United States v. Silver
| Citation | 457 F.2d 1217 |
| Decision Date | 28 March 1972 |
| Docket Number | No. 71-1305.,71-1305. |
| Parties | UNITED STATES of America v. Mark W. SILVER, Appellant, Carolyne A. D'Angelo. |
| Court | United States Courts of Appeals. United States Court of Appeals (3rd Circuit) |
Bernard L. Segal, Segal, Appel & Natali, Philadelphia, Pa., for appellant.
Jeffrey M. Miller, Asst. U. S. Atty., Philadelphia, Pa., for appellee.
Before KALODNER, STALEY and ADAMS, Circuit Judges.
The defendant-appellant Mark W. Silver was tried to a jury on an indictment charging him with making sales of narcotics on September 4 and September 16, 1970, in violation of the federal narcotic laws.1 The jury found Silver guilty of making a sale and delivery of narcotics —cocaine—on September 4, 1970. It was, however, unable to agree on a verdict with respect to the charged September 16, 1970 sale.2 Silver was sentenced to serve a 5-year term—the minimum sentence fixed by law. This appeal followed.
The Government, in its case, adduced the testimony of federal narcotic agent Cassidy that he made a $1,300 purchase of cocaine from Silver on September 4, 1970 and a second purchase of $9,000 of cocaine on September 16, 1970. Federal narcotic agent Miller testified that he was present when the two sales were made. The agents testified that they had been introduced to Silver by Government informers, Yaworski and Scourfield, who had earlier informed them that Silver was involved in trafficking in drugs.
Silver testified in his own behalf. He admitted selling cocaine to agent Cassidy on September 4 and 16, 1970, as charged in the indictment. He said he made these sales only because the two informers had importuned him to do so, and had described agents Cassidy and Miller as members of the "Mafia" who would kill them, Silver, his girlfriend co-defendant D'Angelo, his pet goat, rooster, three dogs and three cats, should Silver fail to sell the agents cocaine.
Silver further testified that prior to his September sales to Cassidy he on three or four occasions in June and July 1970 procured cocaine for informers Yaworski and Scourfield for which they had promised to pay but failed to do so.
The defense called as witnesses the informers Yaworski and Scourfield who had been produced in court by the Government. The informers refused to testify, claiming the Fifth Amendment privilege.
In rebuttal, narcotic agent Miller testified that in August 1970—several weeks before the September 4, 1970 sale —Silver had shown him a pouch-like container, attached to his belt, which contained several vials, which Silver said contained narcotics; Silver then told him he had a "connection" and a "source of supply" in San Francisco, California, who would furnish him with large quantities of "marihuana," and that he would fly to San Francisco to arrange for an initial purchase by Miller of between 200 and 250 Kilograms of marihuana. Miller further testified that Silver then had told him he could arrange with one "Chico," "his source, and his partner" for a supply of cocaine.
Silver contends on this appeal that the trial judge prejudically erred (1) in his instructions to the jury on the defense of entrapment; (2) in denying him effective assistance of counsel when he allegedly barred his counsel from conferring with him during recesses in the course of his testimony; and (3) in refusing to disqualify himself in response to Silver's affidavit of prejudice filed January 11, 1971, the day the trial began.
We will confine our review to Silver's contention with respect to the trial judge's instructions on entrapment. We are constrained, however, to note that we deem without merit Silver's second and third contentions.
The single question presented at the trial was whether the defendant had been entrapped into making unlawful sales of cocaine to the federal narcotics agents on September 4, 1970 and September 16, 1970, since he testified that he had made the sales and interposed only the defense of entrapment.
The critical question here presented is whether the trial judge committed reversible error in his charge to the jury on entrapment.
