U.S. v. Hairrell

• Decision Date: 25 August 1975
• Docket Number: No. 75-1185,75-1185
• Citation: U.S. v. Hairrell, 521 F.2d 1264 (6th Cir. 1975)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Eugene Edwin HAIRRELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1264

521 F.2d 1264

UNITED STATES of America, Plaintiff-Appellee, v. Eugene Edwin HAIRRELL, Defendant-Appellant.

No. 75-1185.

United States Court of Appeals Sixth Circuit.

Aug. 25, 1975.

Hughie Ragan, Jackson, Tenn. (Court-appointed C.J.A.), for defendant-appellant.

Thomas F. Turley, W. Hickman Ewing, Jr., Asst. U. S. Atty., Memphis, Tenn., for plaintiff-appellee.

Before CELEBREZZE, PECK and LIVELY, Circuit Judges.

LIVELY, Circuit Judge.

The defendant appeals his conviction on all counts of a four-count indictment charging him with possession and transfer of counterfeit currency. Defendant had previously been indicted for possession of counterfeit currency and acquitted by a jury which convicted his co-defendants. At the trial from which the present appeal arose defendant admitted the possession and transfer of the counterfeit bills, but asserted defenses of double jeopardy and entrapment. On appeal we consider these defenses and other claims of error.

There is no merit in the argument that the present prosecution constitutes double jeopardy. This defense clearly has no application to the two counts of the indictment in which Hairrell was charged with "passing" counterfeit currency, since his earlier trial was on a charge of possession only. Even though the defendant testified that the counterfeit bills which he delivered to the government informer in the present case were the same ones he was unsuccessfully charged with possessing at an earlier time, his continued possession after acquittal constituted a new and different offense from that with which he was previously charged. This is so because of the nature of a possession-type crime. If one charged with possession of contraband avoids its confiscation and then is acquitted he gains no immunity from prosecution for his continued possession of the proscribed material.

The criterion by which a claim of double jeopardy is tested is whether the same proof would be sufficient to uphold a conviction on both the previous charge and the challenged one. If one requires proof of facts not required by the other the cases do not involve the same offense and the second prosecution does not violate the constitutional prohibition against double jeopardy. Riadon v. United States, 274 F.2d 304 (6th Cir.), Cert. denied, 364 U.S. 896, 81 S.Ct. 225, 5 L.Ed.2d 189 (1960); United States v. Carlton, 475 F.2d 104 (5th Cir.), Cert. denied, 414 U.S. 842, 94 S.Ct. 100, 38 L.Ed.2d 80 (1973). Defendant was convicted of possessing counterfeit currency at a different time and place in the present case from the time and place involved in the earlier charge. The two offenses are not in law and fact the same even though possession of the same counterfeit currency may have been involved in both.

The defendant also objected to the indictment on the ground of "multiplicity." The essence of this claim is that he had a single cache of counterfeit bills in his possession, which he delivered to the government informer in a single transaction and that he should have been charged with only one offense. The charges of possession and transfer clearly related to separate offenses and are not multiplicitous. One possession and one transfer charge concerned a number of counterfeit twenty dollar bills and the other pair of charges related to a single one hundred dollar bill that was included in the transfer.

" Multiplicity" is the charging of a single offense in separate counts. Wright, Federal Practice and Procedure, § 142, p. 306 (1969 ed.). There was evidence in this case that the $100 bill was treated by defendant and the purchaser as being different from the twenties. It was recognized that it would be harder to pass than the bills of a smaller denomination and defendant apparently did not charge the government informer for the hundred when he agreed to take all the twenties. Even if the indictment were held to be multiplicitous, the defendant has failed to show any prejudice resulting to him. Though he was convicted on all four counts, defendant was only sentenced under the first count. Count one carried a maximum of 15 years imprisonment and a $5,000.00 fine; defendant was sentenced to three years. Imposition of sentence on counts two, three and four was suspended and defendant was placed on probation for a period of three years beginning at the termination of his imprisonment. Under these circumstances defendant has no basis for claiming that he was harmed by the fact that he was charged in four counts rather than two. United States v. Nickerson, 211 F.2d 909, 911 (7th Cir. 1954).

A number of issues have been raised with respect to the entrapment defense. First, it is argued that the district court should have held that defendant was entrapped as a matter of law. In effect, he contends that the evidence shows, without contradiction, that the criminal design originated with the government, that government agents implanted the idea of breaking the law in his mind at a time when he had no disposition to commit the offense and that the government induced him to break the law so they could prosecute him. See Sorrells v. United States, 287 U.S. 435, 441-42, 53 S.Ct. 210, 77 L.Ed. 413 (1932). This argument ignores the fact that the government informer testified that he and the defendant talked about getting rid of the counterfeit money before the informer went to the police or attempted to induce the defendant to sell the bogus money to him. The Supreme Court has found entrapment as a matter of law where it was "patently clear" that a defendant was induced by a government informer to commit a crime. Sherman v. United States, 356 U.S. 369, 373-75, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). The facts in that case are far different from those disclosed by the present record.

In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the Supreme Court reviewed its opinions in Sorrells and Sherman and concluded that they "establish that entrapment is a relatively limited defense." Id. at 435, 93 S.Ct. at 1644. The defense of entrapment is not established as a matter of law by demonstrating that the government provided the opportunities or facilities for commission of the crime or that deceit was employed to induce a defendant to deal with government agents. If there is any showing of a predisposition on the part of the defendant to commit the crime, it is for the jury to determine whether government agents actually implanted the criminal design in the mind of the defendant. Though the government informer in the present case misrepresented himself to gain the confidence of the defendant and was persistent in his efforts to obtain counterfeit money from him, the district court properly held that the evidence required that the issue of entrapment be submitted to the...