U.S. v. Demma

• Decision Date: 10 September 1975
• Docket Number: Nos. 73-2312,73-2354,s. 73-2312
• Citation: 523 F.2d 981
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony J. DEMMA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Henry BRULAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 981

523 F.2d 981

UNITED STATES of America, Plaintiff-Appellee, v. Anthony J. DEMMA, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Henry BRULAY, Defendant-Appellant.

Nos. 73-2312, 73-2354.

United States Court of Appeals,

Ninth Circuit.

Sept. 10, 1975.

Anthony Demma (argued) of the Law Offices of Arthur G. Lawrence, Beverly Hills, Cal., pro se and for defendant-appellant.

John J. Resich, Jr., Asst. U. S. Atty., Los Angeles, Cal. (argued), for plaintiff-appellee.

OPINION

Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.

HUFSTEDLER, Circuit Judge:

The law of entrapment in this circuit is confused and conflicting. Our cases can be reconciled neither with each other nor with Sorrells v. United States (1932) 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States (1958) 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; and United States v. Russell (1973) 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366.

We now set the circuit's entrapment law in order by holding that a defendant may assert entrapment without being required to concede that he committed the crime charged or any of its elements. We overrule Eastman v. United States (9th Cir. 1954) 212 F.2d 320, the source of the former rule, and disapprove all authority in our circuit that relies on Eastman and its progeny.

Codefendants Demma and Brulay appeal from their convictions for conspiring to import and to distribute heroin. Brulay also appeals from his conviction for using a telephone to facilitate the conspiracy. The key issue is whether the district court erred in refusing to instruct on entrapment on the ground that the defense is available only to a defendant who concedes both the acts and the state of mind necessary to constitute the crime charged.

The Government's case-in-chief contained ample evidence that Demma and Brulay agreed to import from Mexico and to distribute to a federal undercover agent large quantities of heroin. Neither defendant denied these acts. Each defendant contended that he was not guilty, however, because he did not entertain the necessary intent to commit the crime. Demma testified that he acted in the belief that he was cooperating with the Government. He said that he thought he was helping his old friend, a government informant working with the undercover agent to obtain information useful to the Government. The evidence was sharply conflicting on the question whether Demma knew that his friend was a government informant when he agreed with him and Brulay to import and distribute heroin.

Brulay testified that he thought he was working with the Government by setting up a drug seizure in cooperation with the informant and the undercover agent. His parents had been arrested on federal drug charges, and he claimed that he was induced to enter the negotiations by being led to believe that his cooperation would help his parents obtain leniency. Brulay stopped trying to negotiate a seizure when his father told him to quit because of the great danger involved.

Neither Demma nor Brulay ever imported or distributed any heroin. Both were entitled to entrapment instructions, unless their denial that they entertained the necessary intent to commit the crime foreclosed the defense.

I

The rule that a defendant wishing to claim entrapment must concede the crime charged was first announced in this circuit in Eastman v. United States, supra. The theory behind the rule is that it is factually inconsistent for a defendant to deny the crime charged, and, at the same time, to claim entrapment.

"Appellants, to say the least, take a very inconsistent position in this respect. Appellants have maintained throughout that they did not commit a crime. It logically follows that absent the commission of a crime there can be no entrapment. Bakotich v. United States, 9 Cir., 1925, 4 F.2d 386. The trial court understood this situation and very properly refused to inject into the case a question which could have no other result than to confuse." (212 F.2d at 322.)

The Eastman rule must be rejected for several reasons. First, in some of its applications, including the one by the district court in the case at bar, the rule conflicts with prevailing Supreme Court authority. Second, in other of its applications the rule has become detached from its theoretical moorings and cannot be justified by the inconsistency theory. Third, the inconsistency theory itself is seriously infirm.

