321 F.2d 72 (1st Cir. 1963), 6073, Whiting v. United States

Docket Nº6073.
Citation321 F.2d 72
Party NameJames WHITING, Defendant, Appellant, v. UNITED STATES of America, Appellee.
Case DateJune 28, 1963
CourtUnited States Courts of Appeals, Court of Appeals for the First Circuit

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321 F.2d 72 (1st Cir. 1963)

James WHITING, Defendant, Appellant,

v.

UNITED STATES of America, Appellee.

No. 6073.

United States Court of Appeals, First Circuit.

June 28, 1963

Heard April 1, 1963.

Certiorari Denied Oct. 21, 1963. See 84 S.Ct. 158.

Page 73

Charles F. Choate, Boston, Mass., for appellant.

William J. Koen, Asst. U.S. Atty., with whom W. Arthur Garrity, Jr., U.S. Atty., was on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

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ALDRICH, Circuit Judge.

The defendant was indicted in six counts for illicit transactions in narcotics on May 3, June 28 and July 10, 1959. At the trial he admitted making transfers of narcotics on these dates to one Peterson, a government agent, but defended on the grounds that he acted only as Peterson's agent rather than as a principal, and that, in the alternative, he had been entrapped. Following a jury trial he was convicted on all counts. We reversed for errors in relation to the entrapment defense, and ordered a new trial. Whiting v. United States, 1 Cir., 1961, 296 F.2d 512. At the second trial the defendant was acquitted on four counts, and found guilty with relation to the transaction on July 10. He again appeals.

The defendant argues that the evidence shows entrapment as matter of law. 1 In spite of the acquittals on the earlier transactions, in order fully to consider this contention we must go back to the beginning.

Taking the evidence most favorable to the government, the jury was warranted in finding that on May 3, 1959 Peterson sought and obtained entrance to the defendant's apartment in Springfield, Massachusetts, where he represented himself to be a tobacco worker from Connecticut acquainted with a Hartford woman known to the defendant's wife. After Peterson talked with the defendant and his wife about people and 'various clubs' he allegedly frequented in Hartford, the defendant asked him whether there was 'much stuff in Hartford.' 'Stuff' quite apparently meant narcotics, which had not been previously referred to. Peterson replied that there was some, and asked if there was 'much stuff in Springfield.' To this defendant answered in the affirmative, and asked Peterson if he was a user. Peterson said that he was not, asked defendant if he was, and received an affirmative answer. Peterson then asked defendant if he had any narcotics for sale, to which defendant replied that he had none at present, but that he had a friend who had. Peterson requested an introduction. Defendant made an unsuccessful attempt to place a telephone call and he and Peterson then left the apartment. Subsequently they entered another building, where they had a discussion of price. Peterson gave the defendant $10 in advanced government funds. Defendant went upstairs and was heard to speak to a man called Jim. No introduction of Peterson took place. On defendant's return he gave Peterson two packets later found to contain heroin. He also gave him a slip of paper on which was written his telephone number in case Peterson wanted more 'stuff.'

Although he admitted this transfer of narcotics, and giving Peterson his telephone number, the defendant otherwise told a quite different story, particularly as to Peterson's persuasive efforts to induce him to act. 2 The jury, of course, did not have to accept defendant's account.

After the first visit Peterson returned several times to the defendant's apartment and sought to purchase more narcotics. On each occasion the defendant said he was not going to deal with him further until he had checked on him, and that he had not done so. On June 28 Peterson and a 'special' Bureau employee who was an acquaintance of the defendant's met the defendant on the street. After a conversation they went to another building. Peterson gave the defendant $10 and after the defendant entered the building he returned and gave Peterson two small packets which later proved to contain heroin.

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On July 10 Peterson again visited the defendant's apartment. The defendant's wife asked him if she had not seen him riding with the Springfield police. Peterson denied the accusation and produced a driver's license and automobile registration with a fictitious name and address. The evidence would warrant a finding that the defendant or his wife did some checking with respect to the license. Thereafter the defendant said he would supply Peterson that night. Later, on the street, Peterson told the defendant he wanted the same amount as before. After the defendant absented himself for some time he returned and gave Peterson two packets in exchange for $10 then paid to him. These packets, also, proved to contain heroin. Finally, there was evidence of an admission by the defendant warranting a finding that he kept some of the money.

The government offered no evidence suggesting why Peterson initially selected the defendant as a likely, or even possible, participant in a narcotics transaction. At the first trial evidence admitted in this regard was hearsay of such a distant nature that it led to serious difficulties. This evidence was not reoffered. On this record we cannot assume that before he was approached the government had legally adequate evidence of defendant's predisposition. On the other hand, Peterson's knowledge of defendant's particular friends made it obvious, for what it is worth, that he was not simply making a blind spot-check of the neighborhood.

It being apparent that the government solicited the sales, the court charged the jury that the burden was upon the government to disprove entrapment beyond a reasonable doubt, and properly placed no initial burden upon the defendant. Cf. Gorin v. United States, 1 Cir., 1963, 313 F.2d 641, cert. den. 83 S.Ct. 1870. The defendant took no exceptions of any consequence to the charge. 3 His position is that he should have been acquitted.

