U.S. v. Henry

• Decision Date: 12 March 1984
• Docket Number: No. 83-1366,83-1366
• Citation: 727 F.2d 1373
• Parties: 15 Fed. R. Evid. Serv. 293 UNITED STATES of America, Plaintiff-Appellee, v. Harold Donald HENRY, Defendant-Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1373

727 F.2d 1373

15 Fed. R. Evid. Serv. 293

UNITED STATES of America, Plaintiff-Appellee, v. Harold Donald HENRY, Defendant-Appellant.

No. 83-1366

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 12, 1984.

Opinion on Granting of Rehearing En Banc April 23, 1984.

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

James T. Jacks, Dallas, Tex., for plaintiff-appellee.

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

Before GEE, POLITZ and JOHNSON, Circuit Judges.

GEE, Circuit Judge:

Appellant Henry, a licensed pharmacist, appeals his conviction by a jury 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. We reject the three grounds he advances for reversal and affirm his convictions.

Entrapment

Evidence shows that Henry filled large numbers of prescriptions for such substances at the behest of a paid government informant and an undercover police agent. Further evidence shows that he often did so under extremely dubious circumstances, circumstances that amply supported the jury's conclusion that he knew the drugs he dispensed were to be used for recreational, not medical, purposes. ¹

Taking the stand in his own behalf, Henry admitted filling all prescriptions charged in the indictment but flatly and steadfastly denied that in so doing he ever intended to dispense drugs for non-medicinal purposes. Relying on authority that a defendant may not at one and the same time deny committing a crime and assert that he did commit it but was entrapped into doing so by the government, the trial judge declined to submit Henry's requested jury instructions on entrapment. The record contains evidence adequate to support an inference by the jury favorable to Henry on the issue. Thus the question is squarely posed for decision: may a defendant admit the factual acts upon which his criminal prosecution is based but deny that they were done with culpable intent, while at the same time contending that although he did act with criminal intent, that intent was first implanted in his mind by the government--so that he must be excused from punishment for criminal acts done with criminal intent. The question is a somewhat embarrassing one for our Court, since candor requires us to acknowledge that we have already spoken to it with two voices. Which line of authority are we to follow today?

Circuit Entrapment Authority

On the one hand is to be found United States v. Greenfield, 554 F.2d 179 (5th Cir.1977), a decision on facts all but identical to those of today's case. There, as here, a medical practitioner admitted prescribing drugs, denied doing so with culpable intent, sought an entrapment charge, and was denied it because "the entrapment defense is not available until the defendant admits the commission of the crime." Id. at 181. A panel of our Court reversed, first noting the settled rule of our Circuit that a defendant may not claim entrapment and at the same time deny having committed the physical acts charged, but going on to say

We do not believe that it is impermissibly inconsistent under these circumstances for a defendant also to argue that to the extent that the jury may find culpability on his part, he was entrapped. The defendant may say, "I did not go so far as to prescribe drugs without a legitimate medical purpose, but to the extent that you find that I did, I was entrapped." For instance, in this case the defendant was charged with having dispensed drugs illegally on ten different dates. The jury convicted him for the last three prescriptions. The jury evidence concluded that while the early prescriptions for Ms. Conner were legitimate, the defendant knew as time passed that her numerous visits for drugs were not proper. We are persuaded under these circumstances it is permissible for the defendant to argue to the jury that he was entrapped. That is, he may argue that he did not knowingly dispense the drugs without a legitimate medical purpose or, alternatively, he may argue that to the extent that he may have prescribed without a legitimate medical purpose, he was not predisposed to do so.

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We do not decide that the defendant is entitled to an entrapment defense upon retrial. We simply hold that the entrapment defense is not so inconsistent with the defense of lack of intent under the circumstances of this case as to preclude the alternative defenses.

Id. at 183 (footnote omitted).

