply charging that Pagan and Riviera "willfully and knowingly did combine, conspire and confederate to possess with intent to distribute, and to distribute heroin." Inasmuch as the indictment informed appellant of the nature of the charge against him, did not subject him to being put twice in jeopardy and gave him sufficient notice of "the core of criminality" to be proven against him, United States v. Sindona, 636 F.2d 792, 797-98 (2d Cir. 1980), cert. denied, 451 U.S. 912, 68 L. Ed. 2d 302, 101 S. Ct. 1984 (1981), it was valid. See United States v. Silverman, 430 F.2d 106 (2d Cir. 1970), cert. denied, 402 U.S. 953, 29 L. Ed. 2d 123, 91 S. Ct. 1619 (1971). A certain amount of variance between the charge in an indictment and proof at trial is permitted, United States v. Heimann, 705 F.2d 662 (2d Cir. 1983), so long as this difference does not deprive a defendant of one of these significant protections afforded by a grand jury indictment. There is no such deprivation in this case. The objected to language contained in the indictment and eliminated from the charge amounted to no more than non-essential surplusage, and resulted in no prejudice to appellant.
The principal issue on appeal is whether the district court committed reversible error in admitting for the purpose of impeachment evidence that Pagan had previously been convicted under the Youth Corrections Act. 18 U.S.C. §§ 5005 et seq. (1976). On June 12, 1975, Pagan, then 19 years old, had pled guilty to two counts of a seven count indictment which charged him with interstate transportation of a stolen vehicle under 18 U.S.C. §§ 371 & 2313 (1976). Appellant's two year sentence of probation had been vacated prior to its expiration on May 11, 1977, pursuant to 18 U.S.C. § 5021(b) (1976), the set-aside provision of the Youth Corrections Act. In order to decide the propriety of admitting the Youth Corrections Act conviction, it must first be determined whether the set-aside of that conviction constituted a finding that Pagan was rehabilitated. The significance of a finding of rehabilitation is that under Federal Rule of Evidence 609(c)(1) evidence of a conviction is not admissible if "the conviction has been the subject of a . . . certificate of rehabilitation, or other equivalent procedure based on a finding of the rehabilitation of the person convicted." Pagan's earlier conviction was not the subject of a certificate of rehabilitation, but the ...