United States v. Masciale, 356

Citation236 F.2d 601
Decision Date22 August 1956
Docket NumberDocket 23977.,No. 356,356
PartiesUNITED STATES of America, Appellee, v. Frank MASCIALE, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Merrell F. Clark, Jr., New York City, for defendant-appellant.

Marie L. McCann, Asst. U. S. Atty., Eastern Dist. of New York, Brooklyn, N. Y. (Leonard P. Moore, U. S. Atty., Brooklyn, N. Y., on the brief), for appellee.

Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.

HINCKS, Circuit Judge.

The defendant appeals from his conviction on three counts of an indictment, two of which charged him with a sale of narcotics on March 2, 1954, in violation of two sections of the revenue laws, and the third (Count 5 of the indictment) with conspiracy to make a sale, in violation of 21 U.S.C.A. § 174.

As stated in his brief, "Defendant does not deny that the narcotics sale took place; he does not deny that he participated, though not directly, in that sale." Instead, he invokes the defense of entrapment. On the ground that "the Government failed to produce any substantial evidence that the defendant was ready and willing without persuasion to commit the offense" he predicates error on the failure of the trial judge to direct an acquittal. No criticism is made, or could be made, of the judge's charge.

It is not disputed that one Marshall, an agent of the Bureau of Narcotics, in December 1953, informally employed one Kowel to help in uncovering narcotics "pushers"; that on January 14, 1954, Kowel introduced Marshall to the defendant, representing him (Marshall) to be a buyer of narcotics in large quantities; that in the ensuing weeks both Marshall and Kowel were in frequent touch with the defendant in connection with a possible sale of narcotics; that the defendant himself sought out one Seifert and introduced him to Agent Marshall on March 1, 1954, for the purpose of arranging a sale; that the sale was accomplished on the following day.

Marshall testified that on January 14, 1954, after Kowel Jack had introduced him to the defendant as "Chappie," the following transpired: "Chappie, Jack and I then sat down in one of the booths and almost immediately we started to discuss the narcotics traffic. I told Chappie that I was interested in large quantities of drugs, heroin to be exact, and not as a street pusher, if I may quote, but that I had — I transacted my business — I posed as a seller out of New York City and I was only interested in good and large quantities, and he should tell me right away if he is not the person to see, then we will finish this conversation pleasantly right then and there"; that thereupon he the defendant inquired as to the extent of Marshall's activity in narcotics and said that he, Masciale, "was primarily a gambler and that he was not a narcotics trafficker as such, that his business is mostly gambling but that he knew the right people in the narcotics traffic * * * and knew someone whom he considered high up in the narcotics traffic to whom he would introduce me and that I was able to get * * * 88 per cent pure heroin from this source." Agent Marshall further testified that after numerous telephone calls and several personal meetings with the defendant, who said he was interested in sales because of his need of money, they met, together with Agent Finlay, on March 1, 1954, when the defendant introduced them to Seifert who said he could arrange to supply them with heroin and who did in fact arrange a sale of an ounce to Marshall for $400. To facilitate the consummation of the sale, Marshall testified, the defendant loaned his automobile to Seifert.

The defendant himself testified that on January 15, when he met Marshall for the second time, Marshall brought up the subject of narcotics and asked, "Are you going to get the ball rolling?" to which he (the defendant) replied: "I am trying"; that on about February 15, he met Marshall who offered $400 for a sample of heroin and that he then replied: "I have got to have the money first"; that thereupon Marshall gave him the money which he later returned with the explanation that the expected source of the sample "did not show up." He testified that on about February 25 he told Marshall he was going to approach another source from whom he believed a purchase might be made in a large amount and that he himself approached Seifert, who was this other source, and after a favorable contact with Seifert called Marshall by telephone for a meeting for the express purpose of arranging a sale.

It is true that the defendant further testified that Kowel over a period of several months had urged him to engage in the narcotics traffic, pointing out the pecuniary rewards which might be expected both by the defendant and by Kowel; that for months he had rebuffed Kowel's importunities; that in meeting Marshall and purporting to cooperate he was in fact merely "stringing him along" in order to increase Kowel's prestige in the eyes of Marshall. However, the jury may well have believed the defendant when he testified as to his voluntary cooperation with Marshall throughout the whole period of their acquaintance and may have thought him lying when he testified that his experience in the traffic was nil and that his cooperation with Marshall in the earlier stage of their acquaintance was feigned.

On the facts, we think it plain that this is a case in which both the sale and the conspiracy were induced by Marshall, a Government agent. That being so, the burden was on the Government, by way of reply to the defense of entrapment, to prove a sufficient excuse for the inducement. United States v. Sherman, 2 Cir., 200 F.2d 880,1 882. In that case, this court said: "It is a valid reply to the defence, if the prosecution can satisfy the jury that the accused was ready and willing to commit the offense charged, whenever the opportunity offered." And in the same case it was said that, once the inducement is shown, the prosecution "had to satisfy the jury that" the defendant "did not need any persuasion; but that he stood ready to procure heroin for anyone who asked for it".

In the Sherman case, it is true, it was held that the prosecution had failed to prove a valid reply to the defense of entrapment. In the case at bar, however, the evidence against the defendant is palpably stronger. There was evidence that the defendant here in his first meeting with the Government agent, who had been introduced to him as a prospective buyer of narcotics, boasted that "he knew the right people in the narcotics traffic" and promised an introduction. Also in this case there is the testimony of the defendant himself that in his second meeting with Marshall he said "I am trying" to find you (Marshall) a source of supply and that when he later had made a favorable contact with Seifert he himself called Marshall to arrange the sale.

Nor are the proofs of the Government's reply insufficient for failure to show that the defendant's conduct in arranging the sale was induced without persuasion by Kowel. For, as noted above, the defendant himself testified that he had consistently rebuffed Kowel's importunities. Moreover, he further testified that, when finally at Marshall's inducement he made his contact with Seifert, Kowel "was no longer in the picture" and assented to the question, "So that as far as you knew he was no longer concerned in the transaction?"

The case on appeal has been ably presented by assigned counsel for whose assistance the court is grateful. Nevertheless, notwithstanding the excellence of the advocacy, we think the evidence sufficient to warrant a finding that the defendant at Marshall's...

To continue reading

Request your trial
19 cases
  • United States v. Roth, 387
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 18, 1956
    ...least ever since. Ackley v. United States, 8 Cir., 200 F. 217, 222. In no event was there any improper entrapment. See United States v. Masciale, 2 Cir., 236 F.2d 601. The government's summation in the case was within the scope of the evidence, and the court's charge was concise and correct......
  • U.S. v. Townsend
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • June 7, 1977
    ...to cooperate he was in fact merely 'stringing him along' in order to increase Kowel's prestige in the eyes of Marshall." 236 F.2d 601, 603 (2d Cir. 1956). Petitioner's testimony on this score was undisputed. But the Supreme Court, while finding that Masciale had made out a prima facie showi......
  • Cross v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • June 23, 1965
    ...the seeds of the crime where none such existed before? See, Whiting v. United States, 321 F.2d 72 (1 Cir., 1963); United States v. Masciale, 236 F.2d 601 (2 Cir., 1956), aff. 356 U.S. 386, 78 S. Ct. 827, 2 L.Ed.2d 859; United States v. Sawyer, 210 F.2d 169 (3 Cir., 1954); Newman v. United S......
  • United States v. Viviano, 299
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • January 25, 1971
    ......Masciale, 236 F.2d 601, 603 n. 1 (2 Cir. 1956) aff'd, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958) — in addition to its reliance on the evidence of the ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT