United States v. Pugliese

• Decision Date: 08 June 1965
• Docket Number: No. 327,Docket 27600.,327
• Citation: 346 F.2d 861
• Parties: UNITED STATES of America, Appellee, v. Louis PUGLIESE, a/k/a "Feety," Appellant,
• Court: U.S. Court of Appeals — Second Circuit

346 F.2d 861 (1965)

UNITED STATES of America, Appellee, v. Louis PUGLIESE, a/k/a "Feety," Appellant,

No. 327, Docket 27600.

United States Court of Appeals Second Circuit.

Argued February 16, 1965.

Decided June 8, 1965.

Robert J. McGuire, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., John S. Martin, Jr., Asst. U. S. Atty.), for appellee.

Henry K. Chapman, New York City, for appellant.

Before WATERMAN, FRIENDLY and HAYS, Circuit Judges.

WATERMAN, Circuit Judge:

Defendant was indicted on two counts of violating the Narcotic Drugs Import and Export Act, 21 U.S.C. §§ 173, 174. Count one charged him, in brief, with having wilfully received, concealed, and sold a quantity of unlawfully imported heroin on July 13, 1961. Count two charged him with having committed the same offense on July 21, 1961. After a two-day trial before the late Judge Noonan and a jury in the United States District Court for the Southern District of New York, defendant was acquitted on the first count and convicted on the second. He received the mandatory minimum sentence of five years in prison.

The principal witness against defendant was Angel Louis Gonzales, an undercover agent for the Federal Bureau of Narcotics. Gonzales testified that he was introduced to defendant by Freddie Cooper, a narcotics informer, in Cooper's apartment on July 13, 1961. At that time defendant asked Gonzales if he wanted to buy an ounce of heroin, and Gonzales said that he did. After the usual haggling, Gonzales purchased a bag of the drug from defendant for $550. Before he departed Gonzales asked defendant for his telephone number so that he might negotiate future purchases. On July 21, 1961, Gonzales called defendant to say that he wanted another ounce of heroin. Defendant agreed to sell him the drugs and made arrangements for a contact. The two men met in a park near defendant's home and, as before, exchanged an envelope containing narcotics for $550.

Defendant, testifying in his own behalf, described the background of the transactions in such a way as to bolster his defense of entrapment, but did not contradict Gonzales in any important respect. Defendant testified that he was a drug addict who had been initiated into the use of heroin by Freddie Cooper, the narcotics informer who introduced him to Gonzales, and that on July 13, 1961, when the introduction took place, he was looking for a loan so that he might feed his habit. Cooper offered him money if defendant would make a sale of heroin to an acquaintance of Cooper. Defendant at first refused, but when he was unable to borrow money from others, he returned and agreed to Cooper's offer. Cooper instructed defendant on how to deal with the purchaser and gave him the bag of heroin which he was supposed to sell. After the transaction with Gonzales, defendant turned the $550 over to Cooper, and Cooper paid him off in drugs.

Defendant further testified that during the following week Cooper continued to supply him with doses of narcotics, but on July 21, 1961 Cooper withheld the drugs and told defendant to go home to await a telephone call from Gonzales. After receiving the call, defendant returned to the informer's apartment, where he obtained further instructions and an envelope of heroin with which to make the sale, and, when the transaction with Gonzales was completed, defendant delivered the $550 to Cooper, who gave him drugs in return. Defendant's testimony was neither corroborated nor contradicted, Cooper having died before the trial.

Defendant appeals his conviction on the ground that the evidence, taken in the light most favorable to the government, established entrapment as a matter of law, and therefore the trial judge should have directed an acquittal on both counts of the indictment. Defendant also claims that the trial judge made several reversible errors in his charge to the jury. Because none of these points were raised in timely fashion at the trial, we shall notice them only if they demonstrate "plain errors or defects affecting substantial rights." Fed. R.Crim.P. 52(b).

According to the often-cited discussion by Judge Learned Hand in United States v. Sherman, 200 F.2d 880, 882 (2 Cir. 1952), the defense of entrapment raises two questions of fact: "(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." The trial judge charged the jury that it must determine these two issues.

We need not decide whether defendant's testimony, if true, warranted a directed verdict in his favor. The jury was entitled to disbelieve defendant's version of the facts and to rely only on the evidence presented by the government. See Masciale v. United States, 356 U.S. 386, 388, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958). Moreover, the jury could rationally conclude, on the basis of Gonzales' testimony, that defendant was predisposed to sell narcotics, within the meaning of Judge Hand's question (2). See United States v. Orza, 320 F.2d 574 (2 Cir. 1963). Therefore, we hold that the evidence did not establish entrapment as a matter of law.

On the other hand, we hold that the trial judge committed plain error in charging the jury on Judge Hand's question (1). The trial judge stated:

"Now on the first question, that is, the inducement, the defendant has the burden of proof. That is, the defendant must sustain the burden of proving that the government agents induced him to commit the crimes charged.

"On the second question, that is, the defendant\'s willingness or predisposition, the government has the burden of proof."

This charge was in line with the discussion by Judge Hand in United States v. Sherman, supra, at 882-883.

No legal authority has imposed a heavier burden on a defendant for any aspect of the entrapment issue than proof by a preponderance of the evidence. See Gorin v. United States, 313 F.2d 641, 654 (1 Cir.), cert. denied, 374 U.S. 829, 83 S.Ct. 1870, 10 L.Ed.2d 1052 (1963); Model Penal Code § 2.13(2) (Prop. Offic. Draft 1962). We would not increase this burden on the defendant (if indeed he should bear any burden of proof whatever, a question we do not now reach). However, as the trial judge never expressly delineated defendant's "burden of proof," the jury might well have thought that he meant proof beyond a reasonable doubt. As in Gorin v. United States, supra, 313 F.2d at 654:

"The only burden of proof mentioned anywhere in the charge was the burden on the government to prove the essential elements of its case beyond a reasonable doubt. But from this we cannot assume, as the government argues, that the jury would apply this standard only to the government\'s case and never to the defendants\'. On the contrary we think that since proof beyond a reasonable doubt was the only standard mentioned, the jury would naturally infer in the absence of instruction otherwise that when `burden of proof\' was mentioned that was the standard they were to apply, not only to the government but also to the defendants."

This error by the trial judge would have been less prejudicial if the jury had understood the instructions to mean that defendant's only burden was that of showing that the government initiated the crime of which he was convicted. Gonzales admitted to having set in motion the...