Kibby v. United States

• Decision Date: 20 February 1967
• Docket Number: No. 18445-18447.,18445-18447.
• Parties: Paul Washington KIBBY, Appellant, v. UNITED STATES of America, Appellee. Charles R. STEWART, Appellant, v. UNITED STATES of America, Appellee. Carl McFADDEN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

372 F.2d 598 (1967)

Paul Washington KIBBY, Appellant, v. UNITED STATES of America, Appellee.

Charles R. STEWART, Appellant, v. UNITED STATES of America, Appellee.

Carl McFADDEN, Appellant, v. UNITED STATES of America, Appellee.

Nos. 18445-18447.

United States Court of Appeals Eighth Circuit.

February 20, 1967.

Harry Roth, Clayton, Mo., for appellants.

William C. Martin, Asst. U. S. Atty., St. Louis, Mo., for appellee, with Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., on the brief.

Before VAN OOSTERHOUT, GIBSON and HEANEY, Circuit Judges.

FLOYD R. GIBSON, Circuit Judge.

Defendant-appellants Paul Washington Kibby, Charles R. Stewart and Carl McFadden, (hereafter referred to as defendants) were charged and convicted in the United States District Court for the Eastern District of Missouri, of illegal purchase¹ and sale of narcotics in violation of 26 U.S.C. §§ 4704(a) and 4705 (a).² They duly appealed.

Defendants pleaded not guilty to their indictments and were tried without a jury before the Honorable Roy W. Harper. Kibby and Stewart were tried together and McFadden separately. The cases were consolidated for purposes of appeal and the evidence presented against each of the three defendants is essentially the same. It indicated that Dudley G. Brown, a Government informer and long time friend of the three defendants, telephoned each of the defendants, asking to purchase narcotics from them. Brown testified that McFadden came to his home on November 15, 1965 and January 27, 1966, and there sold him heroin. He testified that defendant Kibby sold him heroin on September 28, 1965 and December 1, 1965, and that defendant Stewart sold him heroin on March 22, 1966. The transactions were observed by Federal Bureau of Narcotics agent Richard M. Patch, who verified Brown's testimony. Each of the defendants testified, admitted being at Brown's residence on most of the dates in question, but denied the sale of any narcotics. (Stewart didn't admit the March 22, 1966 date Tr. 124.)

Informer Brown had a record, was under a narcotics indictment in St. Louis, was a parolee from a theft conviction in California, and either was or had been a narcotics addict. The defense, of course, questioned his credibility. His credibility, however, was for the trier of fact, the Trial Judge, who accepted Brown's testimony with caution and apparently only gave credence to the testimony of Brown that was corroborated.³

In their final argument to the Court, defendants asserted their innocence. In addition they stated that they were legally entitled to rely on the defense of entrapment without admitting the substantive act of selling the narcotics, and contend the Government had entrapped them by using an informer to telephone and ask for narcotics. The United States Attorney suggested to the Trial Court that the defendants must first admit the substantive act of selling the heroin before they can contend that the Government entrapped them. Further, the Government argued that from the facts of this case no entrapment has been shown.

The Trial Court made no separate finding on the two arguments, (1) that defendants did not do it, and (2) that if they did they were entrapped, but merely found defendants guilty as charged on certain specified counts.⁴ The Trial Court did not rule that the defense of entrapment was not available, nor did it refuse any testimony offered by the defendants attempting to show entrapment, as the defendants, all of whom testified, denied that they committed the offenses and testified that though they knew Brown, they were at his home for purposes other than the selling of narcotics. They argue entrapment, therefore, solely on the Government's evidence. We are unable to determine from this general finding whether the Trial Court ruled as a matter of law that the defendants were not entitled to raise the defense of entrapment, or, as a matter of fact, decided that there was no entrapment. In passing, we note that the defense of entrapment might not be applicable to the charges of possession of narcotics under § 4704(a), as this offense could have been committed prior to the contact being made by the Government Witness Brown.

