United States v. DeVore

• Decision Date: 18 March 1970
• Docket Number: No. 13580.,13580.
• Citation: 423 F.2d 1069
• Parties: UNITED STATES of America, Appellee, v. Robert N. DeVORE, M.D., Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

423 F.2d 1069 (1970)

UNITED STATES of America, Appellee, v. Robert N. DeVORE, M.D., Appellant.

No. 13580.

United States Court of Appeals, Fourth Circuit.

Argued December 3, 1969.

Decided March 18, 1970.

Charles Porter and Terrell L. Glenn, Columbia, S. C. (Glenn & Porter, Columbia, S. C., Garvin & Grant, Aiken, S. C., and Blatt, Fales & Peeples, Barnwell, S. C., on the brief), for appellant.

Thomas P. Simpson, Asst. U. S. Atty. (Joseph O. Rogers, Jr., U. S. Atty., on the brief) for appellee.

Before WINTER and CRAVEN, Circuit Judges, and HARVEY, District Judge.

CRAVEN, Circuit Judge:

Dr. Robert N. DeVore was charged in a nine-count indictment involving unlawful sale of drugs in violation of 21 U.S.C. §§ 331(q) (2), 331(q) (4) (Supp. IV 1965-1968) and 21 U.S.C. § 331(p) (1964). After five counts were dismissed DeVore was tried and convicted on the remaining four counts, sentenced to a term of four years in prison, and fined $22,000. On appeal he assigns six points of error in support of his contention that we should direct acquittal, or at the very least, order a new trial. We believe none are meritorious and affirm.

I.

Dr. DeVore's first three points of error relate to the defense of entrapment.¹ The defense of entrapment rests on the premise that the purpose of law enforcement is the prevention, not the manufacture, of crime. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). In fulfilling this purpose the police may utilize stealth and deception, so long as these strategies do not "induce" an otherwise innocent person to commit a crime. Sherman v. United States, supra, 356 U.S. at 372, 78 S.Ct. 819. The government may provide the opportunities or facilities for the commission of an offense by one otherwise predisposed to criminal activity, Sherman v. United States, supra, at 372, 78 S.Ct. 819; United States v. Catanzaro, 407 F.2d 998 (3rd Cir. 1969); United States v. Soles, 401 F.2d 521 (6th Cir. 1968), cert. denied, Nelson v. United States, 394 U.S. 931, 89 S.Ct. 1201, 22 L. Ed.2d 461 (1969); United States v. Smalls, 363 F.2d 417 (2d Cir. 1966), cert. denied, 385 U.S. 1027, 87 S.Ct. 755, 17 L.Ed.2d 675 (1967), but may not implant a criminal disposition into the mind of an innocent person, Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L. Ed. 413 (1932); Eisenhardt v. United States, 406 F.2d 449 (5th Cir. 1969); McDowell v. United States, 383 F.2d 599 (8th Cir. 1967); Goss v. United States, 376 F.2d 812 (5th Cir. 1967); Rogers v. United States, 367 F.2d 998 (8th Cir. 1966); United States v. Irwin, 354 F.2d 192 (2nd Cir. 1965), cert. denied, 383 U.S. 967, 86 S.Ct. 1272, 16 L.Ed.2d 308 (1966); United States v. Gaines, 353 F. 2d 276 (6th Cir. 1965). Thus, two elements, the quality of the police conduct and the defendant's state of mind, are relevant in deciding whether there has been entrapment. The interaction of the two has caused some difficulty in formulating the burden of proof and has led to some suggestion that the government may not offer the opportunity to commit crime without first showing that there are reasonable grounds to believe that defendant is predisposed to commit the offense. See Lunsford v. United States, 200 F.2d 237 (10th Cir. 1952); Ryles v. United States, 183 F.2d 944 (10th Cir. 1950), cert. denied 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 637; Heath v. United States, 169 F.2d 1007 (10th Cir. 1948). We believe, with the First Circuit, that this goes too far. See Kadis v. United States, 373 F.2d 370 (1st Cir. 1967). Indeed, in this circuit it has been settled since Newman v. United States, 299 F. 128 (4th Cir. 1924), that the government need not have reasonable grounds to suspect illegal conduct before offering the opportunity to commit a crime.

In Kadis the First Circuit correctly formulated the rule: if the defendant, through government witnesses or otherwise, shows some indication that he was corrupted by government agents, the burden of disproving entrapment will be on the prosecution. A showing of solicitation alone, however, will not suffice to place the burden of going forward with evidence on the government, since solicitation by itself is not the kind of conduct that would persuade an otherwise innocent person to commit a crime. See, e. g., Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932); United States v. Berry, 362 F.2d 756 (2d Cir. 1966); cf. Lopez v. United States, 373 U.S. 427, 437, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963). The defendant, therefore, must also produce some evidence of unreadiness on his part, or of persuasion by the agent. Kadis is novel only in expressing the rule in terms of burden of proof. It was previously well established that a defendant must show prima facie overreaching inducive conduct on the part of the government before the issue of entrapment would be submitted to the jury. See, e. g., Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958); Wiley v. United States, 277 F.2d 820 (4th Cir. 1960).

When the rules just discussed are applied to the facts of this case, it becomes apparent that DeVore failed to make an adequate showing of inducement. A government agent testified that he received information about Dr. DeVore's activities on two occasions in the latter part of 1967 and that he assigned another agent to investigate the reports. The investigating agent testified that he went to Dr. DeVore's office and posed as a truck driver seeking pills to keep him awake on a long trip. According to the agent the doctor agreed to give him a few pills, but at first refused to supply pills in large quantities for fear that the government would check his records. The agent told him that he was able to handle great quantities of pills for $100.00 per thousand, and Dr. DeVore ultimately agreed to obtain 10,000 Dexedrine pills for $1,000.00. On a subsequent visit to the office the agent arranged for a future sale of 500-1,000 pills, referred to as "red birds." When the agent returned to pick up the 10,000 Dexedrine pills, he paid the doctor $850.00 and arranged to pay the balance a few days later. On a later visit he paid the $150.00 and purchased another bottle of pills, Nembutal, for $100.00. He also placed an order for 14,000 additional pills — 10,000 Dexedrine, 2,000 Dexamyl, and 2,000 Nembutal. Over two weeks later he returned for the order of 14,000 pills and negotiated for additional shipments of drugs in larger quantities, but at a reduced price. He did not take the order of pills at that time, arranging instead to pick them up a few days later. He did return for the pills and paid the doctor $1,050.00 for the shipment, which he later found to be 2,000 pills short. On his final visit he recorded his conversation with the doctor by means of an electronic transmitter, which he carried on his person. On that occasion he purchased 10,000 Dexedrine pills and arrested Dr. DeVore. Portions of the tape recording were admitted into evidence in corroboration of the agent's testimony.

Dr. DeVore's version of what transpired differed from the agent's in two respects. First, he asserts that on the first contact he told the agent that he could not provide him with any pills. The main difference between his testimony and the agent's, however, was the reason the doctor gave for engaging in the contacts with the agent in the first place. He claims that he dealt with the agent only in order to trap him for the police. Dr. DeVore admittedly never informed the authorities of this plan, but he contends that he was, nevertheless, susceptible to plans of cooperation with the police, since he had once posed as a buyer of stolen goods to help state authorities catch a typewriter thief.

On this state of the record the government should never have been burdened with disproving entrapment. Dr. DeVore did not testify to any excessive behavior on the part of the government that could be said to be so inducive to a reasonably firm person as likely to displace mens rea. Under the principles we have discussed, therefore, no "inducement" to commit the crime was ever shown. There was only solicitation — the providing of opportunity. With no more than this, Dr. DeVore was not entitled to a jury instruction on the issue. See Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963); United States v. Berry, 362 F.2d 756 (2d Cir. 1966); see also Pierce v. United States, 414 F.2d 163 (5th Cir. 1969), cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425 (1969).

Nevertheless, under the district court's charge, Dr. DeVore was given the benefit of an instruction on entrapment and more. The judge twice gave the jury an example of lawful entrapment in which the government had reasonable grounds to believe that a suspect was engaged in illegal activity before its agents initiated a solicitation. The court probably did not intend the example as an instruction that reasonable grounds to believe in predisposition are a necessary element of lawful entrapment. However, by including reasonable grounds as a part of its illustration, the court gave DeVore more than he deserved under the rule in this circuit. See Newman v. United States, 299 F. 128 (4th Cir. 1924).

Finally, even assuming the issue of entrapment was properly raised by Dr. DeVore's evidence, the issue was one for the jury. See Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). The conflicts between the agent's testimony and the testimony of Dr. DeVore presented an issue of fact. In light of Dr. DeVore's failure to notify the police of the trap he was purportedly setting, the jury was justified in discrediting his version of the events.

II.

In his fourth point of error DeVore...