United States v. Chisum

• Decision Date: 24 April 1970
• Docket Number: Crim. No. 5079-CD.
• Citation: 312 F. Supp. 1307
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Burette CHISUM, Defendant.

312 F. Supp. 1307

UNITED STATES of America, Plaintiff, v. Burette CHISUM, Defendant.

Crim. No. 5079-CD.

United States District Court, C. D. California.

April 24, 1970.

Wm. Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Criminal Division, Thomas E. Kotoske, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff.

Carl E. Stewart, Los Angeles, Cal., for defendant.

FERGUSON, District Judge.

This is a case of first impression in federal courts involving the issue of entrapment when the government supplies counterfeit money to a person and then arrests him for receiving it.

The defendant is charged with violating 18 U.S.C. § 473, the indictment stating that on October 30, 1969, he knowingly received 500 counterfeit Federal Reserve Notes, with intent to pass them as genuine. After the government responded to his bill of particulars, the defendant moved to dismiss the indictment and for a judgment in bar on the ground that he was entrapped as a matter of law.

The undisputed facts, as disclosed by the government for the purpose of the motion, reveal that a Paul Metzger had been charged with dealing in counterfeit money in the Los Angeles area, and the charges against him had received widespread coverage by the news media. On October 12, 1969, the defendant, a stranger to Metzger, and without solicitation, came unannounced to Metzger's home. He told Metzger that he had read about Metzger in the newspapers and wanted to buy all the counterfeit money that he had. He gave Metzger his calling card. He stated that he had funds to purchase counterfeit bills and told Metzger to check into his credit rating. He left asking Metzger to call him. Metzger immediately contacted the Secret Service.

Three days later, Metzger called the defendant and told him that he did not want to become personally involved with defendant's proposal, but suggested that the defendant meet with Metzger's brother-in-law, "Larry". "Larry" was in fact a Secret Service Agent.

The next day, Metzger and the defendant met at a restaurant. The defendant again offered to buy all the counterfeit bills that Metzger had, stating that if the transaction were conducted uneventfully there would be others. The defendant told Metzger that he knew how to handle the police, knew their method of operation, and assured Metzger that they would not be discovered. Metzger told the defendant that "Larry" would meet the defendant the following evening to show him samples of the counterfeit money.

The following day, "Larry" and the defendant met. The defendant told "Larry" that he wanted to buy all of Metzger's counterfeit money, and further stated:

1. The defendant was not going to pass the bills himself, but would wholesale them to others.

2. The defendant had done this before and knew what counterfeit bills were worth.

3. The defendant was familiar with the operations of the F.B.I. and the Secret Service, knew their operations and knew how to deal with them.

The defendant and "Larry" discussed the amount of counterfeit bills and the price to be paid for them. "Larry" showed the defendant samples of counterfeit bills, but refused to let the defendant have them. Arrangements were made to meet again.

On October 30, 1969, "Larry" called the defendant. The defendant stated that he had been waiting a week to hear from him and had unsuccessfully tried to contact him on several occasions. "Larry" asked if the defendant was still interested in the transaction, and the defendant replied that he was, suggesting that the transaction be completed that evening. The defendant stated that he wanted the transaction to be accomplished at a place where he could leave quietly and easily. The parking lot of a restaurant was agreed upon.

That night, in the parking lot, "Larry" and the defendant met, the Secret Service Agent bringing with him the counterfeit money alleged in the indictment. "Larry" opened the trunk of his automobile and the defendant took out a box which contained the counterfeit bills. The defendant opened the box, examined the bills and then placed them in the trunk of his automobile. He was then arrested for receiving counterfeit bills with the intent to pass them as genuine.

The motion to dismiss must be granted, and defendant is entitled to a judgment in bar for the reason that the acts of the government agent in delivering and supplying the counterfeit bills constitute entrapment as a matter of law. An explanation of the court's ruling is not without difficulty, primarily because very few cases reach the type of governmental activity involved here.

