Before DUFFY, Chief Judge, and MAJOR and HASTINGS, Circuit Judges.
Kenneth Landry, appellant, and Cameron E. Judkins were jointly charged in an eight-count indictment with as many violations of the Narcotic Control Act. Four separate quantities of narcotic drugs are involved. Counts 1, 2 and 3 relate to 14 1/2 grains of heroin hydrochloride. Count 1 alleges its purchase in violation of Sec. 4704(a) of the Internal Revenue Code of 1954 (Title 26 U.S.C.A. Sec. 4704(a)), as amended by the Narcotic Control Act of 1956. Count 2 alleges the sale of the same narcotic to Senn Moses for the sum of $15.00, in violation of Sec. 4705(a). Count 3 alleges the receipt, concealment, purchase, sale and facilitating the transportation of the same narcotic, in violation of Sec. 174 (Title 21 U.S.C.A. Sec. 174), as amended by the Narcotic Control Act of 1956.Counts 4, 5 and 6 allege the same violations as counts 1, 2 and 3, except that they refer to a different transaction. Count 7 alleges that defendants purchased 16 1/2 grains of heroin hydrochloride, and count 8, that defendants received, concealed, purchased and facilitated the transportation of the same narcotic.
Judkins pled guilty and is not involved on this appeal. The charge against Landry was tried by a jury which returned a verdict of not guilty on counts, 2 and 5, which alleged sales, and guilty as alleged in counts 1, 3, 4, 6, 7 and 8. The Court sentenced Landry to imprisonment for a period of eight years on each of counts 3, 6 and 8, and for a period of two years on each of counts 1, 4 and 7, to be served concurrently. From this judgment Landry appeals.
The grounds urged here for reversal are not the same as to all counts. As to counts 1, 3, 4 and 6, Landry invoked the defense of entrapment. On this phase of the appeal, it is argued that the Court refused the admission of proper evidence offered on behalf of Landry and erroneously instructed the jury. It is urged us to these counts that this Court should sustain the defense of entrapment as a matter of law or, in the alternative, grant a new trial because of the asserted prejudicial errors. The defense of entrapment is not involved as to counts 7 and 8. Admittedly, the government's case on these counts rests entirely upon its asserted proof of possession by Landry of the described narcotics. Landry contends that the proof was insufficient for this purpose and that the Court erred in its failure to direct a verdict.
We shall first consider the defense of entrapment, concerning which many cases are called to our attention by the parties. Most of these cases lose their importance in view of two recent decisions of the Supreme Court, both decided May 19, 1958. Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848, and Masciale v. United States, 356 U.S. 386, 78 S. Ct. 827, 2 L. Ed. 2d 859. In the former case, the Court cites and discusses not only its previous decisions but those of other courts. It reversed the Court of Appeals for the Second Circuit which had affirmed a narcotic conviction, and held as a matter of law that entrapment had been established. In the Masciale case, the Court held that the issue of entrapment had been properly submitted to the jury and affirmed a conviction. That the issue engenders confusion both in its substantive and procedural aspects is evidenced from the opinions of the Supreme Court in these two recent cases where the Court in each was divided five to four. In the Sherman case, the minority concurred in the view that entrapment had been shown as a matter of law, but upon reasoning and logic essentially different from that of the majority. In the Masciale case, the minority dissented upon the basis that the issue of entrapment should not be submitted to a jury but should be decided by the trial judge.
The issue of entrapment was raised and was recognized by the trial Court in its submission of the issue to the jury. We are not convinced that entrapment was shown as a matter of law, although the testimony of Landry standing alone would require such a holding. On the other hand, the testimony of informer Moses, the government's chief witness, approaches but falls short, so we think, of the facts in the Sherman case upon which the Supreme Court sustained entrapment as a matter of law. Considering all the testimony, as we must, we think a jury issue was presented. At the same time, we think the nature of the proof was such as to require that the issue be adequately and correctly submitted to the jury.
Prior to a consideration of the instructions of which defendant complains, it appears appropriate to relate a brief resume of the testimony of informer Moses for the government and that of Landry in his own behalf. Moses, a Clicago police officer, was interested in locating Billy Thurmond (sometimes called Nick), to whom he had given $15.00 for the purpose of purchasing narcotics. Nick failed to deliver as promised and Moses placed numerous telephone calls in an effort to learn of his whereabouts. One of such calls was answered by Landry. Moses explained to Landry his trouble with Nick. In this conversation Landry stated that he might be able to help. This was Moses' first contact with Landry. Thereafter, Moses called Landry a number of times and, on November 28, 1956, Landry agreed to purchase for Moses a quantity of heroin for $15.00. Moses supplied the money and Landry made the purchase from a person unknown to Moses (subsequently identified as Judkins, jointly indicted with Landry), and on the following day it was delivered by Landry to Moses in the former's apartment. (This transaction forms the basis for counts 1, 2 and 3.) At the same time, Landry, at Moses' request, agreed to purchase for Moses 1/4 ounce of heroin for $50.00, which was done and which was again delivered to Moses in Landry's apartment. (This transaction forms the basis for counts 4, 5 and 6.) Moses admitted on cross-examination that he represented to Landry that he wanted the heroin for a girl friend who was an addict, sick and without a source of supply. The witness stated, "That was my spiel," referring to what he told Landry in order to obtain the heroin.Moses' testimony shows that Landry reaped no profit from either transaction. However, Moses did claim that subsequent to the transactions he gave Landry a $5.00 bill, which appears to have been in the form of a gratuity for services rendered.
Landry testified that he was addicted to the use of narcotics and had, previous to the date of the alleged transactions, voluntarily committed himself to Lexington Federal Hospital for treatment of his addiction and had been treated at other hospitals for the same purpose. He testified that on November 29, 1956 (the date of the two transactions involved), he was living at 7312 Cottage Grove Avenue, in an apartment with Dolores Dandridge and baby, a Mrs. Barnes, mother of Dolores, and Billy (Nick) Thurmond, a brother of Dolores. Mrs. Barnes occupied one bedroom, Dolores and baby another, and the brother and Landry slept on a pull-out bed in the dining room. Landry testified that he had never been engaged in the drug business other than as an addict. He testified as to numerous telephone calls eceived from Moses, in which the latter repeatedly importuned himto obtain narcotics for Moses' sick girl friend who, he stated, was having convulsions, was very sick, needed help and might hurt herself without them. It was his sympathy for the plight of the girl that caused him to lend his assistance to Moses in procuring the heroin. Landry stated he realized no profit from either transaction and denied that Moses gave him a $5.00 bill for his services.
As noted, this is only a brief resume of the testimony bearing upon the issue of entrapment but we think it sufficient to demonstrate the closeness of the proof on the issue for decision.
The Court instructed the jury:
"* * * you are instructed that if you believe from the evidence in this case that the defendant was entrapped, by a set of false and carefully arranged circumstances and other valid evidence apparently real, sufficient to deceive an ordinary person of defendant's age, knowledge and experience, into committing the crime charged against him, and that in the absence of such entrapment, the defendant never would have been guilty if the persons and officers had not inspired, incited, persuaded or lured him to attempt to do the unlawful acts of which he stands charged, you should find the defendant not guilty."
We think this instruction erroneous; certainly it was confusing. There was no issue as to what "an ordinary person of defendant's age, knowledge and experience" would have done under the circumstances. The issue was whether defendant was entrapped, not whether an ordinary person would have been. Nor was Landry's "knowledge and experience" in issue and, absent proof, it is not discernible how the jury could have evaluated the same
The instruction just quoted, as well as others on the issue of entrapment, makes no attempt to allocate the burden of proof. This is ...