U.S. v. Swiderski, s. 801

• Decision Date: 11 June 1976
• Docket Number: 812,Nos. 801,D,s. 801
• Parties: UNITED STATES of America, Appellee, v. Walter SWIDERSKI and Maritza De Los Santos, Appellants. ockets 75-1422, 75-1423.
• Court: U.S. Court of Appeals — Second Circuit

Page 854

539 F.2d 854

UNITED STATES of America, Appellee, v. Walter SWIDERSKI and Maritza De Los Santos, Appellants.

Nos. 801, 812, Dockets 75-1422, 75-1423.

United States Court of Appeals, Second Circuit.

Argued March 11, 1976.

Decided June 11, 1976.

Richard A. Greenberg, New York City (William J. Gallagher, The Legal Aid Society, New York City, of counsel), for appellant Swiderski.

Julius Wasserstein, Brooklyn, N. Y., for appellant De Los Santos.

Ira H. Block, Asst. U. S. Atty., New York City (Thomas J. Cahill, U. S. Atty., and T. Barry Kingham and Harry C. Batchelder, Jr., Asst. U. S. Attys., New York City, of counsel), for appellee.

Before FRIENDLY, MULLIGAN and GURFEIN, Circuit Judges.

GURFEIN, Circuit Judge:

This is an appeal from judgments of conviction entered after a jury trial in the United States District Court for the Southern District of New York, Dudley B. Bonsal, Judge, on an indictment charging both appellants with possession with intent to distribute marijuana and cocaine. Appellant Walter Swiderski (Swiderski) was found guilty of possession of cocaine with intent to distribute and appellant Maritza De Los Santos (De Los Santos) was found guilty of possession of both cocaine and marijuana with intent to distribute. ¹ The amount of cocaine involved was the relatively small amount, as these cases go, of one ounce. Both appellants were sentenced to two years of imprisonment, of which all but six months were suspended, plus a three-year term of special parole.

The evidence was primarily that of a government informer, Martin Charles Davis. Davis was a drug dealer who had become frightened when the strict New York drug laws took effect in 1973. He went to the New York City Police Department to clear his record and was asked to become an informer for them, but he declined the offer because the New York City Police were not prepared to pay any money for his informing. Later he was contacted by agents of the federal Drug Enforcement Administration (DEA) who were willing to pay him money for informing on narcotics violators. Davis accepted their offer and agreed to work on a contingent fee basis. He would be rewarded depending on the number of drug dealers he successfully introduced to DEA agents and the number of seizures made. Davis received approximately $10,000 for his own use during the time he worked for the DEA.

Davis testified that he had been introduced in 1973 to Swiderski who mentioned to Davis that he was selling tetrahydracannabinol, an illegal drug, and that he wanted Davis's assistance in finding purchasers. He further testified that, during the next year and a half, Swiderski had spoken with him several times about the possibility of dealing in narcotics. Davis stated that on May 31, 1975, he received a call from Swiderski, who told him that he wanted to buy cocaine. That night, Swiderski came to Davis's hotel room and, according to Davis, asked Davis if he could obtain for him a quarter of a pound of cocaine for about $4000. Davis testified that he then got in touch with a DEA agent and, after receiving clearance from the agent, called a representative of a drug dealer he knew named Carlton Bush and arranged for Bush to sell Swiderski the cocaine he requested. On June 3, 1975, Swiderski and De Los Santos, his fiancee, went to Davis's hotel room. The three of them then drove to Bush's apartment. Davis testified that Swiderski and De Los Santos made various tests to determine the quality of the cocaine and, after some hesitation, agreed to purchase it, although they felt that it was not good enough for their own personal use. Bush stated that he had only one ounce at hand at the time and that they would have to come back later to get the other three ounces. Accordingly, Swiderski gave Bush $1250 and received the one ounce of cocain in return. They agreed to meet at the apartment later that day to complete the deal. After the transaction was completed, Swiderski and De Los Santos drove Davis back to his hotel on 23rd Street.

Appellants then continued north on Eighth Avenue to Eighth Avenue and 34th Street. At this point, cars pulled both ahead of them and behind them, and armed DEA agents got out of the cars and arrested the defendants. Swiderski backed up several times in an attempt to escape from agents and, in the process, damaged the DEA cars. At the time Swiderski and De Los Santos were arrested, De Los Santos's purse was searched and found to contain an ounce of cocaine, a small vial of marijuana and $3700 in cash. Swiderski was found to have $600 in cash on his person.