Where there is government participation in criminal activity its extent obviously may vary from case to case from, for example, the mere purchase of obscene literature of regular sale 4 to a massive course of persuasion eventually corrupting a clearly reluctant victim. Before deciding whether undesirable, and hence 'unlawful' entrapment must be found as matter of law in the present case we must consider briefly 5 the philosophy behind it. So far as the individual defendant is concerned the defense 6 has no logical core. The fact

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that a defendant's actions were induced by a government representative does not mean that he did not commit all of the elements of the offense. If the inducement had come from parties having no connection with the government it would absolve him in no degree. Polski v. United States, 8 Cir., 1929, 33 F.2d 686, cert. den., 280 U.S. 591, 50 S.Ct. 39, 74 L.Ed. 640. Yet there is a natural feeling, expressed by different courts in different ways, that it is not the duty of the police to corrupt citizens. At the same time it is not denied that certain crimes, of which the narcotics traffic furnishes a prime example, are committed in secret under such circumstances that perpetrators might never be discovered if government representatives were not permitted to participate to some extent. Judges may disagree as to how much participation is, as matter of law, too much, depending primarily upon the emphasis they attach to preventing 'dirty business,' or 'unfairness' to the defendant, as against permitting vigorous law enforcement. Nonetheless we believe that there is not such a wide divergence of views as a cursory study of the various opinions resulting from the indictments of Sorrells and Sherman 7 might indicate. We suggest, what we take to be in accord with Accardi v. United States, 5 Cir., 1958, 257 F.2d 168, cert. den. 358 U.S. 883, 79 S.Ct. 124, 3 L.Ed.2d 112, that once government inducement has been shown there are two issues. The government should establish that it engaged in no conduct that was shocking or offensive per se, 8 and that the defendant...

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46 practice notes
  • 738 F.2d 943 (8th Cir. 1984), 83-2299, United States v. Leroux
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • July 11, 1984
    ...Garcia, 546 F.2d 613, 615 (5th Cir.) (same), cert. denied, 430 U.S. 958, 97 S.Ct. 1608, 51 L.Ed.2d 810 (1977); Whiting v. United States, 321 F.2d 72, 76 (1st Cir.) Page 948 (same), cert. denied, 375 U.S. 884, 84 S.Ct. 158, 11 L.Ed.2d 114 (1963); Beard v. United States, 59 F.2d 940, 941 (8th......
  • 359 So.2d 864 (Fla. 1978), 52705, Henry v. State
    • United States
    • Florida Supreme Court of Florida
    • June 1, 1978
    ...v. Wharton, 139 U.S.App.D.C. 293, 433 F.2d 451 (1970); United States v. Salter, 346 F.2d 509 (6th Cir. 1965); Whiting v. United States, 321 F.2d 72 (1st Cir. 1963), cert. denied, 375 U.S. 884, 84 S.Ct. 158, 11 L.Ed.2d 114 (1963); Apel v. United States, 247 F.2d 277 (8th Cir. 1957); Allen v.......
  • 536 F.2d 208 (7th Cir. 1976), 75-1857, United States v. Ressler
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • June 11, 1976
    ...was held to be permissible under the Fourth Amendment in the only federal case on point which we have found, Whiting v. United States, 321 F.2d 72 (1st Cir. 1963). We agree with the Whiting decision since a suspect cannot be considered to have unknowingly exposed information to an agent in ......
  • 885 F.2d 954 (1st Cir. 1989), 89-1120, United States v. Ladd
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • September 13, 1989
    ...v. Andrew, 666 F.2d 915, 922 (5th Cir.1982); Grant v. Dalsheim, 535 F.Supp. 1382, 1386 (S.D.N.Y.1982); see also Whiting v. United States, 321 F.2d 72, 75 (1st Cir.) (court not required to reread portions of charge not requested where nothing court said in answering jury question altered ori......
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46 cases
  • 738 F.2d 943 (8th Cir. 1984), 83-2299, United States v. Leroux
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • July 11, 1984
    ...Garcia, 546 F.2d 613, 615 (5th Cir.) (same), cert. denied, 430 U.S. 958, 97 S.Ct. 1608, 51 L.Ed.2d 810 (1977); Whiting v. United States, 321 F.2d 72, 76 (1st Cir.) Page 948 (same), cert. denied, 375 U.S. 884, 84 S.Ct. 158, 11 L.Ed.2d 114 (1963); Beard v. United States, 59 F.2d 940, 941 (8th......
  • 359 So.2d 864 (Fla. 1978), 52705, Henry v. State
    • United States
    • Florida Supreme Court of Florida
    • June 1, 1978
    ...v. Wharton, 139 U.S.App.D.C. 293, 433 F.2d 451 (1970); United States v. Salter, 346 F.2d 509 (6th Cir. 1965); Whiting v. United States, 321 F.2d 72 (1st Cir. 1963), cert. denied, 375 U.S. 884, 84 S.Ct. 158, 11 L.Ed.2d 114 (1963); Apel v. United States, 247 F.2d 277 (8th Cir. 1957); Allen v.......
  • 536 F.2d 208 (7th Cir. 1976), 75-1857, United States v. Ressler
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • June 11, 1976
    ...was held to be permissible under the Fourth Amendment in the only federal case on point which we have found, Whiting v. United States, 321 F.2d 72 (1st Cir. 1963). We agree with the Whiting decision since a suspect cannot be considered to have unknowingly exposed information to an agent in ......
  • 885 F.2d 954 (1st Cir. 1989), 89-1120, United States v. Ladd
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the First Circuit
    • September 13, 1989
    ...v. Andrew, 666 F.2d 915, 922 (5th Cir.1982); Grant v. Dalsheim, 535 F.Supp. 1382, 1386 (S.D.N.Y.1982); see also Whiting v. United States, 321 F.2d 72, 75 (1st Cir.) (court not required to reread portions of charge not requested where nothing court said in answering jury question altered ori......
  • Request a trial to view additional results