Pierce v. United States

• Decision Date: 20 August 1969
• Docket Number: No. 25236.,25236.
• Parties: William Clayton PIERCE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

414 F.2d 163 (1969)

William Clayton PIERCE, Appellant, v. UNITED STATES of America, Appellee.

No. 25236.

United States Court of Appeals Fifth Circuit.

July 1, 1969.

Rehearing Denied August 20, 1969.

Jerald David Mize, Houston, Tex., for appellant.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for appellee.

Before COLEMAN and GODBOLD, Circuit Judges, and RUBIN, District Judge.

RUBIN, District Judge:

The defendant, Pierce, was convicted on two counts of passing and selling counterfeit money,¹ and sentenced to a term of ten years. Appealing, he complains that the trial judge improperly refused to charge the jury on entrapment, that the government failed to disclose the address of a witness about whom he inquired in pre-trial proceedings, that the government failed to produce earlier than it did the transcription of a government agent's report concerning statements by defendant, and that he did not receive a fair trial as a result of the conduct of the Assistant United States Attorney who handled the prosecution.

I. ENTRAPMENT — THE FACTS

The principal witness for the government was a Secret Service agent. The agent induced a third person, who was suspected of passing counterfeit bills, to introduce him to Pierce by promising the third person favorable consideration by the United States Attorney's Office. After the agent met Pierce, he began a lengthy series of conversations in an attempt to arrange for the purchase of a quantity of counterfeit money.

The undercover agent initiated the conversations and persisted in them over a period of several months. During this time, he telephoned Pierce a total of thirteen times long distance, made two collect calls that Pierce refused, and spoke to Pierce eight to ten times by local telephone. He also saw Pierce several times at a garage where Pierce engaged in rebuilding wrecked cars. The agent's uncontradicted testimony was that, from the time of the first overture, Pierce was trying to work out a sale of the counterfeit product. Pierce purported to be a broker acting on behalf of undisclosed principals who were themselves the manufacturers. He represented that his principals were skittish. The agent initially tried to buy a small amount of counterfeit money but, although Pierce indicated willingness to do business, each offer eventually proved fruitless because on each occasion he reported some difficulty with the manufacturers. After a time, the agent increased the amount of his offer, and Pierce then became "very receptive."

As a result of further conversations, Pierce arranged to deliver $10,000 in counterfeit $20 bills to the agent at an airport in exchange for $3,500 in genuine currency. An arrest was made in the airport following the exchange.

The government also arrested one Joseph D. ("Red") Holt and charged him with conspiring with Pierce to pass counterfeit money. Holt was acquitted on the conspiracy charge and the court then dismissed that count as to Pierce. The defendant's theory is that the government "attempted to get Red Holt through Mr. Pierce and in the process entrapped Mr. Pierce into committing a crime." Pierce did not take the stand, and only the government's witness testified with respect to these negotiations.

II. ENTRAPMENT — PRINCIPLES APPLICABLE

Certain types of criminal activity are consensual and covert. Hence they are virtually undetectable without the use of a government agent or an informer. Narcotics peddlers, brokers of counterfeit currency, transporters of prostitutes across state lines, and gamblers employing interstate facilities to transmit bets all do business clandestinely. Their victims are willing, sometimes eager, accomplices. Their crimes are likely to go unchecked unless the government can itself approach a suspect to offer him the opportunity to commit a crime and thus give evidence of his guilt. Hence, "it is well settled that the fact that officers or employees of the government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises." Sorrells v. United States, 1932, 287 U.S. 435, 441, 53 S. Ct. 210, 212, 77 L.Ed. 413.