In this appeal, defendants' sole argument is that they were legally entitled to rely upon the defense of entrapment without first admitting the substantive act charged. They have made a plausible argument and presented respectable authority for their position. Hansford v. United States, 112 U.S.App.D.C. 359, 303 F.2d 219, 221 (1962). "The defenses were alternative but not inconsistent." Smith v. United States, 118 U.S.App.D.C. 38, 331 F.2d 784 (1964); Henderson v. United States, 237 F.2d 169, 173, 61 A.L.R.2d 666 (5 Cir. 1956), "The two defenses (in this case) do not seem to us so repugnant that proof of the one necessarily disproves the other."; Sears v. United States, 343 F.2d 139, 143 (5 Cir. 1965), "We do not think that it is impermissibly inconsistent for a defendant to deny the acts charged, yet urge * * * that the government's own evidence establishes entrapment as a matter of law." However, we note that there is also considerable respectable authority which holds that such an inconsistent position may not be taken by a criminal defendant. Ortiz v. United States, 358 F.2d 107, 108 (9 Cir. 1966), "(W)here a defendant denies the commission of a crime, he is not entitled to the defense of entrapment * * *"; Ortega v. United States, 348 F.2d 874, 876 (9 Cir. 1965), "(T)o utilize the entrapment defense, an accused must admit he committed acts which constitute a crime * * *"; United States v. Georgiou, 333 F.2d 440, 441 (7 Cir. 1964), cert. denied 379 U.S. 901, 85 S.Ct. 191, 13 L.Ed.2d 176, "By invoking the defense of entrapment, defendant admits commission of the offense charged * * *." See, Ware v. United States, 259 F.2d 442, 445 (8 Cir. 1958).

While there might be some merit in the contention that the alternative defense of entrapment should be available to a defendant, without the defendant admitting his guilt, we do not intend at this time to make a full review of that issue. An extended review of the cases holding both ways on that issue could lead to the conclusion that entrapment should be available only when the acts constituting the commission of the crime charged are admitted. For different views or approaches to this problem, see Sylvia v. United States, 312 F.2d 145 (1 Cir. 1963) and Gorin v. United States, 313 F.2d 641 (1 Cir. 1963). Although alternative and inconsistent defenses are permitted in civil trials, there might be cogent reasons why defenses, inconsistent in fact, should not be allowed in criminal proceedings. We do not believe, however, that it is necessary for us to make a substantive holding on this divided issue, because we believe that as a matter of law the facts of this case cannot support defendants' contention that they were entrapped.

The earlier entrapment cases arose out of factual situations where the accused admitted the commission of the act but sought to excuse the commission because of the entrapment practices employed by the Government. Formerly, the Circuits were divided on whether entrapment actually constituted a defense. The Eighth Circuit, in Butts v. United States, 273 F. 35, 18 A.L.R. 143 (8 Cir. 1921) in an opinion by Judge Walter Sanborn, recognized the defense of entrapment, noting at page 38:

"The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to or create crime for the sole purpose of prosecuting and punishing it. * * (I)t is unconscionable, contrary to public policy * * *."

The Supreme Court granted certiorari to resolve the conflict in the Circuits. Chief Justice Hughes, in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L. Ed. 413 (1932), approved the Butts opinion, citing it as a leading case, recognized the defense of entrapment, held that it may be raised under a general plea of not guilty, based the defense on considerations of general public policy, and further held if evidence of entrapment was presented it was a factual issue to be decided by the jury, unless the evidence as a matter of law established entrapment. The strong concurring opinion of Mr. Justice Roberts, joined by Mr. Justice Brandeis and Mr. Justice Stone, viewed entrapment as a legal issue:

"* * * based on the inherent right of the court not to be made the instrument of wrong (and placed their doctrine) * * * on a fundamental rule of public policy. * * * The protection of its own functions and the preservation of the purity of its own temple belong only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law." Page 457 of 287 U.S., page 218 of 53 S.Ct.

The Supreme Court again, in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), in an opinion by Chief Justice Warren, reaffirmed the majority view in Sorrells, and held that entrapment, unless it can be decided as a matter of law, is a factual issue for the jury. A strong concurring opinion of Mr. Justice Frankfurter, joined by Justices Douglas, Harlan and Brennan, adopted Mr. Justice Roberts' views in Sorrells, that entrapment is a matter for the Court alone to decide, for the "preservation of the purity of its own temple." 385 of 356 U.S., 827 of 78 S.Ct. We are bound by the majority opinion in Sorrells and Sherman, and must view the issue as one of fact, unless, of course, as a matter of law no factual issue is presented.

Probably the Trial Judge was of the opinion that there was no entrapment, as no evidence was pointed out to him as constituting entrapment by defendants' counsel except the bare 'phone call by Brown asking to buy narcotics. This evidence is insufficient to warrant consideration of, or if tried by a jury, submission of, the issue of entrapment.

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