United States v. Siegel

• Decision Date: 01 December 1926
• Citation: 16 F.2d 134
• Parties: UNITED STATES v. SIEGEL.
• Court: U.S. District Court — District of Minnesota

16 F.2d 134 (1926)

UNITED STATES v. SIEGEL.

District Court, D. Minnesota, Fourth Division.

December 1, 1926.

William A. Anderson, Asst. U. S. Atty., of Minneapolis, Minn.

Ernest S. Cary, of Minneapolis, Minn., for defendant.

JOHN B. SANBORN, District Judge.

Bennie Siegel was tried and convicted of a violation of the Harrison Anti-Narcotic Act (Comp. St. §§ 6287g-6287q) in October, 1926. The evidence of the government showed that on the 10th day of April, 1926, he sold to an addict by the name of Lang an ounce of morphine, and received $55; that Lang received the $55 from government officers of the Narcotic Department; that two of them accompanied him to the pool room where the purchase was made; that two others saw Siegel come out of this place and approach a man by the name of Kurtz, from whom he apparently procured the can of morphine. The government's testimony indicated no persuasion or inducement of Siegel to make this sale, and, from all that appears in the government's case, it was the ordinary sale of morphine by a peddler to an addict.

When the government rested, the defendant for the first time made any suggestion that he claimed to have been entrapped. His counsel moved for a directed verdict on that ground, and said:

"At this time, if the court please, the defendant moves for a directed verdict, on the ground that the government has wholly failed to prove that the defendant was a dealer within the law; second, that the government has wholly failed to prove that there was any suspicion or right of suspicion on the part of the agents when they had the arrangement with the witness Lang to purchase narcotics from the defendant Siegel, and, further, on the ground that the evidence before the court clearly shows an entrapment."

The court denied the motion for a directed verdict. The defendant rested. The government then asked permission to reopen its case "for the purpose of introducing testimony relative to the question raised by the defendant of entrapment." Permission was granted over the defendant's objection. The government officers were then permitted to testify, over the defendant's objection, as to statements made by other addicts, prior to the time when the offense was committed, as to having purchased drugs from Siegel, and as to a previous attempt made by the officers to get evidence of a sale by Siegel.

After this evidence was in, the defendant requested the court to delay the trial until he could procure the addicts referred to by the government agents, who were then in the penitentiary at Leavenworth, Kan., so that he might examine them as to their having made such statements to the officers. The court refused to strike out the testimony and refused to delay the trial. Siegel then went upon the stand, claimed that on the 10th day of April Lang told him that he was "awful sick" and wanted morphine; that he (Siegel) told him that he was not in the business, but that, if he happened to run into anybody who was selling it, he would send him to Lang; that he accidently ran into Harry Kurtz; that Kurtz told him that he might be able to get it for him; that he (Siegel) then got $55 from Lang, went out and gave it to Kurtz; and that Kurtz was to deliver the can of morphine to Lang in an alley behind the building next door to the pool hall.

The defendant now claims that the evidence given by the agents as the foundation for their belief or suspicion that Siegel was selling drugs was inadmissible, and that its admission constituted error. This presents an interesting and a very doubtful question. The evidence was, of course, incompetent as proof of the guilt of the defendant. With reference to this evidence, the court charged the jury as follows:

"The government has introduced evidence tending to prove that before April 10, 1926, information had come to the officers of the Narcotic Department that Siegel had sold narcotics. That evidence cannot be considered by you, except in one connection, and that is whether these officers on April 10th were acting in good faith, in an honest attempt to capture a man whom they had good grounds to believe was violating the law. That evidence is not proof that Siegel had before sold morphine, or that he was ever engaged in the business. It tends to prove merely the good faith of the government agents."

The question, then, is whether the government, in order to negative the charge of entrapment, may introduce the testimony of its officers as to the foundation for their belief or suspicion that the defendant was engaged in the business of violating the law by selling narcotics.

Counsel for the defendant, in his motion for a directed verdict, relied largely on the case of Butts v. United States, 273 F. 35, 18 A. L. R. 143, decided by the Circuit Court of Appeals of the Eighth Circuit. There the question involved was whether the trial court erred in not submitting the question of entrapment to the jury. The court in its decision said that the evidence in that case conclusively proved that the defendant was not, and never had been, engaged in dealing in morphine, and that the intention to do the acts which the defendant did originated in the minds of the officers. It then 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 ...