United States v. Pappagoda

• Decision Date: 23 February 1923
• Docket Number: 2552.
• Citation: 288 F. 214
• Parties: UNITED STATES v. PAPPAGODA.
• Court: U.S. District Court — District of Connecticut

288 F. 214

UNITED STATES v. PAPPAGODA.

No. 2552.

United States District Court, D. Connecticut.

February 23, 1923

George H. Cohen, Asst. U.S. Atty., of Hartford, Conn.

Arthur B. O'Keefe, of New Haven, Conn., for defendant.

THOMAS District Judge.

The accused has been indicted by the grand jury and is charged in two counts with violating sections 2 and 8, pp. 785, 786, 789, of 38 Stat. at Large (Comp. St. Secs. 6287h, 6287n) which is commonly known as the Harrison Act. The first count charges possession of a certain quantity of opium, morphine and cocaine, and the second count charges a sale to one Joseph Gaines of New Haven.

To this indictment the accused has filed a plea in abatement and a motion to quash the indictment, in which he alleges as follows:

'(1) That during the hearing before the grand jury, while it was deliberating and considering the indictment, and before the same was ultimately found against this defendant, there appeared several witnesses whose testimony against this defendant was the result of a conspiracy inspired and instigated by officers of the law against this defendant, to persuade and cause him to violate the law, and which witnesses by their illegal testimony induced the said grand jury to find said true bill, and said witnesses were mainly instrumental in inducing said grand jury to find said true bill against this defendant, and returned said true bill against him.

'(2) That the indictment herein has no legal foundation to support it and that the same is wholly or largely founded upon illegal and incompetent evidence given before said grand jury, and upon evidence the admission of which before said grand jury was prohibited by law, and said indictment is without any legal evidence warranting the finding thereof against this defendant, and said grand jury, in finding said indictment, was governed and controlled wholly or in part by such alleged illegal, unlawful, and prohibited evidence, and said indictment is founded upon illegal and incompetent evidence.'

It will thus be noted that the accused bases his right to relief on the ground of entrapment. The facts surrounding the transaction which led to the arrest and indictment have been stipulated as follows.

'On May 23, 1922, at about 12 o'clock noon, Officers Cole, Reynolds, and McLaughlin arrested one Joseph Gaines for begging at Ashman street between Henry and Admiral streets, New Haven, Conn. They took him to Grand Avenue police station, and after questioning Gaines he admitted that he was a drug addict and that he knew where he could buy narcotics. The officers then marked a $1 bill and took dates on four dimes and two nickles. Gaines took this money, at the request of the officers, and walked down to Franklin and Green streets, where he was met by Pappagoda. The latter walked up Green street to Hamilton street, with Gaines following him. After a few moments he disappeared for a short time, but presently was seen to join Gaines again. The officers observed Pappagoda hand something to Gaines. Pappagoda then left Gaines and entered the rear of 110 Green street, which is on the Hamilton street side, closely followed by Officers Reynolds and Cole. As Pappagoda was going up the steps leading to the house, he was seized by Officer Reynolds, and at the same time he dropped a $1 bill, the dropping of which was observed by Officers Reynolds and Cole. The bill that Pappagoda dropped later proved to be the bill marked by the officers in the station house and used by Gaines.

'Gaines, who was also apprehended, gave the officers a paper containing morphine and one containing cocaine that he claimed he purchased from Pappagoda at Green and Hamilton streets, and for which he gave Pappagoda the $1 bill, four dimes, and two nickels that had been marked in the station house.'

The procedure which the accused followed is unusual and unique, and no precedent has been presented upon which, at this time, such a motion can be granted or such a plea be sustained. The proper procedure, as suggested by all the cases, where the defense of entrapment is interposed, is for the accused to request the court to charge the jury with respect to the law governing entrapment. In the absence of such a request to charge the jury, or even the failure of the court to so charge, error may then be predicated upon such refusal or failure, of which error the accused may take full advantage before the appellate court.

