Before DUFFY, LINDLEY and SWAIM, Circuit Judges.
Defendants were prosecuted under an indictment containing four counts. In Count 1 each defendant was charged with unlawfully and willfully selling 8 capsules of heroin to Charles E. Sullivan, in violation of Sec. 2554(a), Title 26 U.S.C. Count 2 charged defendant Perkins with knowingly, willfully and unlawfully purchasing 8 capsules of heroin, in violation of Sec. 2553(a), Title 26 U.S.C. Count 3 charged defendant Perkins with fraudulently and knowingly receiving, concealing, buying and facilitating the transportation and concealment after importation of 8 capsules of heroin, knowing same to be imported into the United States in violation of Sec. 174, Title 21, U.S.C. Count 4 charged both defendants with conspiracy to commit offenses against the United States.
Defendants waived trial by jury.The court found defendant Perkins guilty on all four counts and defendant Riley guilty on Counts 1 and 4. Riley's sentence on Count 4, and Perkins' sentence on Counts 2, 3 and 4 were each made concurrent with the sentence which each defendant received on Count 1.
Defendant Riley admits that at the time and place charged he handed to Sullivan the 8 capsules of heroin described in the indictment, but urges entrapment as a defense. Defendant Perkins also urges entrapment, and in addition alleges insufficiency of the evidence against him and that the court erred in its rulings on evidence.
Considering first the defense of entrapment, Charles E. Sullivan and defendant Riley became acquainted when inmates at the House of Correction in Chicago; both had been narcotic addicts. Sullivan was released from confinement several weeks earlier than Riley, and came into contact with Treasury Enforcement Agent Perry, agreeing to become an informer.
The day after Riley was released from the House of Correction, Agent Perry gave Sullivan a $5 bill and five $1 bills to make a "buy." Sullivan had no other money on his person. Sullivan went to Jimmie's Palm Tavern in the city of Chicago and accidentally encountered Riley. Sullivan asked Riley if he knew a girl named Ora. Riley said he did but did not know where she could be located. Sullivan then asked Riley if he could "find any stuff" (referring to narcotics). Riley asked, "You back on it?" Sullivan answered that he was and that he wanted it for himself. A discussion followed as to price, and Riley informed Sullivan that if he had $15 he could get it for him at 75 a capsule. Sullivan told him he only had $10. Riley then said that he would see what he could do for him, and Sullivan and Riley walked across the street and met the defendant, Perkins, leaving the Morocco Hotel. Riley asked Sullivan to step aside and he then engaged in a conversation with Perkins, out of Sullivan's earshot. Perkins then stepped into a nearby drugstore, purchased some whiskey, and a case of Coca-Colas, and he and Riley started toward his parked Packard automobile. As Sullivan started to walk toward the automobile, he overheard Perkins say to Riley that he (Sullivan) could not go along in the automobile because "he will put the heat on me." Sullivan then handed the $10 in currency to Riley, and Perkins, Riley and a third party, whose first name was Lucius, left in Perkins' car. Riley testified that Perkins took the whiskey and Coca-Colas into a place whose address is on Drexel Boulevard and that about half an hour later he returned to the automobile where Riley and Lucius were waiting for him, and they then returned to the Morocco Hotel, in front of which Sullivan had been standing awaiting their return. When Sullivan saw Riley, the latter nodded his head and Sullivan went to the parking lot where Perkins, Riley and Lucius left the automobile.Riley handed to Sullivan the 8 capsules of heroin enclosed in a small envelope. At that time defendant Perkins had gone into a restaurant. Agent Perry and several other Treasury agents who were nearby arrested Riley. Sullivan promptly turned over the package of heroin to Agent Perry. Defendant Perkins returned to his automobile where he likewise was arrested. He granted permission to the agents to search his automobile, and in the glove compartment they found a dozen envelopes identical in size, shape and appearance to the envelope which contained the heroin which Riley passed to Sullivan. When arrested, Perkins had a considerable amount of cash on his person, including a $5 bill and five $1 bills whose serial numbers coincided with the bills which Agent Perry had first given to Sullivan, and which Sullivan turned over to Riley.
In urging the defense of entrapment defendants say that the government did not have any reason to suspect that either defendant was engaged in selling narcotics and that it was the government informer who put the idea of committing the crime into Riley's mind. They insist that Sullivan induced Riley to make a sale of heroin, an act which he would not otherwise have done.
Defendants cite Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413, which is the first decision of the Supreme Court in which a reversal was based on entrapment, but the decision there actually turned on the error of the trial court in refusing to submit that issue to the jury. United States v. Cerone, 7 Cir., 150 F.2d 382, 384-385, certiorari denied 326 U.S. 756, 66 S. Ct. 98, 90 L. Ed. 454. The cases of Butts v. United States, 8 Cir., 273 F. 35, 18 A.L.R. 143, and Di Salvo v. United States, 8 Cir., 2 F.2d 222, also relied on by defendants herein fall within the pattern of the Sorrells case. In the case at bar the trial was to the court. It follows that cases turning on the failure of the court to submit the question of entrapment to the jury are not in point. We cannot reverse on the assumption the trial court did not consider whether defendants were entrapped, a defense which was vigorously urged at the trial. We must assume that the learned trial judge, with a record of wide trial experience, found that entrapment did not occur. We must decide, however, whether the evidence discloses the court erred in reaching such a conclusion.
Our courts have found it difficult to state an all-embracing rule which will define the course of conduct or provocation by government officers constituting entrapment. United States v. Chiarella, 2 Cir., 184 F.2d 903, 908. Warning has also been given that general language used in decisions dealing with entrapment should be viewed in the light of the facts to which it was applied. Zucker v. United States, 3 Cir., 288 F. 12, 16.
Most opinions involving the question of entrapment quote from Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413. The court there quoted, apparently with approval, from Newman v. United States, 4 Cir., 299 F. 128, 131: "It is well settled that decoys may be used to entrap criminals, and to present opportunity to one intending or willing to commit crime. But decoys are not permissible to ensnare the innocent and law-abiding into the commission of crime. When the criminal design originates, not with the accused, but is conceived in the mind of the government officers, and the accused is by persuasion, deceitful representation, or inducement lured into the commission of a criminal act, the government is estopped by sound public policy from prosecution therefor."
The separate opinion by Justice Roberts in the Sorrells case states, 287 U.S. at page 454, 53 S. Ct. at page 217: "* * * Entrapment is the conception and planning of an offense by an officer, and his procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion, or fraud of the officer. * * *"
In Goldstein v. United States, 7 Cir., 256 F. 813, 815, this court said: "* * * something more than the mere use of decoys or detectives by the government is necessary to raise an issue of estoppel. * * * There must be deception of such a character as to make it unconscionable for the government to press its case."
With more particular application to the facts in the case at bar, the following quotations from opinions of this court indicate the course we should follow. In Conway v. United States, 7 Cir., 1 F.2d 274, 276, we said: "* * * The details to which they themselves testified manifested such a familiarity with criminality and willingness to enter upon it, as would take this out of the ...