Bаrbara Jane Henciar and George Victor Albert appeal from their jury convictions on two counts of an indictment charging them with possession with intent to distribute heroin, distribution аnd aiding and abetting these offenses, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. 1 The indict *491 ments arose from incidents that took place on April 29, 1975, when the appellants, a Government informant, Paul Charles, and a federal agent consummated a sale of heroin in Albert’s automobile. Prior to the sale in question, Paul Charles asked Henciar to furnish narcotics for his friend, who was a Government agent. Henciar agreed and on April 29,1975, she sold a quantity of heroin to the Government agent. Albert was present in the automobile at the time of the sale and аssisted in the transaction.
Upon conviction, Henciar was sentenced to an indeterminate period of six years under the Youth Correction Act, 18 U.S.C. § 5010(b). Albert received concurrent six year sentences on each count of the indictment.
Henciar asserts two grounds for reversal, contending that the district court erred: (1) in submitting her case to the jury beсause she had established entrapment as a matter of law; and (2) in permitting the introduction of testimony regarding a previous sale of heroin by her for the purpose of еstablishing her intent and predisposition to commit the subsequent offense for which she was indicted. We conclude that these contentions are without merit and affirm the conviction.
Albert raises three grounds for reversal, contending that the district court erred: (1) in refusing to dismiss one count of the two count indictment when both offenses arose from a single transaсtion; (2) in permitting the government to ask a witness for the purpose of identification whether he had ever seen Albert prior to the date of the alleged sale of heroin; and (3) in refusing to permit him to raise the defense of entrapment in spite of his refusal to admit that he was guilty of the crime. We conclude that these contentions are without merit but remand the case for the purpose of vacating one of the two concurrent sentences.
I. Barbara Jane Henciar
Appellant Henciar first contends that the district court erred in submitting the issue of entrapment to the jury because the defense had been established as a matter of law. This contention is without merit. The Supreme Court in
Sherman v. United States,
[Ojnly when undisputed facts establish that the criminal design originated with the Government agent, that the agent implanted in the mind of an innocent person the disposition to commit the offense, and that the defendant then committed thе offense at the urging of the Government agent can we conclude that entrapment was established as a matter of law. (Emphasis added).
Contrary to appellant’s assertion, a review of the record establishes to our satisfaction that there was substantial disputed testimony concerning whether the criminal design originated with the Government аgents or whether Henciar was predisposed to commit the crime. Moreover, the mere fact that the Government informant in the instant case on various occаsions attempted to arrange the purchase of narcotics from Henciar does not establish the defense of entrapment as a matter of law. As this court notеd in
United States v. Hairrell,
The defense of entrapment is not established as a matter of law by demonstrating that the government provided the opportunities or facilities for commission of the crime or that deceit was employed to induce a defendant to deal with government agents. If there is any showing of a predisposition on the part of *492 the defendant to commit the crime, it is for the jury to determine whether government agents actually implanted the criminal design in the mind of the defendant.
Accordingly, having found substantial disputed facts and having determined that there was no “patently clear” showing of inducement by Government agents, we conclude that the district court properly submitted the issue of entrapment to the jury.
Henciar next contends that the district court erred in permitting the introduction of testimony regarding a previous sale of heroin by her for the purpose of establishing her intеnt and predisposition to commit the offense for which she was indicted. Appellant bases this argument on the assertion that her intent was not in issue. This contention is without merit. By raising the defense of entrapment, Henciar put her intent in issue. Accordingly, evidence of other wrongful acts was admissible in order to show intent and predisposition. See Rule 404(b) Fed.R.Evid. We therefоre conclude that the district court properly allowed testimony concerning prior criminal acts for the purpose of demonstrating Henciar’s predisposition to sell heroin.
II. George Victor Albert
Appellant Albert first contends that the district court erred in failing to dismiss one count of the indictment because both counts arose from a single transaction. Albеrt argues that one of the two counts is superfluous since the indictment charges him with possession with intent to distribute heroin, distribution, and aiding and abetting the offenses. Title 21 U.S.C. § 841(a)(1)
2
makes it unlawful to “distribute” or to “possess with intent to distribute” a controlled substance. In
United States v. Stevens,
Accordingly, because Albert received identical concurrent sentences on each count of the indictment, his case must be remanded for the purpose of vacating one of the two concurrent sentences.
Albert next contends that the district court erred in permitting the Government to ask a witness for the purpose of identification whether he had ever seen appellant prior to the date of the criminal оffense. The testimony was as follows:
BY MR. MILLIKEN:
Q Agent Linoski, have you ever seen George Victor Albert on occasion other than the one you earlier testified to?
A Yes, sir.
Q Was that prior to or subsequent to the date of April 29, 1975?
A It was November of 1974.
MR. MILLIKEN: Thank you very much. No further questions, your Honor.
Albert contends that this testimony was intended to prejudice him by innuendo rather than to establish that the Government agent positively could identify him. Albert asserts that the testimony of the narcotics agent implied that he previously had been involved in narcotics. We find this contention to be without merit.
Albert finally contends that the district court erred in failing to permit him to raise the defense of entrapment in spite of his refusal to admit that he was guilty of the crime chаrged. On the other hand, the Government contends that one may not plead entrapment and nonparticipation in the alternative because the defense of еntrapment admits all elements of the offense.
See, e. g., United States v. Mitchell,
*493
The judgments of conviction of both appellants are affirmed except as to the sentencing of Albert. His case is remanded to the district court for the purpose of vacating one of the two concurrent sentences imposed upon him, in accordance with
Stevens, supra,
Notes
. 21 U.S.C. § 841(a)(1) provides:
(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—
(1) to manufacture, distribute, or dispense, or possеss with intent to manufacture, distribute, or dispense, a controlled substance;
18 U.S.C. § 2 provides:
(a) Whoever commits an offense against the United States or aids, abets, counsels, *491 commands, induces or procures its commission, is punishable as a principal.
(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
. See note 1, supra.