Brooke v. United States

• Decision Date: 19 April 1967
• Docket Number: No. 20241.,20241.
• Citation: 385 F.2d 279,128 US App. DC 19
• Parties: Albert B. BROOKE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

128 US App. DC 19, 385 F.2d 279 (1967)

Albert B. BROOKE, Appellant, v. UNITED STATES of America, Appellee.

No. 20241.

United States Court of Appeals District of Columbia Circuit.

Argued November 22, 1966.

Decided April 19, 1967.

Petition for Rehearing Denied May 23, 1967.

Mr. Mark E. Fields, Washington, D. C. (appointed by this court), for appellant.

Mr. Charles A. Mays, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., and Frank Q. Nebeker and Joel D. Blackwell, Asst. U. S. Attys., were on brief, for appellee.

Before BASTIAN, Senior Circuit Judge, and LEVENTHAL and ROBINSON, Circuit Judges.

Petition for Rehearing En Banc Denied May 23, 1967.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Convicted by a jury and sentenced on three re-tried counts¹ charging violations of federal narcotic drug laws,² appellant contends that the District Court erred in (a) refusing to instruct the jury on the defense of entrapment; (b) ruling that appellant's prior convictions could be used for purposes of his impeachment in the event that he testified; (c) permitting an undercover police officer, on the Government's rebuttal case, to contradict testimony given by a defense witness; and (d) denying appellant's motion for a judgment of acquittal sought on the ground that parts of the officer's testimony were uncorroborated. Our investigation of these claims, however, convinces us that the determinations to which they are addressed were correct. We accordingly affirm.

I

During 1964, Private William L. Hampton functioned as an undercover agent for the Narcotics Squad of the Metropolitan Police Department. An addict, George Pettas, cooperated in the venture by introducing Hampton to narcotics peddlers. Hampton and Pettas were the principal witnesses heard at appellant's trial.

Hampton testified that on February 27, 1964, appellant approached a parked automobile occupied by Hampton and Pettas and asked whether they "were looking," that is, if they were seeking narcotics. Receiving an affirmative response from Hampton, appellant inquired as to how many "things," idiomatic for "capsules," they desired, to which Hampton replied that he wanted ten. Appellant asked for the purchase price and was given $15 in special police department funds. He then left, returning a few minutes later to deliver to Hampton ten capsules filled with a white powder. Subsequent chemical analysis, according to other testimony for the Government, revealed the presence of heroin in five of the capsules but only talcum powder in the others.³

Pettas, as a defense witness, gave a different version. Needing drugs himself on that date but lacking funds with which to buy them, he prepared ten "blank" capsules by filling them with talcum powder. Prior to any transaction with Hampton, Pettas engaged appellant in a conversation behind the parked car from which a scheme to obtain money from Hampton evolved. Pettas requested appellant, as a favor, to give him $15 and recoup it by selling the ten capsules to Hampton for that amount, stating that the capsules contained only talcum powder. Appellant agreed, gave Pettas $15, and thereafter sold the capsules to Hampton.

Instructions on the law of entrapment had been given at appellant's original trial. At the outset of retrial, the judge inquired as to whether that defense would be asserted. Appellant's counsel expressed his "current thinking" that the contention, rather than entrapment, would be that the transaction was "just not a knowing possession or sale."⁴ After the close of the evidence, however, counsel requested an "entrapment" instruction,⁵ at one point stating:

"The jury could conceivably find that these were genuine narcotics, and that Pettas did do everything he said he would, but still knew, himself, that they were genuine, and was hoping to snag him to improve his own record."

The trial judge denied the request, deeming the evidence insufficient to raise an entrapment issue. His charge, not otherwise objected to, informed the jurors that appellant could not be found guilty of any offense for which he was being tried unless at least some of the capsules contained a narcotic drug and unless appellant actually knew this to be the fact.

