Hansford v. United States

• Decision Date: 13 April 1962
• Docket Number: No. 16432.,16432.
• Citation: 112 US App. DC 359,303 F.2d 219
• Parties: David Louis HANSFORD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

112 US App. DC 359, 303 F.2d 219 (1962)

David Louis HANSFORD, Appellant, v. UNITED STATES of America, Appellee.

No. 16432.

United States Court of Appeals District of Columbia Circuit.

Argued February 27, 1962.

Decided by Judgment Entered April 13, 1962.

Opinion Rendered May 3, 1962.

Mr. George W. Shadoan, Washington, D. C., for appellant. Mr. Robert L. Callahan, Jr., Takoma, Md. (appointed by this court) was on the brief for appellant.

Mr. Nathan J. Paulson, Asst. U. S. Atty., for appellee. Messrs. David C. Acheson, U. S. Atty., Charles T. Duncan, Principal Asst. U. S. Atty., Arthur J. McLaughlin, Asst. U. S. Atty., and Miss Doris H. Spangenburg, Asst. U. S. Atty. at the time the brief was filed, were on the brief for appellee. Mr. Donald S. Smith, Asst. U. S. Atty., also entered an appearance for appellee.

Before WILBUR K. MILLER, Chief Judge, and EDGERTON, PRETTYMAN, BAZELON, FAHY, WASHINGTON, DANAHER, BASTIAN and BURGER, Circuit Judges, sitting en banc.

FAHY, Circuit Judge, with whom EDGERTON, BAZELON, WASHINGTON, DANAHER and BURGER, Circuit Judges, join.

Hansford, the appellant, was found to have sold four capsules containing heroin to a special employee of the Metropolitan Police Department in July 1960. He was found guilty of the sale, possession and importation of narcotic drugs in violation of federal statutes,¹ and was sentenced to prison for ten years. Officer Hutcherson of the Narcotics Squad of the Department testified that he furnished the money, supplied by the Department, to a special employee named Burnett to make the purchase. He further testified that he saw Burnett hand the defendant the money, and shortly thereafter he observed the latter hand Burnett a packet subsequently found to contain four capsules of heroin. Thus the possibility of entrapment arose.

Burnett denied purchasing narcotics from defendant. He said he knew defendant to be an addict but that he purchased pills from one "Al," using $6.00 given him by Officer Hutcherson and $3.00 given him by defendant, that he and defendant used five of the capsules and he gave the remaining four to Officer Hutcherson, to whom he told what had happened. Defendant took the stand and also denied making the sale to Burnett. He admitted that he was a drug addict and testified that at the time of his arrest he was a patient at the D. C. General Hospital as a result of a voluntary commitment designed to cure his addiction.

The court advised counsel that it would instruct the jury on entrapment. The United States then recalled Officer Hutcherson in rebuttal. Over defense objection he testified that in September 1959 he had observed defendant with a cellophane bag in which he had about fifty or sixty white capsules containing white powder. He continued: "In my the officer's automobile he sold to the other addicts in my car capsules from this quantity that he had." He said he had sought then without success to make a purchase from defendant. On cross examination the officer further testified that he had made a report of the incident. The court then recessed to permit the witness and another member of the Department who was present in court, Sergeant Krenitsky, to locate the report. The court reconvened in about 30 minutes, when Officer Hutcherson reported that both he and Sergeant Krenitsky had searched the records of the Narcotics Squad Office but were unable to find a report of the incident. He was then cross examined as set forth in the margin.²

We first consider appellant's challenge to the instruction given to the jury on the issue of entrapment. As a minor matter we note that the court stated that the two-fold defense, though permissible, was inconsistent. The defenses were alternative but not inconsistent. It was consistent with defendant's denial of the transaction to urge that if the jury believed it did occur the government's evidence as to how it occurred indicated entrapment.

We now come to a more serious matter. When the accused took the stand the Government on cross examination questioned him with respect to his criminal record, consisting of a conviction on three counts of petit larceny in 1951, violation of the Harrison Narcotic Act in 1952, and petit larceny in 1958 and 1960, the latter occurring in Maryland. With this in evidence the court instructed the jury that where the defense is entrapment,

"the law says that if an otherwise innocent person, not inclined to commit a criminal offense, is induced, is led into, is enticed by a police officer to commit a criminal offense, the prosecution can have no benefit from it and he would be not guilty. Understand that I say an `otherwise innocent person\' who would not have committed the crime except for some enticement, or inducement."