There would be no flaw in this plausible argument had Greenfield taken consistent positions on each of the charges; it is certainly conceivable that he was innocent of the first seven counts (as the jury found) and entrapped as to the last three, and there neither is nor could be any requirement that he take the same position as to each charge made in the indictment. The difficulty is that he did in fact seek to do so; adopting as to each act charged the inconsistent position that he acted without culpable intent (in his sworn testimony)--and that the culpable intent with which he acted was implanted in his mind by the government (by requesting the entrapment instruction). If there be degrees of inconsistency, as the passage quoted from Greenfield suggests, this seems an instance of a high one: not only that a culpable intent both did and did not exist in the same person at the same time, but that if it did it had a particular cause. See also United States v. Garrett, 716 F.2d 257 (5th Cir.1983) (conceded payments were intended as political contributions, not bribes; but if intended as bribes, entrapment).

It is thus clearly apparent that Greenfield and Garrett squarely address the issue before us and hold that a criminal defendant may both deny that he acted with culpable intent and assert that the culpable intent with which he acted was implanted in his mind by the government.

On the other hand, an earlier line of authority in the Circuit, extending backward in time at least to 1967, affirms without particularized discussion criminal convictions in which only culpable intent was in issue--the factual acts being admitted--and a requested instruction on entrapment was refused because that intent was not admitted. The background of these opinions is further complicated by language in many of them to the effect that the criminal act was denied. One might take such language as a reference to the physical acts alone. For example, in McCarty v. United States, 379 F.2d 285 (5th Cir.1967), we stated:

Once on the stand McCarty had a choice: deny the acts constituting the offense or admit that he committed the acts but contend he was entrapped. Having elected to deny that he committed the acts charged he was not entitled to an instruction on entrapment.

379 F.2d at 287. The opinion makes plain, however, that it was solely a culpable intent that McCarty denied, not his factual acts themselves:

McCarty testified that he thought a bundle of dirty clothes given to him by ... a government informer contained illicit diamonds and no marijuana and that he had no intention of dealing with marijuana....

379 F.2d at 286 n. 1 (emphasis added).

Similar instances abound. In United States v. Brooks, 611 F.2d 614 (5th Cir.1980), Brooks did not deny selling guns illegally: only that he intended to violate the law. 611 F.2d at 616-17. We held:

No error is alleged concerning the entrapment defense. In view of this it is doubtful that we should even consider the alternative defense. For there is, as we have recently said, "a veritable legion of opinion in this Circuit" that a defendant may not simultaneously plead entrapment and deny committing the acts on which the prosecution is predicated. United States v. Greenfield, 554 F.2d 179, 181 (5th Cir.1977), cert. denied 439 U.S. 860, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978), and cases cited therein. The rationale for the rule is based on the inherent inconsistency of saying at the same time, "I didn't do it," and "the government tricked or seduced me into doing it." The continued cogency of this position has been debated, see United States v. Demma, 523 F.2d 981 (9th Cir.1975) (en banc), and United States v. Greenfield, supra, but as a panel we are bound by the law of the circuit.

664 F.2d at 618.

The same is true of our more recent decision in United States v. Nicoll, 664 F.2d 1308 (5th Cir.1982). There we stated:

The law of this circuit requires that to assert the defense of entrapment, the defendant must admit he committed the acts on which the prosecution is predicated. E.g., United States v. Brooks, 611 F.2d 614, 618 (5th Cir.1980). Nicoll's defense throughout the case was that he only wished to "lead on" the DEA in the hope of getting a small sample of cocaine for his personal use, and specifically denied an intent to distribute cocaine as charged in the indictment. Having failed to assert entrapment as a defense at trial, Nicoll cannot now raise it on appeal.

664 F.2d at 1314 (emphasis added). Clearly only Nicoll's intent was disputed; nevertheless we ruled that he had "failed to assert entrapment as a defense."

Finally, in United States v. Rey, 706 F.2d 145 (5th Cir.1983), we stated, "It is the law of this circuit that one may not claim he was entrapped into a criminal act without first admitting that he did in fact commit it." 706 F.2d at 147. In that case the defendant did not seriously dispute his involvement in the acquisition of forbidden drugs. Instead he weakly suggested that his intent in doing so was not a culpable one. Id.

These authorities, then, draw no distinction pertinent to present purposes between admitting physical acts and admitting the intent with which they must have been committed in order to have constituted them a crime: where only intent was denied, they declare that--the criminal acts not being admitted--a plea of entrapment should not be entertained. We...