The motion might properly be denied, and the plea dismissed at this time; but the question comes up so frequently in this district that I deem it advisable to dispose of the questions here raised in order that there may be a clear understanding respecting the law regarding the defense here interposed, since the question has been presented upon the stipulation. It seems to me that there is nothing upon which the defense can defeat the prosecution upon the theory of entrapment. It is true that the accused was entrapped by the action of the government agents in inducing Gaines to purchase narcotics from the accused; but this does not necessarily indicate that the government officers lured the defendant, or incited or induced him to do what he would not have done, in the absence of the actions of the government agents. The important element lacking in this case, as distinguished from all cases cited and relied upon, is that it does not appear that the defendant would not have sold and was not selling to any one whom he knew who applied for narcotics with the ability to pay. Still more significant is the fact that the actions of the government agents in no way accounted for the fact that the defendant had the drugs in his possession.

An analysis of the cases cited and relied upon will sustain the conclusions already expressed. The defendant cites Woo Wai v. United States, 223 F. 412, 137 C.C.A. 604; but there is no analogy between that case and the one under consideration. In the Woo Wai Case there was no evidence or indication that, prior to the approach of the government agent, that any of the defendants had ever been engaged in any unlawful importation of Chinese. The reason for remanding the case for a new trial was because the court found that the purpose was not to punish men suspected of crime, but to force from Woo Wai disclosures of facts concerning unlawful acts of others. The court differentiated that class of cases in which the criminal intent had its origin in the mind of the accused and those where the thought originated in the minds of the agents. On page 415 of 223 F. (137 C.C.A. 607) Judge Gilbert said:

'But it is to be said, by way of distinguishing such cases from the case at bar, that in all of those cases the criminal intention to commit the offense had its origin in the mind of the defendant.'

In Butts v. United States, 273 F. 35, on page 38 (18 A.L.R. 143), which is strenuously urged by the accused in support of his contention, Judge Sanborn, speaking for the Circuit Court of Appeals for the Eighth Circuit, said:

'But when the accused has never committed such an offense as that charged against him prior to the time when he is charged with the offense prosecuted, and never conceived any intention of committing the offense prosecuted, or any such offense, and had not the means to do so, the fact that the officers of the government incited and by persuasion and representation lured him to commit the offense charged, in order to entrap, arrest, and prosecute him therefor, is and ought to be fatal to the prosecution, and to entitle the accused to a verdict of not guilty. Peterson v. United States, 255 F. 433, 166 C.C.A. 509; United States v. Echols (D.C.) 253 F. 862; Sam Yick v. United States, 240 F. 60, 65, 67, 153 C.C.A. 96; Voves v. United States, 249 F. 191, 192, 161 C.C.A. 227; Peoples v. McCord, 76 Mich. 200, 42 N.W. 1106, 1108; Woo Wai et al. v. United States, 223 F. 412, 414, 137 C.C.A. 604.'

In this case the verdict of guilty was reversed, because, as appears on page 36 of 273 F. (18 A.L.R. 143), the trial court--

'denied a request of counsel for the defendant to instruct the jury that the defendant claimed that he was entrapped into delivering to Rudolph the morphine in question by the instigation of the government agents; that, had it not been for the importunities and false statements made by Rudolph pursuant to the directions of the government agents, who started out admittedly for the purpose of entrapping the defendant into the commission of the offense charged against him, he would not have conceived or committed it; and that if the jury believed from the evidence that the defendant was induced by the importunities of Rudolph, acting under the orders and in conjunction with the government agents, to violate the law, and that through the instigation of these men the defendant was induced to sell or deliver to Rudolph the morphine, and that he would not otherwise have violated the law, they ought to return a verdict of not guilty.'

And on page 37 of 273 F. (18 A.L.R. 143), the learned court said:

'It is not denied that, in cases where the criminal intent originates in the mind of the defendant, the fact that the officers of the government used decoys or truthful statements to furnish opportunity for or to aid the accused in the commission of a crime, in order successfully to prosecute him therefor, constitutes no defense to such a prosecution. Price v. United States, 165 U.S. 311, 315, 17 Sup.Ct. 366, 41 L.Ed. 727; Grimm v. United States, 156 U.S. 604, 610, 15 Sup.Ct. 470, 39 L.Ed. 550; Goode v. United States, 159 U.S. 663, 669, 16 Sup.Ct. 136, 40 L.Ed. 297; Andrews v. United States, 162 U.S. 420, 423, 16 Sup.Ct. 798, 40 L.Ed. 1023; Fiunkin v. United States (C.C.A.) 265 F. 1.'

The ruling in this case seems...