Johnson v. United States, 16890.

• Decision Date: 14 February 1963
• Docket Number: No. 16890.,16890.
• Citation: 115 US App. DC 63,317 F.2d 127
• Parties: Earl JOHNSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

115 US App. DC 63, 317 F.2d 127 (1963)

Earl JOHNSON, Appellant, v. UNITED STATES of America, Appellee.

No. 16890.

United States Court of Appeals District of Columbia Circuit.

Argued October 16, 1962.

Decided February 14, 1963.

Mr. Mark P. Schlefer, Washington, D. C. (appointed by this court), for appellant.

Mr. William H. Willcox, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Victor W. Caputy, Asst. U. S. Atty., and Nathan J. Paulson, Asst. U. S. Atty., at the time the brief was filed, were on the brief, for appellee. Mr. Frank Q. Nebeker, Asst. U. S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, and FAHY and BASTIAN, Circuit Judges.

FAHY, Circuit Judge.

The appeal is from a judgment of conviction of selling, possessing, and facilitating the concealment and sale of narcotics, in violation of 26 U.S.C. § 4705 (a) and § 4704(a) and 21 U.S.C. § 174. The testimony showed that an officer of the Narcotics Squad of the Metropolitan Police Department early one morning before daylight supplied six dollars from official funds to one Turner to purchase narcotics. The officer and Turner drove in the officer's car to a place where Turner left the car and shortly thereafter returned with appellant and two other persons, all of whom entered the car. Appellant told the officer to drive to a certain corner, which was done. Appellant left the car and presently returned and sat in the rear seat, with the officer and Turner in the front seat. Appellant told the officer to drive to another location. He then told Turner in the hearing of the officer that he was keeping one of the capsules for having made the purchase, and handed Turner a quantity of capsules, which Turner gave to the officer. They contained an opium alkaloid. Thus the conduct charged as criminal could be found to be attributable to the action of the officer (1) in supplying Government funds for the purchase of the narcotics, (2) through the direct channel of an intermediary to the accused, (3) allowing the accused after the purchase and in the presence of the officer to retain some of the narcotics, (4) the officer at all times providing transportation for the execution of the plan.

Counsel contends that in these circumstances appellant was entitled to a directed verdict of not guilty on the ground of entrapment. We disagree. The evidence did not establish entrapment as a matter of law. The jury could infer that appellant, rather than being induced, was predisposed to commit the crime and was merely afforded by the Government an opportunity to do so, in which event the defense of entrapment would fail. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. But appellant was entitled to have the question submitted to the jury for its decision under an appropriate instruction. Such an instruction was requested and denied. For this reason we shall grant a new trial.

Inducement of course may take different forms. Here the evidence does not show, as sometimes is the case, that personal importuning or coercive tactics were used by the officer to persuade appellant. We do have, however, the furnishing by the officer of Government money, itself a persuasive factor, to an intermediary acting for the officer in carrying out the transaction, with a "reward" to the accused of a part of its fruit. This is enough to raise a factual issue of official inducement for the jury to decide one way or the other. While the "reward" was taken after the purchase, the jury could infer from the previous circumstances that hope of reward played a part in the transaction.

It is of course inducement by an official which invokes the doctrine. The entrapment defense does not extend to inducement by a private citizen; yet it has found general application to cases where the officer acts through a private citizen, as in the case at bar.¹

An underlying policy of the doctrine, as revealed in the following statement of the Supreme Court, is to preserve respect for the law as enforced by the Government:

"The defense is available, not in the view that the accused though guilty may go free, but that the Government cannot be permitted to contend that he is guilty of a crime where the government officials are the instigators of his conduct."

Sorrells v. United States, supra, 287 U.S. at 452, 53 S.Ct. at 216 and see Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). The latter, like the present case, involved a federal narcotic offense, as did Hansford v. United States, 112 U.S.App.D.C. 359, 303 F.2d 219.

Although it participates in conduct so as to give rise to a claim of entrapment, the Government may successfully meet the claim by showing that it did not in fact induce the conduct because the accused was merely awaiting an opportunity to commit the offense, being predisposed to do so.² Sorrells v. United States; Sherman v. United States; Hansford v. United States, all supra. Thus, in the present case, the Government would have the right, on the evidence to which we have referred as raising an issue of entrapment, to argue to the jury that it did not show entrapment because, as could be inferred, it showed that appellant was predisposed and ready to commit the offense. In addition, in deciding to give the entrapment instruction, the court should afford the Government on request an opportunity to introduce other evidence it might have of predisposition or readiness on the part of the accused. In Hansford the trial court properly permitted the prosecutor to reopen its case for this purpose, although we held that the particular evidence then advanced was inadmissible.

Moreover, in this case still another avenue is open to the Government by which it may seek to meet the challenge of the entrapment defense. Defense counsel objected to the Government's effort to prove what Officer Heath said to Turner. This testimony when offered was excluded, perhaps correctly. But when the defense thereafter requested the entrapment instruction, which as we have said was warranted by the evidence which had been admitted, the testimony of Officer Heath as to what he said to Turner, to the extent it had a bearing upon the issue of entrapment, became admissible on that issue. Should the case be retried, and entrapment again be raised as a defense, the court may hear this testimony outside the presence of the jury and, if and to the extent it bears on entrapment, may then permit it to be given before the jury.

Two cases are referred to as contrary to our conclusion — United States v. Perkins, 190 F.2d 49 (7th Cir.), and Crisp v. United States, 262 F.2d 68 (4th Cir). In Perkins the trial was by a judge without a jury. On appeal it was held that the intermediary "merely afforded Riley a defendant with Perkins an opportunity to commit a crime which he was ready and willing to commit," and the court concluded that the trial judge must have considered the possibility of entrapment, which was vigorously pressed at trial. This is exactly the issue in our case which should have been resolved by the trier of the facts. As to the defendant Perkins the Court of Appeals rejected his claim that because the intermediary was entrapped therefore the entire transaction was vitiated ab initio, and the defense of entrapment was likewise available to him. This did not necessarily follow. Each claim of entrapment must stand on its own facts, including the evidence tending to show predisposition or its absence. In Crisp v. United States, supra, the court, in holding that an instruction on entrapment was not justified, did so upon the basis of evidence which seemed to cover all that occurred, from which the court was able to conclude that the criminal design did not originate with the officials but rather that they furnished an opportunity for Crisp to commit the offense through the agent. We think the question as to the origin of the criminal design in our case was a factual one for the jury to decide. In so far as Crisp and Hester v. United States, 303 F.2d 47 (10th Cir. 1962) may be said to indicate a different approach from ours we respectfully disagree. We have also examined United States v. Gironda, 267 F.2d 312 (2d Cir. 1959), and United States v. Di Donna, 276 F.2d 956 (2d Cir. 1960), in neither of which were the facts similar to those in our case.

It is reasonable to characterize the evidence of entrapment in this case as not strong; yet we think it was not so weak as to be non-existent in the eyes of the law applicable to the subject. That is the basis for our decision. The Government is not precluded by the law of entrapment from using unusual means of ferreting out violations of the narcotic laws, difficult to discover; but in using these means it opens for jury determination a factual issue whether the accused was induced by the Government to engage in the condemned conduct or, on the contrary, availed himself of the opportunity to do what he was ready and predisposed to do. We think this issue may safely be left to the jury. In so holding in this case we do not extend Hansford. That case reviews the entrapment problem at some length,³ but the decision turned upon the admissibility of certain evidence and the content of instructions given. In the present case our decision turns entirely upon refusal to give any instruction at all on entrapment.

Finally, we do not think the unavailability of Turner as a witness can affect the appellant adversely. Turner was the Government's intermediary in this case in so far as appellant is concerned, though Turner himself was indicted. Even though we should assume his evidence might aid the Government in its case against appellant, his absence cannot supply that evidence.

The refusal of the trial court to give the requested instruction constitutes error for which the case must be remanded for a new trial.

Appellant raises another contention which we need not consider since it was not raised...