Swiderski did not deny the arrest, nor his attempt to run from his pursuers. Nor did he deny that drugs and cash were found in the car he was driving. These facts were corroborated by police officers. Swiderski did deny, however, that he had instigated the transaction and contended that he had been entrapped by Davis. He testified that he had first met Davis in November 1973 and had seen him about 20 times in the next year and a half. He further testified that on May 31, 1975 Davis called him and offered to get him some marijuana. Swiderski stated that he went to Davis's hotel room and eventually decided not to purchase the marijuana, but instead purchased $65 worth of "speed." Swiderski testified that on June 1st and 2nd he did not speak to Davis because he and De Los Santos were busy attending the National Boutique Show at the McAlpin Hotel. He swore that on June 3, 1975, he intended to purchase several thousand dollars worth of merchandise for a store run by De Los Santos as well as certain clothes for his own use. That morning, he testified, Davis called him and informed him that he was able to obtain some cocaine. Swiderski said that he thought Davis's story was unbelievable. An hour later Davis called again and invited Swiderski to attend a party at which he would be "turned on." That afternoon Swiderski went with De Los Santos to the Hotel Chelsea, where he met Davis, and the three of them went to a building on West 48th Street. Swiderski testified that he went into this "creepy looking" tenement type of building "hesitantly." He stated that when he arrived at the apartment, he was given a small quantity of cocaine to "snort," after which Davis insisted that he and De Los Santos purchase the entire package of cocaine. At this point Swiderski testified that he asked Davis "how much is it going to cost me to get out of here" and he was told that it would cost $1250. He testified that he was afraid that he would be beaten up and, accordingly, gave Davis $1250. He stated that the package of cocaine was dropped into De Los Santos's handbag by some unidentified person. He further explained away the scene at which he had attempted to get away from the DEA agents by stating that he did not know that the agents, who wore dungarees were really policemen and that he was in fear of his life.

De Los Santos, in her testimony, to which we shall advert in more detail below, supported Swiderski's story in the main.

The jury had to decide whether to believe the testimony of Davis, who was an acknowledged narcotics dealer and who was described at trial by the government itself as "not a model citizen," "a paid headhunter" and "not a nice guy," or whether to believe the story of Swiderski and De Los Santos. The jury convicted both defendants.

I

Swiderski contends that the trial court's charge on entrapment substantially prejudiced his defense because the jury was told that the defendant had the burden of establishing the elements of entrapment by proof beyond a reasonable doubt. The government concedes that if this is what the judge charged it is error. The government contends, however, that the error was cured, taking the judge's charge as a whole.

The law in this circuit is clear that if there is evidence of initiation or inducement by a government agent, the government has the burden of proving that the defendant had a predisposition to commit the crime. United States v. Sherman, 200 F.2d 880, 882-83 (2 Cir. 1952). There Judge Learned Hand laid down the governing rule which analyzed the defense of entrapment as presenting two issues: "(1) did the agent induce the accused to commit the offence 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 offence." He added: "On the first question the accused has the burden; on the second the prosecution has it." 200 F.2d at 882-83.

We have continuously followed this rule regarding the burden of proof. For example, in United States v. Riley, 363 F.2d 955, 958 (2 Cir. 1966), we said that if inducement is shown "the prosecution would then have the burden of proving propensity beyond a reasonable doubt to a jury which is always free to disbelieve its witnesses." See also United States v. Rosner, 485 F.2d 1213, 1221-22 (2 Cir. 1973), cert. denied, 417 U.S. 950, 94 S.Ct. 3080, 41 L.Ed.2d 672 (1974); United States v. Braver, 450 F.2d 799, 806 (2 Cir. 1971), cert. denied, 405 U.S. 1064, 92 S.Ct. 1493, 31 L.Ed.2d 794 (1972); United States v. Greenberg, 444 F.2d 369, 371-72 (2 Cir.), cert. denied, 404 U.S. 853, 92 S.Ct. 93, 30 L.Ed.2d 93 (1971); United States v. Bishop, 367 F.2d 806, 809 (2 Cir. 1966). The defendants requested a proper charge which was denied, ² and counsel objected at the conclusion of the charge that "in discussing entrapment I think you placed too heavy a burden on the defendant."

The question is whether we can square this undisputed division of the burden of proof with the judge's entire charge. We must, therefore, set it forth at length as the United States Attorney presents it to us. We have emphasized by italics the objectionable portions of the charge.

"Now, the defense of entrapment is available to Mr. Swiderski if you find that he was induced or enticed to commit the crime here which he would not otherwise have committed.

"If Davis' role was to...