Cross v. United States

• Decision Date: 23 June 1965
• Docket Number: No. 17830.,17830.
• Parties: Rebecca CROSS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

347 F.2d 327 (1965)

Rebecca CROSS, Appellant, v. UNITED STATES of America, Appellee.

No. 17830.

United States Court of Appeals Eighth Circuit.

June 23, 1965.

DeWitte T. Lawson, Jr., of McDuffie, Cahill & Lawson, St. Louis, Mo., made argument for appellant and filed brief.

Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., and John A. Newton, Asst. U. S. Atty., St. Louis, Mo., submitted brief without oral argument for appellee.

Before BLACKMUN and RIDGE, Circuit Judges, and REGISTER, District Judge.

RIDGE, Circuit Judge.

After trial on a two-count indictment charging unlawful sales of narcotics, on two different days, in violation of 26 U.S. C.A. § 4705(a), appellant was found guilty by jury verdict and sentenced to concurrent terms of twenty years' imprisonment.

In the court below, appellant, standing on a motion for judgment of acquittal made at the close of the Government's case, offered no evidence in defense of the above charges. Nevertheless, we have reviewed the uncontradicted evidence adduced at appellant's trial in the light of Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L. Ed.2d 848 (1958), and are convinced that proof of facts as to defendant's guilt of the charges made against her was such as to warrant the submission of the issue of her guilt to the jury for determination.

The uncontradicted evidence adduced at appellant's trial established that two illegal sales of narcotics were made on the days specified in the indictment to two Government informers who were brothers, one of whom admittedly was a narcotics addict and had "done business" with appellant previously. Both such informers voluntarily agreed to take a Government narcotics agent to appellant's apartment to see if they could "make a buy." This came about as the result of a discussion between the agent and the informers concerning the narcotics trade in St. Louis, Missouri, generally, during which discussion appellant's name came up as one of the principal traders. Evidence was adduced at appellant's trial to the effect that she had a generally-known reputation as being an active dealer in narcotics. After the informers were searched they were provided with $30.00 in Government funds with which to purchase narcotics if their quest proved successful. At appellant's apartment an agent of the Government was introduced as a cousin of the informers. When she objected to his presence as a stranger and after assurances were given that he was all right, appellant, in the presence of the agent, agreed to sell two packets of heroin to one of the informers, but stated that they would have to go to her mother's house, as she did not keep narcotics in her own apartment. On arrival in the vicinity of her mother's house, the Government agent was told to wait in the car around the corner. The informer accompanied appellant to the house and stood on the porch while she went inside. Thereafter, as they walked back to the car, appellant handed that informer two small packets, which he later surrendered to the agent. The next day the same thing occurred * * * the two informers and the Government agent proceeded to appellant's apartment where they arranged to purchase two more packets of heroin. After paying $25.00 of Government funds to appellant they all proceeded to the same address as on the previous day at which time appellant delivered two packets to the informer in the presence of the Government agent. On both occasions the group was under continual surveillance by another agent who verified the general movements and actions of the group. The parties stipulated that the evidence of the Government chemist, if called, would be to the effect that the four packets purchased from appellant and introduced in evidence contained heroin, a derivative of opium.

Appellant's sole assignment of error in this appeal is that an instruction, as given by her trial court, covering the defense of "entrapment," is erroneous. Entrapment was the only defense made to the charges for which appellant was prosecuted. Therefore, Instruction No. VII, as given by the trial court, is set out in its entirety in the margin.¹ Appellant's assertion of error in respect thereto is summarized in her brief as follows: "This instruction is erroneous because there is no such thing as a `lawful entrapment.' Entrapment is ipso facto and ipso jure a defense to a criminal charge." From that premise appellant argues that because of the definition of "lawful" entrapment as made in Instruction No. VII, ante, error exists in the record of this case because of conflict thereof with Instruction No. XIV,² the verdict-directing instruction, which he concedes correctly stated and required a finding of the essential facts to warrant appellant's conviction of the charges made against her. In other words, appellant, in effect admits that a finding of the facts as stated in Instruction XIV, beyond a reasonable doubt, is sufficient to sustain her convictions, if the jury was properly charged as to "entrapment" as submitted by Instruction VII, ante.

At the outset of our consideration of this appeal we are met with the problem that the instructions complained of were only given to the jury by the court below after appellant's initial objection thereto was withdrawn, thus bringing into operation Rule 30, F.R.Cr. P., which provides, in part: "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto * * * stating distinctly the matter to which he objects and the grounds of his objection." There is no question, however, that this rule does not preclude our consideration of plain error in the giving of instructions under Rule 52(b), F.R.Cr.P., in order to prevent a miscarriage of justice. Lash v. United States, 221 F.2d 237 (1 Cir., 1955); Herzog v. United States, 235 F. 2d 664 (9 Cir., 1956). If appellant is correct in her contention that an incorrect statement of her sole defense was given to the jury by the instructions ante, it is apparent that such would be plain error requiring a reversal in order to assure appellant a fair trial and chance to present her defense. Carson v. United States, 310 F.2d 558 (9 Cir., 1962). Thus we here consider the entrapment instruction appearing in the record of this appeal in light of controlling authority, notwithstanding appellant's failure to make objection thereto, in order to determine whether or not Instruction VII, ante, did in fact misstate the law applicable to appellant's only defense as made in this case.

It is well-settled law that the defense of entrapment in a criminal prosecution is allowed as a matter of public policy, despite the recognized necessity of "artifice and stratagem" sometimes used by law enforcement authorities in unmasking crimes. Thus, in the law of entrapment a balancing of facts occurs between the legitimate aims of law enforcement and unlawful conduct of law enforcement officers which amounts to an unlawful seduction of the innocent to commit crimes. The dichotomy of entrapment is well stated in Sorrells v. United States, 287 U.S. 435, at pp. 441, 442, 53 S.Ct. 210, at pp. 212, 213, 77 L. Ed. 413 (1932), wherein the Court states:

"It is well settled that the fact that officers or employees of the government merely afford opportunities or facilities for the commission of (an) offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises. (Citing cases.) The appropriate object of this permitted activity, frequently essential to the enforcement of the law, is to reveal the criminal design; to expose the illicit traffic, the prohibited publication, * * * or other offenses, and thus to disclose the would-be violators of the law. A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." (Par. added.)

There, the Court firmly recognized that the defense of unlawful entrapment always defeats the prosecution in a criminal case. This position was reiterated by the Supreme Court in Sherman v. United States, ante. Basing its decision entirely on the principles enunciated in Sorrells, the Court in Sherman noted: "To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." 356 U.S. 369, 372, 78 S.Ct. 819, 821. (Emp. added.) In Sorrells, the Court referred to the decision of this Court in Butts v. United States, 273 F. 35, 18 A.L.R. 143 (8 Cir., 1921), as the leading case at that time on the question of entrapment, where Judge Walter H. Sanborn of this Court noted:

"* * * in cases where the criminal intent originates in the mind of the defendant, the fact that the officers of the government used decoys * * * to furnish opportunity for or to aid the accused in the commission of a crime * * * constitutes no defense to such a prosecution * * * (but on the other hand) when the accused has never * * * conceived any intention of committing the offense prosecuted * * * the fact

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