200 F.2d 880 (2nd Cir. 1952), 29, United States v. Sherman

Docket Nº:29, 22392.
Citation:200 F.2d 880
Case Date:December 16, 1952
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 880

200 F.2d 880 (2nd Cir. 1952)




Nos. 29, 22392.

United States Court of Appeals, Second Circuit.

December 16, 1952

Argued Nov. 3, 1952.

Henry A. Lowenberg, New York City, for appellant.

Mortimer C. O'Brien, White Plains (Myles J. Lane, U.S. Atty. for Southern District of New York, New York City, Thomas F. Burchill, Jr., and Harold J. Raby. Asst. U.S. Attys., New York City, of counsel), for appellee.

Before SWAN, Chief Judge, and L. HAND and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal from a judgment of conviction under an indictment in three counts for selling narcotics, 1 each in identical words except that they laid the sales at different dates: i.e., that the accused 'did

Page 881

receive, conceal, sell and facilitate the transportation, concealment and sale' of heroin. The evidence proved beyond dispute that Sherman, the accused, on three separate occasions- November 1, November 7th and November 16th, 1951- sold heroin to one, Kalchinian, whom the 'Bureau of Narcotics' had employed as a decoy to make a case against him; and his only defence was, and is, that he was 'entrapped' to commit the crimes. That issue the judge left to the jury over Sherman's objection that the 'entrapment' had been proved. Sherman did not take the stand, and the only proof of the sales was the testimony of Kalchinian, who swore that he had been an addict to the drug and that, when he made the purchases from Sherman, he was under criminal charges for having dealt in narcotics unlawfully. Moreover, when he bought, he was acting as an agent of the Bureau of Narcotics, and it was his job 'to go out and try to induce a person to sell narcotics.' During the autumn of 1951 he had been a patient of a Dr. Grossman who was treating him to rid him of the habit, and it was in Grossman's office that he met Sherman, who was also an addict and a patient of Dr. Grossman on the same quest. The two became acquainted in this way, but nothing took place between them that was relevant until after several interviews. On one occasion, when they were both at the same pharmacy to get their prescriptions filled, Kalchinian asked Sherman 'what his experience had been when he was using narcotics and he told me, and I asked him then where he was getting it and the quality of the narcotics he had been purchasing and he told me.' He said he had been getting 'fairly good quality * * * from a fairly goodsized operator and I asked him whether I could meet the man.' Sherman answered that this would be difficult because the 'man' was going out of the business; but finally, in answer to Kalchinian's question whether there was 'any possible chance for you to buy it from this man, ' Sherman said that he could do so. Kalchinian then asked how small a dose he could get and they agreed that Sherman should buy one-sixteenth of an ounce and split it with Kalchinian, who 'asked him to try and do that, and asked him if I could gent in touch with him. He didn't encourage me, he didn't tell me. He said he would call me and I gave him my phone number * * * and he promised to call me there.' After two or three calls to tell Kalchinian that he had not been successful, Sherman finally rang him up about the first of September and they arranged...

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