Fletcher v. United States

• Decision Date: 29 September 1961
• Docket Number: No. 16294.,16294.
• Parties: George FLETCHER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

111 US App. DC 192, 295 F.2d 179 (1961)

George FLETCHER, Appellant, v. UNITED STATES of America, Appellee.

No. 16294.

United States Court of Appeals District of Columbia Circuit.

Argued June 26, 1961.

Decided September 29, 1961.

Mr. Gerhard P. Van Arkel, Washington, D. C. (appointed by the District Court) for appellant.

Mr. Frank Q. Nebeker, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Charles T. Duncan, Asst. U. S. Atty., were on the brief, for appellee. Mr. Daniel J. McTague, Asst. U. S. Atty., also entered an appearance for appellee.

Before WILBUR K. MILLER, Chief Judge, and EDGERTON and BASTIAN, Circuit Judges.

BASTIAN, Circuit Judge.

Appellant was indicted, tried before the court sitting without a jury, and convicted of violation of the narcotics laws. He raises the defense of entrapment. We find no merit in this claim.

The principal witness against appellant was Officer Hutcheson, a member of the Metropolitan Police Department attached to the Narcotics Squad and working in the capacity of undercover man in the illicit drug traffic in the District of Columbia. He was working under the supervision of two other officers of the Narcotics Squad.

On July 25, 1960, Hutcheson met one Burnett, a special employee of the Police Department, who had worked with him on five or six occasions prior thereto. They went to the area of 6th and Q Streets, N. W., where Hutcheson made the usual search to ascertain that Burnett had no cash or narcotics on his person and then gave him $6.00 for the purchase of narcotics, which Burnett said he could purchase from appellant. Burnett then walked, approximately thirty-five paces in front of Hutcheson, to 638 Q Street, N. W., where Fletcher lived. Noticing that Fletcher was seated across the street with another man, one Colbert, Burnett crossed the street and had conversation with them, in the sight of Hutcheson but beyond his hearing. Burnett gave Colbert the money which had been given him by Hutcheson. Colbert turned the money over to Fletcher, who then gave him a package, which he, in turn gave to Burnett. All of this was observed by the police officer, who immediately received the package from Burnett. Appellant does not challenge that the package was found to contain narcotics.

Later, on the affidavits of Hutcheson and Burnett, a search warrant was obtained for Fletcher's premises, and on these premises were found narcotics, needles and syringes.

Although Burnett was known to appellant, as well as to the Government, he was not called as a witness by either side. His testimony was not essential to prove the Government's case. No evidence was offered on behalf of appellant.

We see nothing whatsoever in the evidence which even remotely suggests "entrapment" and nothing to show that the offense was the product of activity created by the police officer. It is settled law that "artifice and stratagem may be employed to catch those engaged in criminal enterprises." Sorrells v. United States, 1932, 287 U.S. 435, 441, 53 S.Ct. 210, 212, 77 L.Ed. 413. The courts set up protection only for one who had had no previous disposition to commit the crime. We think it may be said that appellant was "the unwary criminal" rather than an "unwary innocent."¹ Certainly the record does not show as a matter of law that the police or any police informant had induced an otherwise unwilling person to commit a criminal act. Appellant is shown to have been known to Burnett as a person from whom narcotics could be purchased, and there was no showing of the slightest reluctance on the part of appellant to make the deal. He took the precaution of getting the cash before delivering the narcotics. Certainly there was no evidence of "extraordinary pressure" or any pressure whatsoever upon appellant by promises, threats, pleas of urgent need, or otherwise. On the contrary, the mere manner in which the sale was made indicates ready compliance. In our view, it is difficult to find a clearer case of readiness and predisposition to engage in the narcotics traffic than is shown here.

In making his finding of guilty, the trial court held that "there is no evidence of entrapment." The mere self-serving statement of counsel suggesting entrapment is not sufficient to cast doubt on the plain evidence that appellant was engaged in the traffic and ready, willing and able to make immediate delivery. See Trent v. United States, 1960, 109 U.S.App.D.C. 152, 284 F.2d 286, certiorari denied 1961, 365 U.S. 889, 81 S.Ct. 1035, 6 L.Ed.2d 199.

We think untenable the position that the trial court should have suppressed the evidence of violation of the narcotics laws seized under the arrest and search warrant because the warrant was based on actions allegedly constituting entrapment. Even if there had been entrapment — which we hold there was not — that position would extend the suppression of evidence doctrine to lengths beyond any which have been drawn to our attention.

We have examined the contention of appellant that the indictment was defective and find no error.

Affirmed.

EDGERTON, Circuit Judge (dissenting).

A police informer induced appellant to sell him heroin. "That being so, the burden was on the Government, by way of reply to the defense of entrapment, to prove a sufficient excuse for the inducement." United States v. Masciale, 2 Cir., 236 F.2d 601, 603. The reason for this rule seems clear. "The function of law enforcement * * * does not include the manufacturing of crime."¹ Ordinarily, government agents who induce crime are guilty of crime and the man they induce has the defense of entrapment. The Government must therefore prove extraordinary circumstances in order to convict.

Judge Learned Hand said: "two questions of fact arise: (1) did the agent induce the accused to commit the offence charged in the indictment; (2) if so, was the accused ready and willing without...