United States v. Harrell, 71-2357.
Decision Date | 21 April 1972 |
Docket Number | No. 71-2357.,71-2357. |
Parties | UNITED STATES of America, Plaintiff-Appellee, v. Rufus Eafie HARRELL, Defendant-Appellant. |
Court | U.S. Court of Appeals — Fifth Circuit |
Euel A. Screws, Jr., Montgomery, Ala., for defendant-appellant; James Prestwood, Andalusia, Ala., and Hobbs, Copeland, Franco & Screws, Montgomery, Ala., of counsel.
Ira DeMent, U. S. Atty., D. Broward Segrest, Montgomery, Ala., for plaintiff-appellee.
Before THORNBERRY, COLEMAN and INGRAHAM, Circuit Judges.
This case comes as a reminder that while the law of entrapment is relatively plain its application to any particular case often remains clouded and confused.
This is the second appearance of this case in this Court. Our former decision is reported, United States v. Harrell, 5 Cir., 1970, 436 F.2d 606 Judges Simpson, Morgan, and Ingraham.
On the former appeal, Rufus Eafie Harrell, the appellant, had been convicted of conspiracy to violate the Internal Revenue Laws, sale of non-tax paid spirits 2 counts, and possession of 200 gallons of such contraband. He was sentenced to imprisonment for thirty months. The conviction was reversed for the admission of inadmissible hearsay evidence.
The evidence surrounding the alleged offenses is fully reported in our former decision, 436 F.2d 609-611.
When the case came on for a second trial, after being reversed and remanded, Mr. Harrell was convicted only of conspiracy to violate the Internal Revenue Laws with reference to non-tax paid whiskey, 18 U.S.C. § 371. He was sentenced to serve thirty months in the custody of the Attorney General. He was acquitted of the three other counts which charged sale and possession.
On the present appeal, we affirm the judgment of the District Court.
Stripped to their essentials, the contentions presently raised are that Harrell was entitled to a judgment of acquittal because he was entrapped as a matter of law, or, in any event, the jury charge on entrapment was fatally defective.
We are of the opinion that the question of a directed acquittal (entrapment as a matter of law) was settled, as the law of the case, on the former appeal. On facts not materially dissimilar to those adduced at the trial now under review, this Court held:
This leaves only the question of whether the jury instructions on entrapment were erroneous. We briefly discussed jury instructions in the former opinion, 436 F.2d 612, and stated that the conviction would have been reversed for error in the instructions if there had been timely objection in the trial court. We went ahead to say that once the defendant has come forward with some evidence of inducement then the jury must be instructed that it is the government's burden to prove entrapment beyond a reasonable doubt. Attention was directed footnote 6, 436 F.2d 612 to Notaro v. United States, 9 Cir., 1966, 363 F.2d 169, and four other decisions, dealing with the procedural guidelines to be followed once the entrapment issue is raised.
On the trial now under review the District Court charged the jury, as to the burden of proof on entrapment, as follows:
Before the District Judge instructed the jury R. 168-169, in a colloquy with defense counsel, he stated, .
Upon completion of the charge R. 186-187, when exceptions or objections were called for, the following took place:
In Notaro the Ninth Circuit approved, as correct, this (first) part of the jury instructions:
"If, then, the jury should find beyond a reasonable doubt from the evidence in the case that before anything at all occurred respecting the alleged offense involved in this case, the accused was ready and willing...
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