Counsel's "entrapment" request was supported by what appears to have been a suggestion of the familiar frame-up which, although involving essentially similar policy considerations, would in the circumstances of this case be something quite different.⁶ Undoubtedly, in the context of a tense and fast moving criminal trial, this tended to produce confusion. From our reading of the transcript it seems possible that while counsel was endeavoring in the name of entrapment to request an instruction on frame-up, the trial judge, accepting the misnomer at face value, may have ruled on the request in the belief that it sought an instruction on entrapment. With conditions so odd, and in the interest of assuring full justice, we have examined the record in order to reassess the need for additional instructions pertaining to either entrapment or frame-up. We have concluded that, viewed in either aspect, the charge as given sufficed.

II

We may assume, without deciding, that for purposes of an entrapment instruction, the jury might properly have found that appellant was induced by Pettas' entreaty to engage in a sale to Hampton which he was not predisposed to make,⁷ and that under the circumstances Pettas was a governmental representative within the meaning of the entrapment doctrine.⁸ Nonetheless, an instruction on that subject was both unnecessary and improper unless there was an evidentiary basis for a finding that, entrapment aside, appellant was guilty of one or more of the offenses charged. The entrapment doctrine operates, not to negate a component of the offense, but to exonerate from criminal liability, because of overriding considerations, one who otherwise would be guilty of the offense.⁹ Entrapment, as a legal phenomenon, comes into play only where all essential elements of the offense exist.

Hampton's testimony alone did not occasion an instruction on entrapment.¹⁰ Pettas' testimony could have established not only the inducement and lack of predisposition which make for the entrapment defense, but could also have nullified two essential elements of each of the offenses on trial. Given full credit, Hampton's testimony warranted conviction while Pettas' required acquittal. The trial judge's instructions amply covered those two alternatives.

But the inquiry cannot halt here, for jurors ordinarily may, and frequently do, accept some but not all of the testimony related by particular witnesses. Where the situation is conducive, they may support a finding by parts of the testimony of two or more witnesses, and may resort to both prosecution and defense sources.¹¹ If, on such a pick-and-choose basis, the evidence permitted findings that appellant knew that one or more of the capsules contained a narcotic drug, but that he was nevertheless induced but was not predisposed to engage in the questioned transaction with Hampton, instructions on entrapment were in order.

As already indicated, the Government's case made available an inference of knowledge without indicating inducement, while appellant's case reflected inducement but negated knowledge. Thus the question is whether the jury could have chosen evidentiary items from each in such fashion as to yield both inducement and knowledge. We answer, on this record, in the negative. We are led to this conclusion by the basic consideration that, despite the jury's broad authority in treating the proofs, the selective process must not be so attenuated as to strain credulity to the breaking point. Among the inquiries we deem relevant when the legitimacy of the process is at stake are whether there must be extensive picking and discarding of evidence, whether the ultimate finding necessitates fragmentation of testimony in such degree as to distort it, and whether facts not supported by proof must be supplied.¹²

To conclude, on the evidence in this case, that appellant was entrapped, the jury would have had to find that Pettas approached appellant, conversed with him, and induced him to sell to Hampton capsules some of which actually and to appellant's knowledge contained a narcotic substance. To do this, it would have had to reject Pettas' testimony that he filled all of the capsules with talcum powder, and accept Hampton's that he had not tampered with them as well as other Government evidence that five possessed a heroin content. It would have had to accept Pettas' testimony that he had a conversation with appellant, and reject Hampton's that Pettas never left the car. It would then have had to discard Pettas' testimony that he told appellant that the capsules contained talcum powder, while continuing to believe that the conversation took place. And, while accepting Pettas' testimony that there was a conversation, it would have had to throw out much of what was said during that conversation. In sum, it would have had to cancel and substitute from the testimony of Hampton and Pettas on a truly amazing scale.¹³

To have treated Pettas' testimony as somehow yielding an entrapment situation would have twisted it completely out of focus. Pettas testified to a transaction with appellant indivisible in theme and thrust — that he involved appellant in a scheme to defraud Hampton through the use of capsules which actually and to appellant's knowledge contained no narcotic drug. To have extracted from this version any indication that appellant knew of heroin in some of the capsules would have distorted his testimony into something which it clearly was not.¹⁴ Additionally, in so doing, the jury would have had to supply information not forthcoming from the evidence. Pettas testified positively that he told appellant that the capsules contained only talcum powder. That the jury might discard this statement would not license a...