United States v. Perry

• Decision Date: 18 May 1973
• Docket Number: No. 72-1363.,72-1363.
• Citation: 478 F.2d 1276
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ernest PERRY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

478 F.2d 1276 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Ernest PERRY, Defendant-Appellant.

No. 72-1363.

United States Court of Appeals, Seventh Circuit.

Argued December 7, 1972.

Decided May 18, 1973.

Donald L. Jackson, Indianapolis, Ind., for defendant-appellant.

Stanley B. Miller, U. S. Atty., William F. Thompson, Asst. U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before KNOCH, Senior Circuit Judge and KILEY and CUMMINGS, Circuit Judges.

KNOCH, Senior Circuit Judge.

The defendant-appellant, Ernest Perry, has taken this appeal from his conviction in a jury trial on a charge of selling a narcotic drug in violation of Title 26 U.S.C. § 4705(a). He was sentenced to serve a term of 12 years.

The actual sale was described in the testimony of a government informant who said he had known the defendant for about 15 years. Although he testified that he was now feeling well, being no longer addicted to drugs, he admitted to having been a user of narcotics for 8 to 10 years and also a seller of narcotics which he bought from defendant and others.

He testified that early in May 1969, he met William McCurdy who, he later learned, was an agent for the Bureau of Narcotics and Dangerous Drugs, with whom he arranged to purchase narcotics on May 9, 1969.

In the evening of that day, he said he drove to 30th and College Streets in Indianapolis, in a pink 1960 Mercury, and met Agent McCurdy who gave him $300 to buy narcotics, after which he drove, with Agent McCurdy following in another automobile to a point on Evergreen Street close to its interstction with Fall Creek Parkway, where Agent McCurdy parked on signal of the informant. The informant then drove on down Fall Creek Parkway.

Up to this point, William B. McCurdy, who was employed by the United States Bureau of Narcotics at the time in question, was able to corroborate the informant's testimony. He described the informant's automobile as "beige."

The informant said he entered the driveway of defendant's home on Fall Creek Parkway and at his knock was admitted by the defendant himself. He said he had had no drugs on his person at that time, that he had had a "fix" within six hours and was experiencing none of the sickness attendant on failure to secure his accustomed dose of narcotics.

Captain Richard A. Jones, of the Indianapolis Police Department's narcotics section, testified that he had known the defendant for about 10 to 12 years, that he was maintaining surveillance on defendant's house with binoculars and saw the informant, whom he also knew, approaching in a beige 1960 Mercury. He gave the license plate number. He saw the informant admitted to the house by the defendant.

Special Agent Paul J. Markonni, of the United States Secret Service, who was employed by the United States Bureau of Narcotics at the time, followed Agent McCurdy and was able to corroborate the prior testimony about the meeting and was later present near defendant's house to observe the informant's entry.

The informant testified further that for $150 he bought cocaine from defendant who got it from a jar on the second floor of the house and put it into a tinfoil packet. He said the transaction took about 15 minutes and he returned to Agent McCurdy to whom he gave the cocaine, after taking out 1/25th of the quantity, which he subsequently used.

Captain Jones saw the informant leaving the house and saw the defendant in the doorway shutting the door. He watched the informant drive away in his car down Fall Creek Parkway.

Agent McCurdy testified that the informant came back to him in about 15 or 20 minutes after they had parted and delivered an aluminum foil package containing white powder. Agent Markonni observed that meeting.

All of the agents referred to a woman companion of the informant who remained in his automobile the whole time. She also testified to the same effect, indicating that she had shared in the portion of the cocaine retained by the informant and that it was cocaine.

The defense introduced evidence of the tall evergreens near the doorway of the defendant's residence and two of defendant's employees testified, one that he was not at home at the time of the alleged sale and the other that he was in his place of business all that evening.

On the testimony briefly summarized above, we find no basis for submitting the issue of entrapment to the jury. The defense makes much of the fact that the informant was himself an addict, that it was several hours since his last use of drugs, with the inference that his possible suffering of withdrawal symptoms may have moved defendant by pity to commit an offense for which he was not apt and willing.

Mere solicitation is not enough to show entrapment. United States v. DeVore, 4 Cir., 1970, 423 F.2d 1069. 1071, cert. den. 402 U.S. 950, 91 S.Ct. 1604, 29 L.Ed.2d 119; Kadis v. United States, 1 Cir., 1967, 373 F.2d 370, 374; Lopez v. United States, 1963, 373 U.S. 427, 436, 88 S.Ct. 1381, 10 L.Ed.2d 462; United States v. Markham, 7 Cir., 1951, 191 F.2d 936, 938, cited with approval in United States v. Smith, 7 Cir., 1972, 467 F.2d 1126; United States v. Perkins, 7 Cir., 1951, 190 F.2d 49. In DeVore (423 F.2d p. 1072) and Lopez (373 U.S. p. 436, 88 S.Ct. 1381) solicitation was held to be insufficient to require an instruction on entrapment.

There was evidence which, if credited by the jury, would negative any undue appeals to defendant's sympathy. The informant said he was in no distress and he was in the defendant's house for a very short period of time. The drug was already in the defendant's possession in quantity. He did not go elsewhere to procure it especially for the informant.

There was nothing to show that government agents implanted the disposition to commit this offense in the mind of an innocent defendant as required to establish entrapment. United States v. Haden, 7 Cir., 1968, 397 F.2d 460, 466, cert den. 396 U.S. 1027, 90 S.Ct. 574, 24 L.Ed.2d 523, cited with approval in United States v. Pingleton, 7 Cir., 1972, 458 F.2d 722, 724. This was a far cry from the circumstances in United States v. McGrath, 7 Cir., 1972, 468 F.2d 1027, 1030, where law enforcement officers manufactured and delivered the counterfeit bills for possession of which the recipient was arrested.

However, early in the course of the trial the possibility that defendant might argue entrapment on the ground that the sale was made to an informant who was himself a drug addict was discussed out of the presence of the jury, and, although there were some contradictory statements, it is apparent that defense counsel's final decision was that while defendant would not testify, or offer witnesses to state, that he had made the sale but only because he was improperly induced to do so, counsel would argue such inferences of entrapment as might be drawn from the government's evidence and would invite the jury's attention to them. The District Judge, of course, had at that time no way of knowing what might be disclosed by the testimony.

Accordingly the Court allowed the government to show predisposition on the part of defendant to commit this offense and reasonable grounds for the police officers' having entertained a belief in defendant's predisposition to the extent of offering the defendant an opportunity to commit the offense if he were willing to do so.

As it happened, the evidence was such as not to require jury determination of the issue of entrapment. The Trial Judge, however, did instruct the jury on that point and cautioned the jurors that evidence of prior unlawful conduct could be considered only when, and if, the jury had already found, beyond a reasonable doubt, from other evidence standing alone that the defendant did the act charged in the indictment, and then only to determine his state of mind to ascertain whether he had been unlawfully entrapped or whether he had a predisposition unlawfully to traffic in narcotics and knowingly and willfully did the act. For a recent pronouncement of this Court on entrapment see United States v. Cardi, 7 Cir., 1973, 478 F.2d 1362, pp. 1367.

To a considerable degree the same evidence was used to prove both aspects of predisposition and reasonable grounds. On the issue of predisposition, any pertinent fact, whether known to the authorities at the time of the offense or discovered later would be relevant. To prove reasonable grounds, however, only facts known to the authorities or beliefs held prior to the commission of the offense would be relevant.

Defendant contends that the prosecution's failure, tacitly permitted by the Trial Court, to distinguish between evidence offered for one or the other purpose worked a hardship on him because the jury might have assumed, for example, that mere hearsay of defendant's having trafficked in drugs was sufficient to prove his actual predisposition. Thus the defendant argues that the two types of evidence must be carefully...