507 F.2d 832 (8th Cir. 1974), 74-1416, United States v. Hampton

Docket Nº:74-1416.
Citation:507 F.2d 832
Party Name:UNITED STATES of America, Appellee, v. Charles HAMPTON, also known as Michael Byers, Appellant.
Case Date:December 11, 1974
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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507 F.2d 832 (8th Cir. 1974)

UNITED STATES of America, Appellee,

v.

Charles HAMPTON, also known as Michael Byers, Appellant.

No. 74-1416.

United States Court of Appeals, Eighth Circuit

December 11, 1974

Submitted Oct. 15, 1974.

Certiorari Granted March 31, 1975,

See 95 S.Ct. 1445.

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David A. Lang, St. Louis, Mo., for appellant.

Frederick J. Dana, Sp. Atty. in Charge, U.S. Dept. of Justice, St. Louis, Mo., for appellee.

Before HEANEY, BRIGHT and ROSS, Circuit Judges.

BRIGHT, Circuit Judge.

Charles Hampton stands convicted after a jury trial on two counts of distribution of heroin in violation of 21 U.S.C. 841(a)(1). The district court sentenced Hampton to five years' imprisonment and a three-year parole term on each count, to be served concurrently, but suspended the prison sentence and placed him on probation for five years. Hampton brings this appeal. We affirm the conviction.

Hampton raises two errors on appeal: (1) The trial court erred in refusing to give defendant's special instruction on entrapment, i.e., if the Government in fact provided Hampton with the heroin in question by its informer, the policy of the law forbids conviction, 1 and

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(2) the trial court erred in permitting a special agent of the drug enforcement administration to state that the substance which had been obtained from defendant 'contained heroin.'

I.

We turn first to the entrapment defense as it is presented to us on this appeal. Hampton and the Government's informer, one Jules Hutton, became pool-playing friends in St. Louis. According to Hampton, he (Hampton) proposed a plan for selling a 'pollutant'-- a non-narcotic compound closely resembling heroin in appearance-- to gullible acquaintances of Hutton. Hampton testified that the plan was carried out. Informer-Hutton supplied Hampton with packets containing alleged pollutants rather than narcotics and Hampton effected two sales to friends of Hutton. These friends turned out to be federal narcotics agents. The alleged pollutant turned out to be genuine heroin.

Hutton, as a Government witness, testified that Hampton had initiated the idea of selling heroin. He specifically denied giving Hampton the substances that Hampton sold to Government agents.

On this appeal, appellant makes the following statement of his entitlement to the special entrapment instruction:

(That request) is based on what has been termed the 'Government Conduct Theory' of entrapment which has its origins in the separate opinion of Mr. Justice Roberts for himself and two other Justices in Sorrells v. United States, 287 U.S. 435 (53 S.Ct. 210, 77 L.Ed. 413) (1932) and the concurring opinion of Mr. Justice Frankfurter, for himself and three other Justices, in Sherman v. United States, 356 U.S. 369 (78 S.Ct. 819, 2 L.Ed.2d 848) (1958).

Appellant recognizes that the Supreme Court has recently rejected a 'Government conduct' theory of entrapment in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), but he neverthless argues that such a theory may represent a proper basis for an entrapment defense where, as here, the defendant's version of the evidence discloses that the Government supplied the contraband without which there would be no crime.

In United States v. Russell, supra, an undercover narcotics agent supplied essential ingredients needed in the manufacture of an illegal drug, methamphetamine ('speed'). Russell and his codefendants were charged with unlawful manufacture, processing, and sale of that drug. Russell offered a defense of entrapment as a matter of law. He was convicted upon a jury trial. On appeal, the Ninth Circuit reversed the conviction for 'an intolerable degree of governmental participation in the criminal enterprise.' United States v. Russell, 459 F.2d 671, 673 (9th Cir. 1972). The Supreme Court on writ of certiorari reversed and, in doing so, reaffirmed that the entrapment defense focuses essentially 'on the intent of predisposition of the defendant to commit the crime.' United States v. Russell, 411 U.S. at 429, 93 S.Ct. at 1641.

The respondent-Russell contended that the Ninth Circuit had properly expanded the...

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