The court illustrated by reference to the opinion of the Supreme Court in Sorrells v. United States, 287 U.S. 435 53 S.Ct. 210, 77 L.Ed. 413, adding:

"you have got to take into consideration the testimony on the part of the Government concerning Hansford\'s background, * * * you have got to consider that background, the whole of it, in determining whether he was an innocent man who wouldn\'t have made that sale but for being seduced into doing it."

Defense counsel objected to the reference to Sorrells,³ saying,

"the jury may get the idea that Sorrell was entirely innocent and, therefore, the defense of entrapment is good against him but would not be good against our man because he has a criminal record. I am afraid that might be prejudicial against my client. * * * You spoke of an innocent man. Did you mean that it was an innocent man never having been convicted of any crime or innocent of this one particular offense?

"THE COURT: Well, I think I made that plain enough: `A man who would not have sold narcotics but for the enticement.\'

* * * * * *

"COUNSEL: Maybe I got the wrong impression, but I was listening to it and I got the impression that it related to a man who was otherwise innocent of anything, any crime.

"THE COURT: I don\'t agree."

The court did not explain to the jury, as here explained to counsel, that the court meant "A man who would not have sold narcotics but for the enticement." The jury could well believe that the defense of entrapment was available only to an innocent man, that is, a man who had no criminal record, and was enticed. Yet that is not the law. In Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, notwithstanding two previous narcotics convictions the Court held that Sherman had been entrapped with respect to the narcotics charge on which he was tried.

The reference of the court to an otherwise innocent man is understandable; for the opinions of the Supreme Court in both Sorrells and Sherman refer several times to the need that the accused be an "innocent" man. Thus, "decoys are not permissible to ensnare the innocent and law-abiding into the commission of crime." Sorrells v. United States, supra 287 U.S. at 445, 53 S.Ct. at 214. But a court opinion is not an instruction to a jury. In these opinions the Supreme Court evidently meant by "innocent," in connection with entrapment, absence of a predisposition or state of mind which readily responds to the opportunity furnished by the officer or his agent to commit the forbidden act for which the accused is charged. As explained in Sherman:

"At the trial the factual issue was whether the informer had convinced an otherwise unwilling person to commit a criminal act or whether petitioner was already predisposed to commit the act and exhibited only the natural hesitancy of one acquainted with the narcotics trade."

Sherman v. United States, supra 356 U.S. at 371, 78 S.Ct. at 820. Or, as further stated by the Court in Sherman when quoting from Sorrells:

"Entrapment occurs only when the criminal conduct was `the product of the creative activity\' of law-enforcement officials."

356 U.S. at 372, 78 S.Ct. at 821. These statements largely dispel the ambiguity that arises from an unexplained reference to an "innocent" person. If the term "innocent" is to be used at all — it is preferable to avoid its use altogether — it should be explained so that the jury will understand that a criminal record does not disqualify an accused from defending on the ground of entrapment. A person is not entrapped when an officer merely presents him with the opportunity to commit an offense in order to detect criminality rather than to instigate it. But readiness or predisposition is not established by evidence that the person is not "innocent" in that he has a criminal record. Innocent in the context of entrapment means that the defendant would not have perpetrated the crime for which he is presently charged but for the enticement of the police official. The defendant, in such circumstances, must be considered a previously innocent person. A criminal record is relevant in regard to a predisposition or propensity, but does not preclude the defense of entrapment.

The care required in instructing the jury is due to the nature of the defense of entrapment. It involves the conduct of law-enforcement officers in leading another to commit an act defined as a criminal offense. The opinion of Mr. Chief Justice Hughes in Sorrells, supra, refers to this as so "shocking" as to remove the resulting conduct of the accused, though within the literal definition of a criminal offense, from its intendment. The separate opinion of Mr. Justice Roberts, concurred in by Mr. Justice Brandeis and Mr. Justice Stone, would have based the defense on the duty of the courts to protect their processes from being used to convict one of conduct induced by those whose duty it is to uphold the law.⁴

When in Sherman the subject was again considered the Court, in an opinion by Mr. Chief Justice Warren, did not feel called upon in the circumstances to reconsider the principles underlying Mr. Chief Justice Hughes' opinion in Sorrells, which ruled that facts showing entrapment remove the conduct from the...