On Appeal from the United States District Court for the Eastern District of Pennsylvania.
Adams and Becker, Circuit Judges, and Sarokin, District Judge.*fn*
This is an appeal from convictions under the Comprehensive Drug Abuse Prevention and Control Act of 1970 (Controlled Substances Act), 21 U.S.C. §§ 84(a)(1), 846 (1982), and the federal aiding and abetting statute, 18 U.S.C. § 2 (1982). Two primary issues are presented. First, we must consider whether the district court erred as a matter of law in refusing to charge the jury that § 846 requires proof of an overt act to sustain a conviction for conspiracy to distribute heroin. Second, we must determine whether the district court committed plain error in its instruction to the jury on the charge of aiding and abetting. We hold that the district court did not err in either regard, and thus we will affirm the convictions.
In May 1982, Earl Wilson, an informant for the Philadelphia Task Force of the Drug Enforcement Administration, introduced undercover police officer Kenneth Lamar to Elijah Harris, a suspected heroin dealer, so that Lamar could purchase heroin through Harris. After several phone calls to his "source," Harris requested and received payment from Lamar. Harris then accompanied Wilson and Lamar to a house on Mt. Vernon Street in Philadelphia. While Wilson and Lamar remained outside, Harris went up to the house where a man, later identified as Gabriel Bey, the appellant here, was standing in the doorway. Harris and Bey conferred and then entered the house. A few minutes later Harris came out with five bundles of heroin which he gave to Lamar.
The next month, Lamar and Wilson returned to the Mt. Vernon Street house to obtain more heroin. Bey answered the door and explained that he had no heroin in the house, but could get some. He and Wilson then drove, in Bey's automobile, to a bar. Bey went into the bar and returned with a brown paper bag. Bey and Wilson drove back to the house where Lamar was parked, and, in Lamar's car, exchanged 10 bundles of heroin for $400. Bey wrote his telephone number on a card, and then handed the card to Lamar.
In February 1983, Wilson and Lamar went to the Mt. Vernon Street house where they again met Bey, who invited them inside. There, Lamar purchased 17 bundles of heroin from Bey for $300. Three months later, Bey and Harris were arrested.
The government returned a five-count indictment charging Harris and Bey variously with distribution of heroin, conspiracy to distribute heroin, and aiding and abetting the distribution of heroin.*fn1 After a two-day trial, a jury found both Harris and Bey guilty of all counts. Bey was sentenced to concurrent five-year terms of imprisonment for counts I, IV, and V, as well as concurrent five-year special parole terms for counts III, IV, and V. Bey filed a timely notice of appeal.*fn2
The first question is whether the Controlled Substances Act, 21 U.S.C. § 846 (1982), requires proof of an overt act in furtherance of the conspiracy. Section 846 provides:
Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment and fine or both which may not exceed the maximum punishment prescribed for the offense, the ...