U.S. v. Henry, 83-1366

Citation749 F.2d 203
Decision Date12 December 1984
Docket NumberNo. 83-1366,83-1366
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Harold Donald HENRY, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

John H. Hagler, Curtis D. Glover, Dallas, Tex., for defendant-appellant.

James A. Rolfe, U.S. Atty., James T. Jacks, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before CLARK, Chief Judge, GEE, RUBIN, REAVLEY, POLITZ, RANDALL, TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, and HILL, Circuit Judges. *

TATE, Circuit Judge:

We granted en banc rehearing, 727 F.2d 1373 (5th Cir.1984), to resolve a conflict in circuit precedent as to when a defendant in a criminal trial is entitled to have the jury instructed on his defense of entrapment.

Our precedential rule is uniform that a defendant may not invoke the entrapment defense by requesting that the issue be submitted to the jury while he denies committing the act charged in the indictment. United States v. Garrett, 716 F.2d 257, 270 (5th Cir.1983); United States v. Rey, 706 F.2d 145, 147 (5th Cir.1983). On the other hand, as will be described more fully below, our prior precedents are divided (or at least confusing) as to whether a defendant is entitled to have the jury decide his entrapment defense if, by his testimony, he admits the acts charged in the indictment but denies they were committed with the culpable mental state required for conviction.

For reasons to be set forth more fully, we hold that:

1. If the government's evidence raises an entrapment issue, in order to be entitled to an entrapment instruction the defendant may simply rest on his plea of not guilty and require the government to prove beyond reasonable doubt that he is guilty both of performing the acts charged and of his criminal intent in doing so.

2. If either the government's or the defendant's evidence fairly raises the issue of entrapment, the defendant may take the stand or adduce evidence on his own behalf that negates his criminal intent and yet be entitled to have his entrapment defense decided by the jury. However, he may not, in that event, deny that he has committed the acts charged, because this would create an impermissible inconsistency in his defense.

We thus adopt the view of the preponderant decisions of this circuit on the issue 1 and overrule expressions that may be deemed to be to the contrary in other circuit decisions. 2 Accordingly, we reverse the convictions in this case, and we remand for a new trial.

Overview

By our panel opinion, 727 F.2d 1373 (5th Cir.1984), we affirmed the conviction of the defendant Henry, a licensed pharmacist, on eleven counts of dispensing controlled substances for improper purposes in violation of 21 U.S.C. Sec. 841(a)(1) and 21 C.F.R. Secs. 1306.04(a) and 1306.06. Henry admitted filling all prescriptions charged by the indictment, but he flatly and steadfastly denied that in doing so he ever intended to dispense drugs for non-medical purposes.

The evidence shows that Henry filled these prescriptions at the behest of a paid government informant and an undercover police agent. Before submission of the case to the jury, Henry requested the district court to charge the jury, in addition to standard criminal intent instructions that, if the jury found Henry had no previous intent or purpose to violate the law but was induced or persuaded by governmental agents to commit the crime, the jury should acquit him as a victim of entrapment. 3 The district court refused to so charge the jury, on its belief that under circuit precedent (see note 2 supra ) the defendant could not at one and the same time deny committing an act with criminal intent and also assert that he was entrapped into doing the act because any criminal intent found by the jury was first implanted into his mind by the government.

On submission to the jury without the entrapment instruction, the defendant was convicted of all counts. 4

The panel conceded, as is explicated more fully in part I below, that the record evidence would support an inference " ' "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," ' " United States v. Webster, 649 F.2d 346, 349 (5th Cir.1981) (en banc), so as to entitle the defendant to an entrapment instruction--except for his testimony as to his lack of criminal intent in dispensing the drugs.