We are of the opinion that the trial judge committed reversible error in his charge to the jury on entrapment because he so intertwined correct instructions with incorrect instructions as to negative the effect of the correct instructions. It is settled that "a conviction ought not to rest on an equivocal direction to the jury on a basic issue."3
Discussion of the trial judge's instructions must be prefaced by this summarization of settled principles applicable to the defense of entrapment:
The fact that law enforcement officials merely afforded opportunity for the commission of criminal conduct does not constitute entrapment; entrapment occurs only when the criminal conduct was the product of the creative activity of law enforcement officials; in determining whether there was entrapment "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal";4 the "predisposition and criminal design" of the defendant are the relevant factors in determining whether the defense has been entrapped and thus the Government may introduce testimony on the score of the disposition of the defendant to commit the crime;5 it is inconsequential whether law enforcement officials did or did not act on well-grounded suspicion that the defendant was engaging in wrongdoing, or whether they had probable cause for approaching the defendant;6 and, when the defense of entrapment is properly raised the burden of proof is on the Government to prove beyond a reasonable doubt that the defendant was not entrapped.7
Coming now to the trial judge's instructions on the entrapment defense issue:
They were given in three series (1) the main charge; (2) in responding to exceptions taken by the defendant to the charge; and (3) in answering the jury's question "can legal entrapment be founded on just suspicion by the agents." The question was sent to the trial judge by the jury during the course of its deliberations.
First as to the instructions on entrapment in the main charge:
In the first part of his charge the trial judge, in substance, albeit rather inartistically, correctly instructed the jury in compliance with the requirements of the settled principles applicable to the defense of entrapment. He specifically instructed the jury that it was the Government's burden to prove beyond a reasonable doubt that the defendant was not entrapped; that "where a person has no previous intent . . . or purpose to violate the law but is induced or persuaded by law enforcement officers or their agents to commit a crime, he is a victim of entrapment and the law as a matter of policy forbids his conviction in such a case"; "on the other hand, where a person already has the readiness and willingness to break the law, the mere fact that the Government Agents provide what appears to be a favorable opportunity is not entrapment"; "if . . . before anything at all occurred respecting the alleged offense involved in this case the defendant was ready and willing to commit crimes such as charged in the indictment whenever opportunity was afforded, and that the Government officers or their agents did no more than offer the opportunity, then the jury should find that the defendant is not a victim of entrapment"; and "on the other hand, if the evidence in the case should leave you with a reasonable doubt whether the defendant had the previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some officer or agent of the Government, then it is your duty to acquit him."8
After the foregoing instructions were given, the trial judge, unhappily, chose to "simplify" them as follows:
When defense counsel took exception to these "simplifying" instructions the trial judge compounded their error when he further instructed the jury as follows:
Several hours after the jury commenced its deliberations it sent the trial judge this question:
"Can legal entrapment be founded on just suspicion by the agents?"
In answering that question, the trial judge re-read to the jury the correct instructions in his main charge. He then repeated his "simpli...
To continue reading
Request your trial
-
U.S. v. Jannotti
...that the defendant was engaging in wrongdoing, or whether they had probable cause for approaching the defendant." United States v. Silver, 457 F.2d 1217, 1220 (3d Cir. 1972) (emphasis in original; footnote omitted). Where the conduct of the investigation itself does not offend due process, ......
-
Siegel v. Time Warner Inc.
... ... Comics, Defendants ... No. CV-04-8776-SGL(RZX) ... No. CV-04-8000-SGL (RZx) ... United States District Court, C.D. California ... July 27, 2007 ... Page 1112 ... COPYRIGHT ... ...
-
Ward v. National Geographic Soc.
... ... The NATIONAL GEOGRAPHIC SOCIETY, et al., Defendants ... No. 99 CIV. 12385(LAK) ... United States District Court, S.D. New York ... July 13, 2002 ... Page 430 ... ...
-
Marvel Worldwide Inc. v. Kirby
... ... No. 10 Civ. 141(CM)(KNF). United States District Court, S.D. New York. July 28, 2011 ... [777 F.Supp.2d 724] David ... ...