United States v. Lemons, 10632.

• Decision Date: 22 December 1952
• Docket Number: No. 10632.,10632.
• Citation: 200 F.2d 396
• Parties: UNITED STATES v. LEMONS.
• Court: U.S. Court of Appeals — Seventh Circuit

200 F.2d 396 (1952)

UNITED STATES v. LEMONS.

No. 10632.

United States Court of Appeals Seventh Circuit.

December 22, 1952.

Julius Lucius Echeles, Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty., Joseph E. Tobin, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before DUFFY, FINNEGAN and LINDLEY, Circuit Judges.

DUFFY, Circuit Judge.

Defendant was indicted for violating certain Federal Narcotic Laws, Title 26, Secs. 2553(a) and 2554(a), and Title 21, Sec. 174, U.S.C.A. The charges involve the possession by defendant of one ounce of heroin on September 15, 1951, the possession of two ounces of heroin on September 19, 1951, and the possession and sale of two ounces of heroin on September 25, 1951. The trial was to the court, which found the defendant guilty as charged and sentenced him to five years imprisonment on each count, the sentences to run concurrently.

On this appeal defendant's sole reliance is upon the defense of entrapment. This court discussed in some detail the law of entrapment in United States v. Perkins, 1951, 190 F.2d 49, where the defendant was likewise accused of violating Federal Narcotic Laws. We pointed out that it was difficult to state an all-embracing definition of entrapment, but that it was well established that decoys may be used to present opportunity to one intending and willing to commit crime, but that the use of decoys is not permissible to ensnare the innocent and law-abiding into the commission of crime. We also pointed out that when the criminal design originates, not with the accused, but in the mind of government officers, and the accused is lured by persuasion, deceitful representation or inducement into the commission of a criminal act, then the government is estopped by sound public policy from prosecuting the one who commits it. We quoted with approval the statement of this court in an earlier case that something more than mere use of decoys or detectives by the government is necessary to create an estoppel, and that to sustain the defense of entrapment, there must be deception of such a character as to make it unconscionable for the government to press its case.

In United States v. Markham, 7 Cir., 191 F.2d 936, which was also a case where the defendant was charged with violating narcotic laws, we pointed out that the issue of entrapment is a question of fact. In the case at bar in which a jury had been waived, the trial judge specifically found that there was no entrapment.

Defendant supports his argument almost entirely by reference to his own testimony. He claimed that he had not previously engaged in the purchase, possession or sale of narcotics, saying that his "racket" was gambling and that he "wrote policy." He admitted frequently visiting Mrs. Thomas' apartment, and contends that he obtained the heroin only because of her frequent requests therefor, and that he did so as a favor to her and without profit to himself. On cross-examination defendant admitted that he had been convicted twice for burglary and had served sentences therefor in the State penitentiary.

The evidence discloses that contact with the defendant was made through one Celia Thomas, also known as Celia LaCroix and as "Momma." She occupied a flat on the south side of Chicago, which defendant claimed was used as a house of prostitution and for conducting poker games. Federal Narcotics Agent Gales...