Suarez v. United States, 19049.

• Decision Date: 14 November 1962
• Docket Number: No. 19049.,19049.
• Citation: 309 F.2d 709
• Parties: Frank SUAREZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

309 F.2d 709 (1962)

Frank SUAREZ, Appellant, v. UNITED STATES of America, Appellee.

No. 19049.

United States Court of Appeals Fifth Circuit.

November 14, 1962.

Joe Brown Booth, W. Emory Dougherty, Miami, Fla., for appellant.

Paul E. Gifford, Asst. U. S. Atty., Alfred E. Sapp, Asst. U. S. Atty., Miami, Fla., Edward F. Boardman, U. S. Atty., Southern District of Florida, Edith House, Asst. U. S. Atty., for appellee.

Before RIVES, JONES and GEWIN, Circuit Judges.

GEWIN, Circuit Judge.

Frank Suarez, Defendant-Appellant, was convicted by a jury on all six counts of an indictment charging him with the purchase and sale of cocaine, in violation of Title 26 U.S.C.A. § 4704(a) and § 4705 (a). On three occasions, Suarez sold to a federal narcotics agent, William H. Mattingly, quantities of cocaine. Suarez was paid $25.00 for 900 milligrams delivered on August 2, 1960; $50.00 for 300 milligrams delivered on August 12, 1960; and $25.00 for one gram delivered August 23, 1960. With respect to the above transactions, Suarez was indicted for the purchase of the cocaine, not in and from the original stamped package (odd numbered counts), and the sale of it, not pursuant to an order form prescribed by the Treasury Department (even numbered counts).

The errors specified and the contentions of Suarez may be summarized as follows: (1) He was entrapped by the Government Agent into committing the crime; and (2) the Court erred in failing to appoint an interpreter to interpret his testimony at the trial. Agent Mattingly had a government informer working for him on narcotics cases in Miami, Florida. The informer introduced Suarez to Mattingly in Suarez's barber shop, but did not disclose that Mattingly was a government agent.

Later, on August 1, 1960, Mattingly went to Suarez's barber shop and told Suarez that he wanted to buy one bottle of cocaine. Suarez replied, "I don't have the cocaine now, but give me the money.". Mattingly then gave Suarez $25.00. The money was furnished by the government. The next day Mattingly came back, went into the backroom of the barber shop with Suarez and received from him a quantity of cocaine.

On August 10, Mattingly went back to the barber shop, met with Suarez and asked him to sell him (Mattingly) two bottles of cocaine, at which time Suarez said that he didn't have the two, but that he could get them, and he requested Mattingly to give him the money then. Mattingly then gave him $50.00. This money was furnished by the government. Suarez said, "Keep checking with me and I'll let you know." On August 12, Mattingly went to the shop again, went into the back room, and was given a quantity of cocaine by Suarez.

Then, on August 23 Mattingly met with Suarez in the morning at approximately 10 o'clock and asked him for one bottle of cocaine, to which Suarez replied, "Well give me the money and I'll see what I can do. I'll see if the man has got any." Mattingly gave him $25.00 of government money at that time. Mattingly came back later that afternoon and the same procedure of going into the back room of the barber shop was followed. Agent Mattingly was provided with a quantity of cocaine the third time by Suarez. Mattingly left the barber shop, gave a signal to two other narcotics agents who went into the barber shop and arrested Suarez. Suarez admits the transactions in connection with the cocaine, but he says he should have been acquitted because he was led into or induced to commit the acts by a representative of the Government.

The issue of entrapment was presented to the jury under careful instructions from the trial judge, to which there was no exception. The issue was resolved against Suarez and he was sentenced to ten years on each count, sentences to run concurrently. Suarez contends that he was entrapped as a matter of law, and that issue should not have been submitted to the jury.

The Supreme Court, in the case of Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), read a legislative intent into criminal statutes to the effect that Congress could not have intended that the processes of crime detection and law enforcement should be abused by the instigation by government agents of an act on the part of persons, otherwise innocent, in order to lure them into the commission of a crime and then punish them. In that case, the issue was not allowed to go to the jury by the trial judge. The Supreme Court held that the issue of entrapment under the facts and circumstances of the Sorrells case should have been submitted to the jury.

In Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), a case strongly relied upon by Suarez, the Supreme Court reversed the trial court for submitting the issue of entrapment to the jury, holding that the defendant was entrapped as a matter of law. In that case it was the undisputed testimony of the prosecution's witness that the sales of narcotics made to the government's informer, were brought about by the informer's persistent solicitation in the face of obvious reluctance on the part of the defendant, whom the informer believed to be undergoing a cure for narcotics addicts, and by the informer's appeals to sympathy based on mutual experiences with narcotic addiction plus the informer's story of his own suffering. In defining the law of entrapment, the court held:

"However, 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. (Emphasis supplied.) See 287 U.S., at 441, 451 53 S.Ct. at 212, 216. 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."

The foregoing principle of law has been followed by this Circuit prior to and since the decision in Sherman, supra. Gargano v. United States (5 Cir., 1928), 24 F.2d 625; Demos v. United States (5 Cir., 1953), 205 F.2d 596; Accardi v. United States (5 Cir., 1958), 257 F.2d 168. Clearly,...