United States v. Henry

• Decision Date: 10 October 1969
• Docket Number: Docket 32181.,No. 138,138
• Citation: 417 F.2d 267
• Parties: UNITED STATES of America, Appellee, v. James HENRY, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

417 F.2d 267 (1969)

UNITED STATES of America, Appellee, v. James HENRY, Appellant.

No. 138, Docket 32181.

United States Court of Appeals Second Circuit.

Argued September 17, 1969.

Decided October 10, 1969.

Paul Paksarian, New York City (Milton Adler, The Legal Aid Society, New York City, on the brief), for appellant.

Allan A. Tuttle, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty. for the Southern District of New York, New York City, Elkan Abramowitz, Asst. U. S. Atty., New York City, on the brief), for appellee.

Before MOORE, HAYS and ANDERSON, Circuit Judges.

MOORE, Circuit Judge:

On April 4, 1967, Federal Narcotics Agent Jack R. Peterson accompanied an informer known as Red Ike to the White Rose Bar on West 125th Street and Broadway in New York City. Inside the Bar he was introduced by the informer to James Henry, the appellant, who was there by prearrangement to meet with Agent Peterson. The agent was posing as a customer for heroin from New Jersey. Some dickering ensued, after which appellant gave Peterson three bundles containing a total of 74 envelopes of heroin in exchange for $270. The events preceding this transaction form the basis for the important question on appeal.

Defendant Henry took the stand and testified to the following series of occurrences. He woke up in the early afternoon of April 4th, suffering withdrawal symptoms from his heroin habit, which had not been satisfied for some 17 hours. Going to the corner of Lenox Avenue and 126th Street, he met his friend Brimstone, a seller of narcotics. He told Brimstone that he was "sick" and needed a couple of "bags" of heroin, but that he had no money. Brimstone told appellant that he was in a hurry, and that he had no heroin at the time. During this conversation, the two were approached by Red Ike. Ike told Brimstone that he had a customer from Paterson, New Jersey, who wanted three bundles of heroin. Brimstone stated that he had some other urgent business to attend to, then turned to Henry and offered him the drugs he had requested if he, Henry, would make the delivery to Red Ike's customer. Henry testified that his response was an unhesitating, "I will." He thereafter accompanied Red Ike to the White Rose Bar, where the fateful rendezvous with Agent Peterson took place.

Henry's story was contradicted by the testimony of the informer, Red Ike. No other evidence touching on the events preceding the sale was introduced.

Appellant was arrested in August, 1967, four months after the alleged sale, and indicted in one count for the unlawful sale of 12.5 grams of heroin. He now contends that his testimony presented an issue of entrapment for the jury, charging error in the trial court's refusal to charge the jury on that question. He also charges error in the refusal of his request to instruct the jury that he should be acquitted if the jury found the Government's conduct shocking, offensive or unfair. Further error is based on the four-month delay in arrest, which appellant asserts was prejudicial to his defense. Finally, appellant contends that the trial court erred in refusing to give a cautionary instruction to the jury regarding the credibility of the informer and his interest in the outcome of the case.

I.

Appellant's principal defense at trial was an attempt to demonstrate the absence of any capacity to form a criminal intent for which he could be held responsible in the sale of narcotics. The absence of capacity was alleged to be due to pharmacological coercion as a result of the withdrawal syndrome Henry was purportedly suffering at the time of the solicitation by Red Ike and the subsequent transaction with Agent Peterson. Expert medical opinion evidence was presented on both sides of the mental incapacity issue, and the jury apparently rejected the defense of "insanity."¹

The pharmacological evidence is again raised by appellant to discountenance the evidence of his propensity, which otherwise might appear to have existed at the time of the solicitation by Red Ike, to sell narcotics without hesitation when the opportunity arose.

Courts in this Circuit since 1952 have consistently treated the defense of entrapment under the two-element formulation propounded by Judge Learned Hand in the first appeal in United States v. Sherman, 200 F.2d 880, 882 (2d Cir. 1952):

"Two questions of fact arise: (1) did the agent induce the accused to commit the offence charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first question the accused has the burden; on the second the prosecution has it."

Judge Hand's opinion defines "inducement" as including "soliciting, proposing, initiating, broaching or suggesting the commission of the offence charged." Id. at 883. Thus the defendant's burden of introducing an issue of fact regarding the "inducement" by a Government agent or informer is relatively slight. On the other hand, the Government's burden to show justification for the inducement, through the defendant's propensity to commit the crime when the opportunity is thus made available, is more difficult. Where an issue of fact is presented regarding the existence of an inducement, "the production of any evidence negating propensity, whether in cross-examination or otherwise, requires submission to the jury, however unreasonable the judge would consider a verdict in favor of the defendant to be." United States v. Riley, 363 F.2d 955, 959 (2d Cir. 1966) (per Friendly, C. J.). However, "even when inducement has been shown, submission to the jury is not required if uncontradicted proof has established that the accused was `ready and willing without persuasion' and to have been `awaiting any propitious opportunity to commit the offence.'" Id.

As evidence of Henry's predisposition to engage in a sale of narcotics, the Government offered testimony by both Agent Peterson and the informer that he had previously offered to arrange sales of heroin. Moreover, the defendant's own testimony clearly demonstrated his willingness, without persuasion by the informer or by Brimstone, to undertake the unlawful transaction for which he was indicted. When asked by Brimstone if he would make the delivery solicited by the informer, Henry admittedly responded without hesitation, "I will."

Appellant does not urge, on the record, any contradiction of the factual evidence of his readiness and willingness to enter into the unlawful transaction. He does not contend that any persuasion was exerted by the Government through its informer, but rather that persuasion rising to the level of compulsion to acquiesce in the proposed unlawful sale was exerted on the defendant by the circumstances of his drug addiction and withdrawal conditions. Thus, it is argued, he was not responsible for his submission to temptation, and proof of his unhesitating acquiescence, although uncontradicted, was not probative as a matter of law of a propensity to commit the crime with which he was charged.

We cannot accept this argument. The appellant has confused the requirement of proof of propensity to commit a crime with the requirement of criminal intent as a distinct and necessary element of the crime itself. The "insanity" defense was offered to negate the required element of specific criminal intent by purporting to show that defendant was not capable, because of his physical and psychological condition, of forming the necessary criminal intent. If his conduct was the product of a mental disease or defect, it was not the product of criminal intent as the law requires. See United States v. Freeman, 357 F.2d 606 (2d Cir. 1966).

On the other hand, to overcome the Government's proof of propensity to commit the crime for purposes of the entrapment defense, some evidence must tend to show that the defendant was not ready and willing to commit the crime when the solicitation was advanced, or that a contrary disposition to hesitate was overcome by the Government's persuasion. Appellant does not, by his evidence of pharmacological coercion, contradict the fact of his readiness and willingness, he merely offers an explanation for it.

The evidence of mental incapacity was properly submitted to the jury for its determination on the question of criminal responsibility for the crime itself; as noted earlier, the jury rejected it. Thus the situation here is somewhat analogous to the one we faced in United States v. Alford, 373 F.2d 508 (2d Cir. 1967). Alford's principal defense was that he had no knowledge...