United States v. Sherman

Citation200 F.2d 880
Decision Date16 December 1952
Docket NumberNo. 29,Docket 22392.,29
PartiesUNITED STATES v. SHERMAN.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

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 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 1st, 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 experiences 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 good-sized 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 get 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 upon a meeting, at which Sherman told him that he had bought a quantity of the drug — presumably one-sixteenth of an ounce — for $25 which he would divide, if Kalchinian paid him $15.00 — $12.50 for the half delivered, and $2.50 for cab fare and his trouble. That was the first sale and the second, which took place about a week later, was precisely like it: that is, Sherman again called him up and arranged for a meeting where Sherman's purchase was divided between them. Neither of these sales was among those charged in the indictment. Having in this way started a course of buying, the agents of the "Bureau of Narcotics" arranged that the next time Sherman should ring up to fix a meeting, some of their number should be nearby, and the customary procedure should be set going: the preliminary search of the decoy, the delivery of marked money to him and upon his return from the purchase an immediate search of his person for the drug. The testimony would justify a finding that the sales in the indictment were made in performance of an understanding between the two that, as Kalchinian was likely from time to time to be in need of heroin and as Sherman was likely from time to time to be able to supply his needs, he should ring up Kalchinian whenever he learned that a new supply was available and inquire whether Kalchinian had any use for it. Kalchinian was of course free to put an end to this arrangement but it was in force at the time of each of the sales in question.

Before the decision in 1932 of the Supreme Court in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, there had been a good many decisions in the lower federal courts that there were occasions on which it was a defence to an indictment that agents of the United States had induced the accused to commit the offence charged. Nevertheless it is the two opinions in that case that have become the authoritative exposition of the doctrine in lower federal courts, for the Supreme Court has not said anything since then to qualify them. Therefore, we shall not go over the earlier authorities, but will start with what was there laid down. Two views emerged: the minority thought that procurement of the offence by an agent of the prosecution was always a defence without more; the majority thought that there were occasions on which it might be legitimate. However, the majority did not try to lay down what those occasions were beyond saying — 287 U.S. at page 451, 53 S.Ct. at page 216 — that "the predisposition and criminal design of the defendant are relevant"; and that "the controlling question" is "whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offence which is the product of the creative activity of its own officials." The only instance in which we have ourselves attempted to define the meaning of these phrases was United States v. Becker, 2 Cir., 62 F.2d 1007, 1008, decided in 1933, where we suggested three excuses for an inducement: "an...

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  • U.S. v. Dion
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 20 de maio de 1985
    ...an emotion is out of place, if they are already embarked in conduct morally indistinguishable, and of the same kind."); U.S. v. Sherman, 200 F.2d 880, 882 (2d Cir.1952) (Predisposition is present only where the accused was seeking "to realize his preexisting purpose" and was "awaiting any p......
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    • U.S. Court of Appeals — Second Circuit
    • 22 de junho de 1979
    ...Entrapment The law of entrapment in this Circuit is clear, and follows the teachings of Judge Learned Hand in United States v. Sherman, 200 F.2d 880, 882-83 (2d Cir. 1952). As Judge Hand there stated, an entrapment claim presents two "(1) did (a Government) agent induce the accused to commi......
  • Robison v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 3 de julho de 1967
    ...— embodies one of the most confusing concepts in the law. Compare also, e. g., what Judge Learned Hand wrote in United States v. Sherman, 200 F.2d 880 (2d Cir. 1952) with what Chief Judge Aldrich recently wrote in Kadis v. United States, 373 F.2d 370 (1st Cir. 1967). Cf.: United States v. B......
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    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 29 de outubro de 1993
    ...Sorrells v. United States, 287 U.S. 435, 458, 53 S.Ct. 210, 218, 77 L.Ed. 413 (1932) (concurring opinion); United States v. Sherman, 200 F.2d 880, 882-83 (2d Cir.1952). The distinction became blurred when in later cases the burden was placed on the government to prove both elements, lack of......
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  • Race, Entrapment, and Manufacturing 'Homegrown Terrorism
    • United States
    • Georgetown Law Journal No. 111-3, March 2023
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    ...propensity to commit the crime.’” (quoting United States v. Watson, 489 F.2d 504, 509 (3d Cir. 1973)). 174. United States v. Sherman, 200 F.2d 880, 883 (2d Cir. 1952). 414 THE GEORGETOWN LAW JOURNAL [Vol. 111:381 can easily meet this burden by pointing to the various tactics used by informa......

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