But no one should be convicted of a crime if he was either an innocent seduced by a government agent or one whose resistance was overcome. The government must not lead astray by persuasion or proffered delight even those who had some criminal instincts but "who would normally avoid crime and through self-struggle resist ordinary temptations."²

The United States Supreme Court therefore recognized thirty-six years ago that a person charged with committing a federal crime could successfully defend himself, notwithstanding his commission of acts that would otherwise constitute criminal conduct, if he could show entrapment.³ Sorrells v. United States, 1932, 287 U.S. 435, 53 S. Ct. 210, 77 L.Ed. 413; Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Masciale v. United States, 1958, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. See also Osborn v. United States, 1966, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394. A majority of the Court in the Sorrells case viewed entrapment as being implicitly excepted by Congress from the statutory definition of any crime. A defendant who has been entrapped has not committed the crime proscribed by Congress. Hence, the question of entrapment goes to his guilt or innocence of the offense charged and is to be resolved by the jury.⁴

But even in a criminal prosecution the fact that an issue, if controverted, is for the jury does not require the judge to submit it when a defendant is merely attempting to cloud the minds of the jurors with irrelevancies. There must first be evidence sufficient at least to raise the issue and justify its consideration.⁵ Of course, once there is such evidence it is the function of the jury to weigh it, and the judge cannot refuse to submit the issue merely because he thinks that the defense has little merit.

In this respect, entrapment is no different from any other issue in a criminal prosecution. Difficulties do arise, however, when, as here, courts attempt to determine when the evidence relative to entrapment is sufficient to require the submission of the issue to the jury.

Judge Learned Hand set forth the classic formulation of the problem in United States v. Sherman, 2 Cir. 1952, 200 F.2d 880, as presenting two questions of fact: "(1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offense." 200 F.2d at 882.⁶

This Circuit has also considered entrapment as involving two issues, each to be considered separately. Following Judge Hand's opinion in Sherman,su- pra, we have held that the burden of proving inducement is on the defendant,⁷ and the burden of proving that the inducement did not corrupt an innocent or unwilling man is on the government. Hannah v. United States, 5 Cir. 1968, 396 F.2d 785; Kivette v. United States, 5 Cir. 1956, 230 F.2d 749.⁸

There is dicta in some of our opinions that can be urged to suggest that the entrapment defense should go to the jury whenever there is some evidence of an initial approach by the government. See Wall v. United States, 5 Cir. 1933, 65 F.2d 993; Accardi v. United States, 5 Cir. 1958, 257 F.2d 168; Park v. United States, 5 Cir. 1960, 283 F.2d 253; Walker v. United States, 5 Cir. 1962, 301 F. 2d 94; Brainin v. United States, 5 Cir. 1963, 314 F.2d 460, rehearing denied, 317 F.2d 69. And in a factual situation comparable to the one here presented, the issue of entrapment has been submitted to a jury. Suarez v. United States, 5 Cir. 1962, 309 F.2d 709, 711.

When it first faced the issue squarely, however, this Circuit recently held that the entrapment issue need not be presented to the jury if the evidence does not sufficiently raise the issue. Snowden v. United States, 5 Cir. 1967, 384 F.2d 357. And this is the inevitable conclusion to be reached from the Supreme Court's statement in Lopez v. United States, 1963, 373 U.S. 427, 436, 83 S.Ct. 1381, 1386, 10 L.Ed.2d 462:

"Indeed, the paucity of the showing of entrapment might well have justified a refusal to instruct the jury at all on entrapment."

We affirm the view implicitly adopted in Snowden. There is neither need nor reason for the trial judge to deal with the issue of entrapment differently from the way he handles any other issue. If there is any evidence in the record that, if believed by the jury, would show that the government's conduct created a substantial risk that the offense would be committed by a person other than one ready to commit it,⁹ then, as in all other cases involving questions of guilt or innocence, the jury must be permitted to resolve the matter. If the record as a whole is devoid of such evidence, astute defense counsel may not invite confusion of the jury by seeking charges on this or on any other problem not presented by the case before the court.¹⁰ The court should charge the jury only on issues properly before it; it is not appropriate to convert the charge into a treatise on criminal law.

Hence, there is nothing to go to the jury if the evidence as a whole, including all inferences that can reasonably be drawn from it, both with respect to the government's actions and the defendant's occupation, experience and background, is uncontradicted that the government did not employ methods of persuasion or inducement that would create a substantial risk that the offense would be committed by a person who was not ready to commit it, that is, that it neither misled an innocent person into transgression nor overcame the scruples of a person who would otherwise have resisted temptation. Under these circumstances there is no issue of entrapment for the jury to decide, and an instruction on the...