62 F.2d 1007 (2nd Cir. 1933), 260, United States v. Becker

Docket Nº:260.
Citation:62 F.2d 1007
Case Date:February 06, 1933
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1007

62 F.2d 1007 (2nd Cir. 1933)




No. 260.

United States Court of Appeals, Second Circuit.

February 6, 1933

Appeal from the District Court of the United States for the Southern District of Ney York.

Page 1008

David P. Siegel, of New York City (Milton B. Seasonwein, of New York City, on the brief), for appellant.

George Z. Medalie, U. S. Atty., of New York City (James A. Austin, of New York City, of counsel), for appellee.

Before L. HAND. SWAN, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

Becker and two others were indicted for sending obscene matter in interstate commerce, and receiving it upon its return; a conspiracy count was added. An outline of the evidence is as follows: Becker went separately to two salesmen of toys and 'novelties,' Green and Davis, and asked them to sell obscene stories and pictures, which he should furnish them. They did so, were detected and indicted, and pleaded guilty; sentence upon them was deferred in the hope that Becker and his accomplices, if any, might be decoyed into an interstate shipment of the same things. Post-office inspectors drew up a letter for Davis to give to Becker,; in form, an order for a package of obscene matter, to be sent to Kansas City. This letter purported to come from one, Ficken, in fact a post-office inspector, who was the supposititious customer. Davis spoke to Becker on the telephone; he came to Davis's office, where Davis gave him the order, telling him that it was from an old customer. Another defendant, Soloway, whose existence is somewhat dubious, sent such a package by express to Ficken at Kansas City; it arrived, was not claimed, and was returned to New York. A woman, the third defendant, got it from the express company, and was arrested with it in her possession. She said that she was working for Soloway, who could not be apprehended; in her pocketbook was a small photograph of Becker. Becker took the stand and denied all complicity with the transaction, or that he had ever asked Green and Davis to sell obscene matter for him. The jury found him and the woman guilty of sending the package in interstate commerce, of receiving it, and of a conspiracy.

The most important question which the raises is as to Becker's 'entrapment.' The situation is precisely like that in Grimm v. U. S., 156 U.S. 604, 15 S.Ct. 470, 39 L.Ed. 550, on which we should have been content without more to rely, were it not for the recent decision in Sorrell v. U. S., 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. The doctrine of the minority would be a defence here, and require the quashal of this indictment, for concededly the inspectors had directly instigated the commission of the crime laid. We understand it to be the minority view that when this is true it makes no difference that the accused is in course of committing crimes of the same kind, has already formed the design to engage in them, or is suspected with good reason of either. But the decision of the court was otherwise. The majority thought that although the officials may design and provoke the particular crime laid, this is not inevitably a defence. Their decision was that on the evidence before them the jury might have found that the accused was not habitually engaged in such crimes, and had shown no previous dispositon to commit them. The precise limits were however left open as to what would excuse such instigation. The only excuses that courts have suggested so far as we can find, are these: an existing course of similar criminal conduct; the accused's already formed design to commit the crime or similar crimes; his willingness to do so, as evinced by ready complaisance. The decisions are plentiful, but the judges generally content themselves with deciding the case upon the evidence before them; we have been unable to extract from them any definite doctrine, and it seems unprofitable once more merely to catalogue the citations. However, it has been uniformly held that when the accused is continuously engaged in the proscribed conduct, it is permissible to provoke him to a particular violation which will be no more than an instance in a uniform series. Lucadamo v. U. S., 280 F. 653 (C. C. A. 2); Nutter v. U. S., 289 F. 484 (C. C. A. 4); Wimmons v. U. S., 300 F. 321 (C. C. A. 6); Weiderman v. U. S., 10 F.(2d) 745 (C. C. A. 8). This, as already appears, was certainly implied in Sorrells v. U. S.; it gives the least scope to the doctrine. If it should eventually become settled in that form, an accused who raised the issue, would indeed open himself to an inquiry into his past conduct, but that might be more tolerable than to try out the basis of the officials' suspicions, or the accused's 'predisposition' to the crime laid. At any rate, it is as far as we need go here, except for a refinement which we shall notice later.

If Green and Davis were to...

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