There appears to be no mention among English writers on criminal law of entrapment as a defense to a charge of crime. It is an American doctrine, and it does not have a statutory basis in the federal system although many of the states have made entrapment a matter of statutory prescription. The original and current status of entrapment in the federal courts derives from two opinions of the United States Supreme Court, Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958).

In Sorrells, a government agent posed as an old service friend of the defendant. Playing on this feigned comradeship, the agent repeatedly asked the defendant to get him some illegal liquor; each time the defendant balked. Finally, the defendant sold the agent $5.00 worth of liquor, for which he was later convicted. The Supreme Court reversed, finding entrapment as a matter of law.

In Sherman, the defendant and a government informer were patients of the same doctor for treatment of narcotic addiction. The informer feigned suffering so as to play on the defendant's sympathy until the defendant supplied the informer with narcotics. Again, the Supreme Court reversed the conviction finding entrapment as a matter of law.

By virtue of these decisions, entrapment is recognized in the federal courts as a defense to prosecution. In Sorrells, the Court concluded that the defense was implicit in congressional intent in enacting the National Prohibition Act. The origin of the defense was thus one of statutory construction. As Chief Justice Hughes states for the majority in Sorrells, supra, at 448, 53 S.Ct. at 215:

"We are unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them."

In Sherman, Chief Justice Warren endorsed the Hughes view of entrapment, and refused to reassess the majority opinion.

The emphasis in judicial opinions on entrapment defenses, at least in the federal courts, since Sorrells, has been on two elements: inducement and predisposition. In order to establish the defense it has been necessary to establish (1) lack of any criminal predisposition in the accused, and (2) governmental activity which reaches beyond the simple acquisition of evidence of a crime.

The Supreme Court last examined the doctrine of entrapment in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963), where the Court affirmed a conviction of attempted bribery. There a government agent went into the defendant's saloon to inquire as to violations of the excise tax laws. The defendant, without any statement from the agent, offered to pay the agent a bribe if the agent would forget the matter.

The classic case which gives rise to the defense of entrapment, therefore, is one in which the government agent induces the intent of the defendant to commit the wrong. The typical situation is where the officer, after having reason to suspect that the defendant has been engaged in some illegal activity, e. g., sale of narcotic drugs, approaches the suspect and offers to buy contraband from him. The suspect, ignorant of the solicitor's official capacity, sells to the officer the illegal drug. The entrapment issue is then a factual one—did the officer induce the requisite criminal intent? Chief Justice Hughes, in Sorrells, described entrapment as "when the criminal design originates with the officers of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." 287 U.S. at 442, 53 S.Ct. at 212.

If the defense of entrapment must be confined solely to the issue of intent, then the defendant's motion must fail. It is clear that the facts as presented here reveal that the intent to commit the crime arose solely in the mind of the defendant without inducement by the government. The intent to illegally possess counterfeit money was his own creation.

There does not appear to be any single, well-recognized and consistent rationale for the entrapment defense. Reasons frequently advanced in support include (1) estoppel where there is evidence of governmental misconduct Casey v. United States, 276 U.S. 413, 425, 48 S.Ct. 373, 72 L.Ed. 632 (1928) (Justice Brandeis dissenting); (2) constitutional concepts of due process Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L. Ed.2d 1344 (1959), Note, Due Process and the Entrapment Defense, 1964 U. Ill. L. Forum 821, and Comment, The Serpent Beguiled Me and I Did Eat— The Constitutional Status of the Entrapment Defense, 74 YALE L. J. 942 (1965); (3) the innocence theory Sorrells, supra and Sherman, supra; (4) public policy Ritter v. United States, 293 F. 187 (9th Cir. 1923); and (5) preservation of the integrity of the judicial processes Sorrells, supra (Justice Roberts concurring), and Sherman, supra (Justice Frankfurter concurring).

In both Sorrels, and in Sherman, the Supreme Court was "sharply divided" Lopez, supra 373 U.S. at 434, 83 S.Ct. 1381 over an acceptable foundation for a claim of entrapment. The majority in both cases stressed...