Hattem v. United States

• Decision Date: 21 November 1960
• Docket Number: No. 16467.,16467.
• Citation: 283 F.2d 339
• Parties: Louis P. HATTEM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

283 F.2d 339 (1960)

Louis P. HATTEM, Appellant, v. UNITED STATES of America, Appellee.

No. 16467.

United States Court of Appeals Ninth Circuit.

October 11, 1960.

Rehearing Denied November 21, 1960.

Russell E. Parson, Los Angeles, Cal., Irving D. Apple, Hollywood, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Robert J. Jensen, Leila F. Bulgrin, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BARNES, JERTBERG and KOELSCH, Circuit Judges.

KOELSCH, Circuit Judge.

Appellant was found guilty by a jury verdict of two counts of acquiring or otherwise obtaining marihuana without having paid a transfer tax in violation of 26 U.S.C.A. § 4744(a). The first count charged that he "knowingly and unlawfully acquired and obtained" six marihuana cigarettes on June 10, 1958; the second, in identical language, charged him with the acquisition of two such cigarettes on the same day. He was sentenced to five years imprisonment on each count, the sentences to run concurrently. We have jurisdiction under 28 U.S.C.A. § 1291.

The principal question presented is whether the evidence establishes the defense of entrapment as a matter of law.

The pertinent facts show that appellant was arrested in Los Angeles on June 10, 1958 in the apartment of one Kathleen Briggs, a seventeen-year old girl who was then acting as an agent for the Los Angeles Police. Miss Briggs, later Mrs. Wolfe following her marriage before the trial, had been in trouble in 1957 because of her association with young men who had used marihuana; she was never prosecuted in that connection but did testify against them in 1957 at a state trial involving marihuana and was thereafter released in her mother's custody. She first met appellant in November or December 1957 and saw him occasionally at various nightclubs throughout the spring of 1958.

In May 1958, after Kathleen returned from a trip to Las Vegas with her future husband, Lynn Wolfe, and another woman, Wolfe discovered a package of marihuana in Kathleen's purse. She agreed to phone Alfred C. Allen, a police officer assigned to the Juvenile Narcotics Unit, whom she had met during her previous troubles. She testified that she first told Allen "a big wild story" as to where she obtained the marihuana, but finally told him she was ready "to tell the truth" and gave him appellant's name as the person who provided her with the package; she was taken into custody and made a ward of the Juvenile Court.

Officer Allen then investigated the appellant and discovered he had a criminal record: he had been convicted in 1954 by a California State Court of unlawfully possessing one marihuana cigarette and again in 1955 by a federal court for illegally importing a quantity of marihuana into the United States. Allen obtained permission from Juvenile Court to have Miss Briggs released in his custody for the purpose of apprehending appellant in the sale of narcotics; to accomplish this a concealed microphone was placed in Kathleen's apartment at the Chancellor Hotel and through the co-operation of Wolfe, who owned the hotel, a tape recording machine was connected to the microphone by a wire and installed in the adjacent room. Kathleen was then instructed by the police to call appellant and arrange for a sale or delivery of marihuana to her.

The record does not show how Kathleen first contacted appellant, but he came to her apartment on May 29, 1958. The testimony is conflicting as to what was said at this meeting (it was not fully recorded): police officers testified that they overheard appellant say he knew persons who had several "kilos" of marihuana and that he himself had a "can" which was promised to someone else; appellant, however, testified that he informed Kathleen that he was not interested in her request, that he was not a seller of marihuana, and that she should try elsewhere; but he did admit informing her that if she had no success in obtaining the marihuana, he would look into it after he returned from a forthcoming trip to Lake Mead.

Kathleen attempted to reach appellant many times after this meeting and testified that she may have tried to call him by telephone as many as twenty-five or thirty times, but that she actually was able to reach him only about twice. One conversation did occur on June 3rd, and again the testimony is conflicting as to what appellant said. Officer Allen, who listened in on this phone call, testified that appellant stated he could not find his "connection" from whom he could obtain marihuana, but hoped to soon, and if he did, he would bring some over; appellant said that he informed Kathleen he wanted nothing to do with marihuana and that he again had advised her to obtain it elsewhere.

On June 9, 1958 appellant phoned Kathleen: she again importuned him to obtain some marihuana for her and invited him over to her apartment for breakfast the next morning; he again testified, however, that he became angry, disclaimed any interest in procuring marihuana for her, and told her to stop calling him. Nevertheless, he did obtain marihuana in a bar on Sunset Boulevard, Hollywood, later in the same evening and did visit Kathleen the next morning. Appellant admitted that he brought a quantity of marihuana with him and that he then rolled this into six cigarettes; he also admitted smoking one while there and handing two to Kathleen. She then handed appellant $5.00 which she said was payment for a previous delivery of marihuana, but he testified that he never sold her any and that the $5.00, which was later taken from his possession by the police, was payment for a prior loan; she also offered appellant $2.00 for the two cigarettes he had just given her, but he refused to accept any payment for them. Kathleen testified that appellant remarked that he had smoked twelve marihuana cigarettes the evening before, which he denied, and that he also stated he "couldn't live without it." Shortly afterwards the officers entered the room and arrested appellant.¹

The defense of entrapment has been recognized since the decision of the Supreme Court in Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L. Ed. 413. While there has been a continuing disagreement concerning what the law should be on the subject,² there is little doubt at the present time concerning what the law is. In Sherman v. United States, 1957, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848, the Court described the evil of entrapment, quoting from Sorrells, as follows: "* * 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." The Court then set down the guiding principles to be followed:

"* * * the fact that government agents `merely afford opportunities or facilities for the commission of the offense does not\' constitute entrapment. Entrapment occurs only when the criminal conduct was `the product of the creative activity\' of law-enforcement officials. * * * 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. * * * On the one hand, at trial the accused may examine the conduct of the government agent; and on the other hand, the accused will be subjected to an `appropriate and searching inquiry into his own conduct and predisposition\' as bearing on his claim of innocence." 356 U.S. at pages 372-373, 78 S.Ct. at page 821.

The function of the trial judge generally is to determine whether entrapment has or has not been established as a matter of law; but if the question depends upon credibility factors or inferences drawn from conflicting evidence, it presents a question of fact which must be submitted to the jury. Sherman v. United States, supra, 356 U.S. at page 377, 78 S.Ct. at page 823; see also, United States v. Wallace, 3 Cir., 1959, 269 F.2d 394; Bruno v. United States, 9 Cir., 1958, 259 F.2d 8; Annotation, 33 A.L.R.2d 883, 902. In the present case, the district judge did not find entrapment as a matter of law, but he did submit that issue to the jury under proper instructions.

We think his ruling was correct. The testimony and other evidence adduced at the trial tends to show on the one hand that appellant was not only a "user" and had been convicted twice before of possessing marihuana, but that he appeared to be still actively engaged in acquiring it and was in contact with his sources of...