United States v. Clarke

• Citation: 343 F.2d 90
• Decision Date: 31 March 1965
• Docket Number: 14806.,No. 14805,14805
• Parties: UNITED STATES of America v. Eric R. CLARKE, Appellant in No. 14805, and Horace R. Johnson, Appellant in No. 14806.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

343 F.2d 90 (1965)

UNITED STATES of America v. Eric R. CLARKE, Appellant in No. 14805, and Horace R. Johnson, Appellant in No. 14806.

Nos. 14805, 14806.

United States Court of Appeals Third Circuit.

Argued October 9, 1964.

Decided March 31, 1965.

John Rodgers Carroll, Philadelphia, Pa., for Clarke.

Robert N. C. Nix, Jr., Philadelphia, Pa., for Johnson.

Joseph H. Reiter, Asst. U. S. Atty., Philadelphia, Pa. (Drew J. T. O'Keefe, U. S. Atty., Philadelphia, Pa., on the brief), for appellees.

Before KALODNER, GANEY and FREEDMAN, Circuit Judges.

KALODNER, Circuit Judge.

Following a jury trial, the defendants, practicing physicians, were found guilty of conspiring to violate the federal narcotic laws¹ and making unlawful sales of narcotics drugs.²

They prosecute their appeals on the grounds that (1) the trial judge erred in refusing to withdraw a juror following testimony of a government witness with respect to prior, unrelated unlawful narcotic sales by the defendant Clarke, and (2) the defense of entrapment was established as a matter of law in the government's case.

The appeals followed the trial judge's denial of the defendants' motions for judgments of acquittal and/or a new trial. 224 F.Supp. 647 (E.D.Pa.1963).

We will first consider the motion for a new trial. It is directed solely to the trial judge's denial of the defendants' motions for withdrawal of a juror which were premised on the following testimony of a government witness, John Ripa, a federal narcotic agent, during his direct examination by Mr. Reiter, the prosecutor.

"Q. In driving Mr. Clarke was there any conversation during that drive home?

"A. I am not sure whether the conversation was in the car or back at the office, but there was other conversation where Dr. Clarke told me that he furnished a considerable amount of cocaine to a fellow in New York City —

"Mr. Carroll: I object.

"Mr. Reiter: I withdraw that question.

"Mr. Carroll: I move for the withdrawal of a juror.

"Mr. Nix: I join in that on behalf of Dr. Johnson.

"The Court: Denied. The jury will disregard anything that they have just heard in the last minute." (N.T. p. 82)

The sum of the defendants' contention is that since their defense is entrapment, the testimony that Clarke had admitted to Agent Ripa that he had, prior to the unlawful sales charged in the indictment, "furnished a considerable amount of cocaine to a fellow in New York City", was so prejudicial that no instruction to the jury to disregard it could have "cured" it.

The government's position is that (1) the prompt instruction given by the trial judge to "disregard" the mooted testimony "removed any possible prejudice"; and (2) the evidence could have been admitted as relevant as bearing on the defendants' "state of mind, knowledge, or degree of wilfullness" since the defense was entrapment.

The short answer to the government's second point is that it not only did not attempt at the trial to justify the stricken testimony as admissible because of its possible bearing on the defense of entrapment, but actually withdrew it as evidence when it withdrew the question which precipitated it.

In rejecting the defendants' contention, the trial judge said (p. 650):

"* * * the Court, at the time of the instruction to the jury to disregard regard the testimony, looked directly at the jury to determine the effect of the prompt and direct instruction. It was heartening to the Court to see all of the jurors, including the alternates in the box, nod unanimous assent to the instruction of the Court.

"At this juncture of the case, it is only the trial Judge who can determine the effect on the jury of prompt and direct instruction. It was the considered judgment of the Court that the jury had understood the instruction, had accepted it, and that they thereafter did not consider the stricken testimony in further deliberation of the case. * * *

"The instruction in the instant case was prompt and clear and removed any possible prejudice to the defendants because of the testimony in question. To say the jury disregarded the Court\'s instruction on this one statement is to engage in pure speculation which is unfounded. Had the Court any idea that this episode would prejudice the defendants in the jury\'s mind, the Court would not have hesitated for one minute in withdrawing a juror. While occurrences such as these are unfortunate, unless defendants\' rights are prejudiced, the trial should not be unduly called off or delayed. It is the considered judgment of the Court that this occurrence did not react to the detriment of the defendants."

The trial judge's view, that his "prompt and direct" admonition to the jury to disregard the properly stricken challenged statements of Ripa, "removed any possible prejudice * * * in the jury's mind" brings to mind the immortal lines:

"The Moving Finger writes; and, having writ,

Moves on: nor all your Piety nor Wit,

Shall lure it back to cancel half a Line,

Nor all your Tears wash out a Word of it."

Rubáiyát, Stanza 71

Here, the critical crux of the defense was that in March and April 1962 the defendants, while under pressure of financial distress, had been seduced by the government's specially employed agent, their long-time friend, New York bartender Joseph Flores, into making unlawful sales of narcotics.³

Entrapment occurs "* * * when the criminal design originates with the officials 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." Sorrells v. United States, 287 U.S. 435, at page 442, 53 S.Ct. 210 at page 212, 86 A.L.R. 249 (1932). (Emphasis supplied.)

In Sherman v. United States, 356 U.S. 369, p. 372, 78 S.Ct. 819, p. 821, 2 L.Ed. 2d 848 (1958) the critical test in determining whether the defendant was entrapped was stated as follows:

"To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal." (Emphasis supplied.)

Here, Agent Ripa's stricken testimony, that the defendant Clarke had admitted unlawful trafficking in cocaine in the past, struck at the very heart of the defense of entrapment which is available only when the government officials "implant in the mind of an innocent person the disposition to commit the alleged offense." Keeping in mind the abhorence and revulsion with which decent citizens regard those who unlawfully traffic in narcotics, it cannot be gainsaid that the nature of the testimony was of such critical and grave proportions as to irretrievably scorch itself into the conscious and subconscious minds of the jury. The most valiant effort on the part of a conscientious juror to obey the trial judge's admonition to disregard the testimony could only be an exercise in futility. It is one thing to "strike" evidence from notes of testimony; it is something else again to "strike" its searing impress from a juror's mind.

We had occasion, in Beck v. Wings Field, Inc., 3 Cir., 122 F.2d 114 (1941), to consider a situation where a trial judge, in a civil suit, refused to grant a motion for withdrawal of a juror because of "highly improper" testimony of a witness. There too, the trial judge said to the jury "I want to say to the members of the jury that I want you to disregard that evidence entirely. That has nothing to do with this case." (p. 115)

We there said (pp. 116-117):

"The question * * * with which we have to deal is whether the prejudicial and harmful effect of the volunteered remark could possibly be eradicated from the jury\'s thinking while deliberating upon the case. If it

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