The panel concluded that, to be entitled to an entrapment instruction, the defendant must not only concede the acts charged but also that "culpable intent must be conceded before entrapment's inquiry into where the intent began becomes material." 727 F.2d at 1377. The panel so concluded on its analysis that the entrapment defense is "in the nature of a confession and avoidance." Id. Accordingly, to invoke the entrapment defense, the defendant's admission must not only concede the physical act charged but also the culpable intent, because until the accused admits that "a crime, an act or acts done with an accompanying culpable intent, has been committed, no occasion arises to examine" whether the defendant's criminal liability may be avoided on the ground that he was entrapped into committing the crime. Id.

The panel recognized that its holding was in conflict with other circuit precedents (see note 1 supra ), such as United States v. Greenfield, 554 F.2d 179 (5th Cir.1977), cert. denied, 439 U.S. 860, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978)--which the panel described as "a decision on facts all but identical to those of today's case," 727 F.2d at 1374--, but it relied upon expressions in another line of circuit decisions (see note 2 supra ) as supporting its view as better reasoned than the former.

We conclude, however, that this analysis overlooks the nature of the entrapment defense. As set forth in part II infra, under decisions of the Supreme Court, the fundamental nature of the entrapment defense available under a plea of Not Guilty is a denial that any crime within the intent of Congress was committed by the accused. The defense is thus not a plea of confession and avoidance that requires an accused to admit that he committed a crime before he may contend that his acts in so doing were the result of entrapment.

Further, by asserting the entrapment defense while denying subjective criminal intent with regard to the acts admittedly committed, under our preponderant circuit jurisprudence (see note 1, supra ) the accused is not with "impermissible" inconsistency denying criminal intent in doing them. Instead of being forced to concede his criminal guilt in order to assert an entrapment defense, the accused is being permitted both to testify to his lack of subjective criminal intent, in which he himself may deeply believe, and also (should the jury conclude otherwise) to assert this defense as recognized by the Supreme Court--namely, that nevertheless no criminal violation was proved because any criminal acts by the accused found by the jury were the result of governmental inducement that he do them, despite his lack of predisposition.

We shall now discuss in more detail the facts and applicable legal principles as follows: I. The entrapment showing in this case; II. The nature of the entrapment defense under decisions of the Supreme Court and this circuit; III. The availability of an entrapment defense and entrapment instructions for a non-testifying defendant; and IV. Whether any different rationale or principle requires that the entrapment defense be unavailable to an accused who testifies that he committed the physical acts charged, but swears that he did not do them with criminal intent.

I.

In order for a defendant to be entitled to entrapment instructions and to have the jury decide his entrapment defense, the record must contain evidence from which the jury could find (1) governmental inducement that might cause one to act criminally where he otherwise would not and (2) the accused's lack of intent, before contact by governmental agents, to commit the crime charged. 5 As the panel noted, "[t]he record contains evidence adequate to support an inference by the jury favorable to Henry on the [entrapment] issue" and its submission to the jury, 727 F.2d at 1374, but the panel viewed the entrapment defense as unavailable to an accused who testifies to his lack of criminal intent in committing the acts charged, id.

We now advert briefly to the record evidence by which the jury might infer Henry's lack of criminal intent before contact by governmental agents and governmental inducement for Henry to commit a crime where he otherwise would not have done so, which results in Henry's entitlement to assert his entrapment defense.

Henry, a licensed pharmacist, was charged with filling physicians' prescriptions for Schedule II narcotics knowing that his customers had no legitimate medical purpose for them. The customers in question were a paid informant and an undercover police officer. During the summer of 1982 they took several prescriptions, written by physicians cooperating with law enforcement authorities in the investigation, to Henry to be filled. Their conversations with Henry were tape-recorded. 6

Henry testified in his own behalf that he did not know the prescriptions he filled would be used other than for a legitimate medical purpose. He denied hearing most of the inculpatory comments made by the informant and the undercover officer, explaining that he was very busy with his work. The governmental agents represented to Henry that they had actually seen the doctors and that the doctors had prescribed the drugs in question. Henry testified that he relied on the existence of apparently valid prescriptions written by licensed physicians who had examined his customers. Further, Henry had telephoned the Drug Enforcement Administration before the investigation began...

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