Appeal from the United States District Court for the Eastern District of Illinois, Southern Division - 73 CR 34 B Omer Poos, Judges.
Swygert, Chief Judge, Fairchild and Cummings, Circuit Judges. Swygert, Chief Judge, dissenting.
FAIRCHILD, Circuit Judge.
Appellant Smith was convicted by a jury of four counts charging distribution and possession of Methylenedioxy Amphetamine (MDA) and of cocaine. 21 U.S.C. § 841 (a)(1). Government proof tended to show a transfer April 1, 1973 of 32.09 grams MDA and.61 gram of cocaine. Appellant was sentenced to concurrent terms of five years, with confinement for six months and probation for the remainder.
Appellant Smith claimed at trial that he was "pressured into this sale" by agents and an informer, and the district court submitted the issue of entrapment to the jury to the apparent satisfaction of Smith. Since the jury found against him, though adequately instructed, Smith urges on appeal that entrapment must be deemed to have been established as a matter of law.
Smith's theory appears to be that evidence of repeated requests by government agents for assistance in obtaining narcotics, all preceding the sale by appellant, and the absence of evidence, beyond the sale itself, tending to show Smith's predisposition to sell the controlled substances, required acquittal as a matter of law. He relies principally on Sherman v. United States, 356 U.S. 369, 2 L. Ed. 2d 848, 78 S. Ct. 819 (1958), where the Supreme Court reversed a conviction, concluding that entrapment had been shown as a matter of law by the undisputed testimony of prosecution witnesses, the defense having called no witness of its own.
In the present case, however, there was a conflict in testimony as to the number of contacts between the government agents and Smith before the sale. Accordingly it will be necessary to analyze the evidence to determine whether the view of the evidence most favorable to supporting the jury verdict compels the conclusion that there was entrapment.
As stated in Sorrells v. United States, 287 U.S. 435, 441-42, 77 L. Ed. 413, 53 S. Ct. 210 (1932), "the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of the offense does not defeat the prosecution. Artifice and stratagem may be employed to catch those engaged in criminal enterprises. . . . A different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." It was said in Sherman, at 372, "a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal."
"The entrapment defense prohibits law enforcement officers from instigating a criminal act by persons 'otherwise innocent in order to lure them to its commission and to punish them.'" United States v. Russell, 411 U.S. 423, 428, 36 L. Ed. 2d 366, 93 S. Ct. 1637 (1973), quoting Sorrells at p. 448. The test is whether "the criminal conduct was 'the product of the creative activity' of law-enforcement officials." (Emphasis supplied.) Sherman at p. 372, quoting Sorrells at p. 451.
"Entrapment as a matter of law is established only where undisputed testimony makes it patently clear that an otherwise innocent person was induced to commit the act complained of by the trickery, persuasion, or fraud of the government agent." United States v. Millpax, Inc., 313 F.2d 152, 156 (7th Cir. 1963), citing Sorrells ; United States v. Haden, 397 F.2d 460, 466 (7th Cir. 1968) cert. den. 396 U.S. 1027, 24 L. Ed. 2d 523, 90 S. Ct. 574, citing Sherman and Sorrells.
The testimony of several special agents, called by the government, tended to establish the following version: On Sunday, April 1, 1973 at 3 p.m., Special Agent Casteel and Joseph Hale, a paid informer, went to the trailer where Smith lived. This was at Carbondale, Illinois, and Smith was a student at Southern Illinois University. Hale introduced Casteel to Smith and asked if Cronson, Smith's roommate, had made arrangements for the purchase of either cocaine or MDA. Smith said Cronson wasn't there, but Smith had contacted a source of supply and Smith would handle the transaction. Smith said the purchase would probably take place later that day, and asked Casteel where he would be. Casteel gave him his room number at a motel.
