United States v. White, 17820.

• Decision Date: 12 February 1968
• Docket Number: No. 17820.,17820.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy WHITE and Lewis Cummings, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

390 F.2d 405 (1968)

UNITED STATES of America, Plaintiff-Appellee, v. Roy WHITE and Lewis Cummings, Defendants-Appellants.

No. 17820.

United States Court of Appeals Sixth Circuit.

February 12, 1968.

Milton R. Henry, Pontiac, Mich., for appellants on brief.

Lawrence Gubow, U. S. Atty., Howard E. O'Leary, Asst. U. S. Atty., Detroit, Mich., for appellee on brief.

Before PHILLIPS, CELEBREZZE and McCREE, Circuit Judges.

McCREE, Circuit Judge.

Both appellants appeal from a conviction of several violations of the narcotics laws. In counts 1, 3, 5, 7, and 9 of the indictment the sale¹ of narcotics, not pursuant to a written order issued in blank for that purpose by the Secretary of the Treasury, was charged on dates extending from September 17, 1965 through March 5, 1966. In counts 2, 4, 6, 8, and 10, the concealment and possession² of a quantity of narcotic drugs was charged on dates corresponding to the times alleged in the counts relating to sale.

Neither appellant disputed the fact of sale or possession but both relied upon the defense of entrapment, testifying that the government informer, one Griffin, had represented that his former partner in several burglaries had cheated him in the distribution of the proceeds of the depredations and that he wished to retaliate and recoup his claimed share by selling him some spurious narcotics. The scheme required the defendants to appear to be dealers in narcotics and to deliver to Griffin's unfaithful partner several parcels purportedly containing narcotic drugs, to receive from him payment and to turn the money over to Griffin who would then compensate appellants. They testified that their initial reluctance to participate was overcome by Griffin's insistence and by their pressing financial needs and that they carried out the scheme only to discover that the purchaser was in fact an agent of the United States Bureau of Narcotics who eventually arrested appellants.

Two errors relating to the defense of entrapment are assigned. The first concerns the alleged error of the District Judge in refusing to give appellants' requested instruction on the issue of entrapment.

Appellants' requested instruction, after correctly stating the law concerning entrapment, concluded with the following paragraph:

I charge you as a matter of law that there are no facts in the instant record of trial from which you may draw the sole inference to support a finding that the defendant Roy White did not need any persuasion to accept the offer of the informer Bruce Griffin; and that moreover you are not permitted to speculate upon this element of the case.

This language would require the jury to find that the defense of entrapment was established as a matter of law and we have held that if the facts are in dispute as to whether the criminal design originated with the accused and that the Government merely afforded opportunities for the commission of the offense, the issue is a factual one to be decided by the jury. United States v. Williams, 319 F.2d 479 (6th Cir. 1963).

In the instant case, the informer testified, contrary to appellants' version, that they offered to supply some narcotics and they did. This clearly presented a jury question and the District Judge properly refused to give the requested instruction. Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958). In any event, the court is under no obligation to adopt the language requested in a proposed instruction where the charge to the jury clearly and correctly states the substance of the law. United States v. DiDonato, 301 F.2d 383 (2nd Cir. 1962), cert. den. 370 U.S. 917, 82 S.Ct. 1557, 8 L.Ed.2d 497 (1962). And the District Judge correctly instructed the jury by employing, except for the addition of the statement "Evidence relating to prior acts of defendants which are not the subject of a conviction are to be considered by you solely in determining the defendants' predisposition, or as I have stated, willingness to commit the crimes here charged," the charge relating to entrapment expressly approved by us in United States v. Thompson, 366 F.2d 167, 175-176 (6th Cir. 1966).

The District Judge's inclusion of the sentence quoted above referred to the testimony of one DiBiasi, a former narcotics agent, who was permitted on rebuttal to testify over objection that he arrested appellant White in September, 1957 for violation of federal narcotic laws. He also...