In Sorrells v. United States, supra, the defendant had been convicted for possessing and selling whiskey in violation of the National Prohibition Act. Scienter was not an element of the offense. The defendant conceded that he possessed and sold the whiskey, but he claimed that he would not have done so if his reluctance had not been overcome by the government agent who induced him to make the sale. The majority of the court, speaking through Chief Justice Hughes, held that want of predisposition, coupled with governmental inducement equalled entrapment, a defense that was properly raised by a not guilty plea. The court's reasoning was that Congress could not have intended that the National Prohibition Act should apply to Entrapped acts of possession and sale.

"we are unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them." (287 U.S. at 448, 53 S.Ct. at 215.)

The theory of the Sorrells approach to entrapment is that the acts necessary to constitute any federal crime must be Non-entrapped acts; non-entrapment is an essential element of every federal crime which is put in issue whenever evidence is introduced suggesting that an unpredisposed defendant was induced by the Government to commit the acts charged. In Sorrells, Chief Justice Hughes expressly rejected the Government's contention that a claim of entrapment necessarily involved an admission of guilt and that it was in the nature of a plea in bar.

"This, as we have seen, is a misconception. The defense is available, not in the view that the accused though guilty may go free, but that the government cannot be permitted to contend that he is guilty of a crime where the government officials are the instigators of his conduct." (287 U.S. at 452, 53 S.Ct. at 216.) ¹

As the district judge in the case at bar realized, the Eastman rule, by its terms, requires that a defendant wishing to claim entrapment concede the state of mind necessary to constitute the crime charged as well as the constituent acts. However, the requirement that the defendant concede a state of mind is in direct conflict with the Sorrells conception of entrapment. Under Sorrells, whenever the element of non-entrapment is put in issue the Government must prove beyond a reasonable doubt that the acts charged were non-entrapped acts. The Government bears this burden whether or not the crime charged involves a subjective, mental element and whether or not the defendant concedes any mental element involved. The Eastman rule relieves the Government of this burden whenever the crime charged involves a mental element which the defendant refuses to concede. Relieving the Government of the burden of proving that the necessary acts were non-entrapped conflicts fundamentally with the Sorrells conception of entrapment.

Sorrells recognized that the special and perverse evil of entrapment is that the Government induces an otherwise innocent person to commit certain acts and then attempts to punish him for those very acts. If the Government, in addition to inducing acts, induces scienter, then the evil has been multiplied. ² But whether or not the Government succeeds in inducing or even tries to induce scienter, the primary, basic evil is that the Government has instigated the very activity which causes an otherwise innocent person to suffer a criminal sanction. ³

In addition to conflicting with prevailing Supreme Court authority, the Eastman rule, in certain situations, cannot be justified even by the inconsistency theory that is the rule's Raison d' etre. The inconsistency theory speaks to those situations where the defendant himself denies the crime charged either at trial or at some pretrial stage of the criminal process. But if a defendant declines to testify at trial and otherwise refuses to comment on the crime charged, then he has not denied the crime. Entrapment may nonetheless become an issue at his trial if (1) the Government's case-in-chief suggests that the defendant who was not predisposed was induced to commit the crime charged, or (2) a defense or a government witness gives evidence suggesting entrapment. ⁴ In either event, the Eastman rule is inapplicable because there is simply no inconsistency. The defendant has not denied the crime charged. At the close of a case in such a posture, defense counsel may and, indeed, he should argue to the jury that (1) the Government has not proved beyond a reasonable doubt that the defendant committed the crime charged, and (2) if the Government has so proved, then the Government has not proved beyond a reasonable doubt that the acts charged were non-entrapped. These arguments entail no factual inconsistency; they are merely garden-variety alternative contentions. ⁵

The Eastman rule cannot be applied to preclude an entrapment defense in the type of situation just described because (1) there is no factual inconsistency and (2) application of the Eastman rule would foreclose the possibility of finding entrapment as a matter of law where a defendant has neither denied nor conceded the elements constituting the crime charged; a finding of entrapment as a matter of law cannot be thus foreclosed. Where the Government's own evidence establishes that the defendant was...