United States v. Costello

• Decision Date: 17 September 1973
• Docket Number: No. 73-1808. Summary Calendar.,73-1808. Summary Calendar.
• Citation: 483 F.2d 1366
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. J. C. COSTELLO, aka J. M. Costello, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

483 F.2d 1366 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. J. C. COSTELLO, aka J. M. Costello, Defendant-Appellant.

No. 73-1808. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

September 17, 1973.

John D. Buchanan, Jr., Tallahassee, Fla., for defendant-appellant.

William H. Stafford, Jr., U. S. Atty., Robert L. Crongeyer, Jr., Asst. U. S. Atty., Pensacola, Fla., for plaintiff-appellee.

Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

PER CURIAM:

This is an appeal from a conviction of possession of LSD in violation of 21 U. S.C. § 844(a)¹ and of distributing LSD in violation of 21 U.S.C. § 841(a)(1).² The appellant, James Costello, argues that the district court erred in three respects: (1) denying his motion for a bill of particulars, (2) failing to instruct the jury on the defense of entrapment, and (3) imposing consecutive sentences for a single criminal act. We affirm.

Costello, a college student, went to the apartment of his friend, Bob Heine. About the time Costello arrived Heine received a call from a person identified as Sue, now disclosed to have been acting as an undercover government informer. Heine interrupted his conversation with Sue to ask Costello if he "had heard of any drugs around." Costello responded that he had heard of some "acid." At Heine's request, Costello talked briefly to Sue on the phone about the procurement of some LSD. At approximately 8 p.m. that same day undercover agents, Fallon, Eckard and the informer, Sue, visited Heine's apartment. Costello met them there, took some money from the agents and returned approximately five mintues later with a plastic bag containing 50 tablets of LSD. At his trial Costello testified that he had acquired the LSD from a third person only for purposes of this sale, that he had no police record, and he had never sold drugs before or since.

Costello's first two assignments of error are interrelated. He argues that the evidence presented was sufficient to require the court to instruct the jury on the law of entrapment, and that in the event it is held to be insufficient, such insufficiency resulted from the trial judge's abuse of discretion in denying his motion to discover evidence necessary to prove entrapment.

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, 442, 53 S.Ct. 210, 212, 77 L.Ed. 413 (1932). The mere fact that the government provides the "opportunities or facilities for commission of the offense" is not sufficient. Sorrells, supra at 442, 53 S.Ct. at 212. There must be some inducement. The success of an entrapment defense is determinative of the guilt or innocence of an accused and as such is a jury question. In this circuit the initial burden of going forward with some evidence of inducement by law enforcement officials is on the defendant, and "if a defendant fails to carry the burden on the issue of entrapment forward, he is not entitled to submission of the issue to a jury." United States v. Groessel, 440 F.2d 602, 606 (5th Cir. 1971); Pierce v. United States, 414 F. 2d 163, 167 (5th Cir. 1969), citing Snowden v. United States, 384 F.2d 357 (5th Cir. 1967).

A brief comparison of the instant case with our recent opinion in United States v. Workopich, 479 F.2d 1142 (5th Cir. 1973), should illustrate why the trial judge was correct in not instructing the jury on entrapment. In Workopich the defendant, an addict, was approached not once but several times before he finally agreed to procure some heroin for undercover government agents. Additionally, it had been represented to him that the heroin was for addicts, like himself, who were experiencing the severe pains of withdrawal symptoms. In holding that the defendant was entitled to an instruction on entrapment the court noted that ultimately in making the sale "the defendant was compliant but not eager."

The instant case is altogether different. Costello himself testified that after a brief "social exchange" the party on the telephone, known to him only as Sue, asked him if he could get some "acid." He replied that he had heard of some and agreed to "check on it." Such testimony does not show the least reluctance on his part nor does it evince even an inference of inducement by Sue. According to Costello himself, Sue merely inquired. She never tried to persuade. The most any government agent did was provide him the opportunity for commission of the crime. In refusing to instruct on entrapment the trial...