Before SCHNACKENBERG, KILEY and MAJOR, Circuit Judges.
Defendant Armstrong was tried to a jury on a seven-count indictment charging violations of Secs. 4704(a) and 4705(a) of Title 26, and Sec. 174 of Title 21, U.S.C.A. The counts were predicated upon three sales of heroin to William Turnbeau, a Federal narcotics agent, on July 10 and 19, and August 14, 1962. The jury found defendant guilty on all counts. From the judgment entered on such verdict defendant appeals.
Defendant invoked the defense of entrapment and admitted the three sales, as well as other elements of the offenses laid in the indictment.
The grounds urged for reversal are (1) that the Court erred in its refusal to allow defendant's motion for a judgment of acquittal, appropriately made, on the basis that entrapment was shown as a matter of law, and (2) that in any event the Court erred in refusing certain instructions offered by defendant, subsequently discussed.
In considering whether the Court erred in its refusal to allow defendant's motion for a judgment of acquittal, we must view the evidence in the light most favorable to the government. Masciale v. United States, 356 U.S. 386, 78 S. Ct. 827, 2 L. Ed. 2d 859; United States v. Jones, 302 F.2d 46 (C.A. 7); United States v. Green, 315 F.2d 289 (C.A. 7), and United States v. Ellicott, 336 F.2d 868 (C.A. 4). The government offered the testimony of William Turnbeau, Vernon D. Meyer and Gale E. Ruhl, all Federal narcotics agents. The only testimony offered for the defense was that of defendant. In view of the admissions inherent in the defense of entrapment, we think it sufficient to set forth the testimony in condensed form.
Turnbeau testified that on July 10, 1962, he was introduced to defendant by Gino Lane, a special employee of the Bureau of Narcotics, who said to defendant, "This is Bill, a friend of mine who I have known for several years and I met him this morning and he told me he wanted to buy two spoons of heroin." After defendant shook hands with Turnbeau, Lane said, "Since you are the only one around here who can take care of that kind of action, I thought I would give you a chance to make the bread." The defendant said, "Look, Bill, you and I are strangers and the only people that I am concerned about are the ones that are trying to do me harm. I can let you have two spoons of heroin for $275.00." Turnbeau told defendant that he thought the price was fair. Defendant asked for money in advance and told Turnbeau that it would only take a short while to get the heroin. Turnbeau said that he didn't want to give that much money to a complete stranger and wanted to go with him. The defendant said that this was impossible but that he was reliable, inasmuch as he took care of narcotics business like any other legitimate businessman; that he was a large "pot" (marihuana) dealer, but that he had got into heroin in recent months. Turnbeau then gave defendant $275.00 in Official Advance Funds. Defendant left Turnbeau and entered a taxicab at 55th and South Parkway. About 35 minutes later, he returned to the same place, met Turnbeau, and handed him two pieces of newspaper, each containing an aluminum foil packet of heroin. Turnbeau, Lane and defendant entered Turnbeau's automobile and drove to 51st and Cottage Grove. During the ride, Turnbeau asked defendant if he could have his telephone number. Defendant told him that he couldn't give his telephone number and that he would have to get in touch with Lane any time he wanted to make a buy.
On July 19, 1962, Turnbeau again met defendant and told him he wanted to make another purchase of heroin but was not satisfied with the weight of the previous purchase.Defendant told him that the previous heroin had been diluted with Mannite but that the heroin he now had was diluted with milk sugar and had been put up just three days previously, on July 16, 1962. After some discussion, the price and amount of heroin were agreed upon, defendant went to his home, and in about an hour and 15 minutes returned and delivered the heroin to Turnbeau. Defendant, at Turnbeau's request, gave him his telephone number and told him the proper time to call.
On August 13, 1962, Turnbeau called defendant and said, "I want to see you about getting something." Arrangements were made for a meeting, when defendant told Turnbeau that he would not be able to deliver the heroin at that time because he could not get in touch with his connection, but promised to do so the following day. On August 14, the two again met according to arrangements previously made, and defendant sold Turnbeau heroin. During this meeting defendant told Turnbeau that his connection was a Jewish man whose business was picking horses.
Turnbeau on cross-examination admitted that following the third transaction he tried to purchase heroin from defendant on six different occasions, over a period of six weeks, and that on each occasion defendant refused. It was two weeks after his last attempt that Turnbeau arrested defendant.
Agents Meyer and Ruhl in the main corroborated Turnbeau as to his meetings with defendant, but not as to the conversations which took place between Turnbeau and defendant. Agent Meyer testified that he recruited Lane as a special employee. Lane told him he wanted to work for the government to avoid jail and, in return for his cooperation, he was able to avoid a narcotics prosecution in the state court.
Defendant testified at length, which testimony need not be related in detail for the reason that the government concedes that his testimony, if believed, shows entrapment. He testified that after his discharge from Leavenworth in September, 1960, he worked as a janitor in Chicago, which job he continued to hold until the date of trial. He met Lane in Leavenworth, where they were cellmates and friends. Lane attended him as a nurse during a long illness. After their release from prison, defendant met Lane in March, 1961, became very friendly with him and his wife and went to their home two or three times a week for dinner. When Lane's wife lost her job, he helped them financially. On July 8, 1962, defendant refused Lane's request to obtain drugs for him. The next day Lane again asked defendant to get narcotics for him, and at this time Lane's wife joined in the request, reminding him that Lane had saved his life in Leavenworth. Defendant continued his refusals, telling Lane he had already been in prison for doing that kind of favor, but on July 10, he finally agreed to accommodate Lane. It was then that Lane made arrangements for defendant to meet Turnbeau, and the first sale was consummated. On July 17, Lane again beseeched defendant to obtain drugs, but defendant said he did not want to get involved. Lane begged him to do it one more time, reminding defendant that he had taken care of him in his illness, and the second transaction resulted. Under similar circumstances, the third transaction took place, on August 14.
Defendant testified that following the third transaction, "Bill" (the name by which Turnbeau was known to him) called him six times for more drugs, and each time he refused. Defendant complained to Lane, asking him to tell Bill not to call, and told Lane he was not going to get more drugs. Lane asked him to do it once more. Defendant told him that one time had led to a second, then a third, and the third would lead to a fourth; that he did not want to be involved; that he had a job and was too old to go to jail again. He testified that he did not sell any drugs after his discharge from the penitentiary in September, 1960, until his first sale to Turnbeau. He denied the numerous incriminating matters testified to by Turnbeau.
Counsel in support of the defense of entrapment emphasizes (1) that the testimony of witnesses for the government was contradictory as to what was done and said by the parties in connection with the sales of narcotics by defendant; (2) that Lane, the informer used by the government, was not called by it as a witness to contradict defendant's testimony as to the circumstances under which he was induced to make the sales, and (3) that agent Turnbeau admitted that following the last sale he attempted on numerous occasions to make further purchases but the defendant refused. Notwithstanding this rather appealing argument, it was for the jury to determine whether it would believe the testimony of defendant or that of agent Turnbeau. It was a matter of credibility, and the jury evidently ...