At 5 p.m. that day, Smith came to the room. Casteel and Hale were there, with Special Agent Bushendorf secreted in the bathroom. Smith told Casteel he could buy an ounce of cocaine for $1,050 or an ounce of MDA for $375. Casteel agreed to buy the MDA and asked for a small sample of the cocaine to see whether he wanted to buy a quantity later. Smith then telephoned someone he called Roger, informed him of the order, and said he would be over in a few minutes. Smith left, returned about an hour later and delivered the MDA, for which payment was made. He asked to see Casteel's and Hale's wallets to see if they were police. After that he turned over a small sample of cocaine.
Cross-examination of Special Agent Casteel developed testimony that Special Agent Jovonovich had made contact with Smith's roommate before April 1. Casteel had not met Smith before April 1. He had contact with him three or four times after April 1, and attempted to make additional purchases. On those occasions, Smith told Casteel his source had sold all he had. Smith was not arrested until May 17.
Cross-examination of Special Agent Bushendorf brought out that he was in charge of the investigation in Carbondale which began during the latter part of March, 1973 and continued to May 17. There were several agents in the unit. Hale had been a useful informer in Indiana and was referred by another agent to Bushendorf. Hale came to Carbondale and was instructed to make himself acquainted with the scene there and see what he could find out about the peddling of drugs. Bushendorf testified that, including the visit April 1, agents or Hale had visited the Smith trailer three times at the most.
Hale and Jovonovich did not testify.
Smith testified that he met two men named Joe (who turned out to be Hale and Jovonovich) on Sunday, two weeks before the sale. They had met Cronson before and had been asking how they could buy large quantities of drugs. He described meeting with Hale and either Jovonovich or Casteel on five occasions before the day on which he made the sale. They repeatedly spoke "very strongly about how they wanted to make a fast possession" of huge amounts of drugs so they could make money. "They were asking Bill, Chris, and myself if we could get them for them, and if we couldn't, who could?" He described the attitude of the students toward the agents as "rather cold," and was surprised the agents kept coming back. Except for deception as to identity, there was no testimony of any misrepresentation by the agents or the informer. Smith testified to statements that were, on their face, threats to "break into our trailer and take our belongings," but conceded these things were said in a joking manner. The only pressure claimed, in substance, was that the requests were repeated a number of times before the sale. There was no play upon sympathy as in Sherman.
Supporting the claim of repetitions of requests, Smith testified that five meetings took place in two weeks before the sale. He said the first meeting definitely took place after March 25 and could have been March 31. He placed the sale in mid-April. His testimony concerning the meetings was corroborated by several defense witnesses, who also said the sale occurred in mid-April. There is documentary proof, however, that the MDA and cocaine delivered to Casteel were received from him by mail at the laboratory in Chicago April 3. This strongly corroborates the agents' testimony that the sale was April 1. The jury could well have believed that the defense witnesses were confused as to the sequence of events; that Hale and Jovonovich met Cronson on one occasion and Smith on another late in March; that there were no other meetings before April 1; and that many of the conversations took place after the April 1 sale. Under this version the numerous repetitions of the request, accomplishing a change from refusal to acquiescence by the defendant, as present in Sherman, were lacking here.
Accordingly we conclude that the entrapment issue was, at best for Smith, a jury question, and the defense was not established as a matter of law.
The judgment appealed from is affirmed.
The judgment appealed from is affirmed.
SWYGERT, Chief Judge, dissenting.
The evidence relating to the conduct of federal narcotics agents in entrapping a naive young man and inducing him to sell illegal drugs is so overwhelming that his conviction should be set aside and a new trial ordered.
According to my readings of the record the Government prosecutor at trial inadvertently or otherwise constructed a red herring having to do with calendar dates relative to the operative facts so as to obfuscate the real issue of entrapment. Then on appeal, in his brief and at oral argument, he invited us to validate his approach. Unfortunately, the majority upholds the conviction on the ground there was sufficient conflict in the evidence so as to preclude us from considering the entrapment issue. But the only major conflict concerned the dates when the crucial events took place; there seems to be little dispute about their occurrence.
The evidence must be narrated in detail to demonstrate that the defendant was not predisposed to sell drugs and only through the deliberate efforts of the agents was he induced to commit the crime with which he was charged.
Stephen R. Smith, now twenty-two years old, lives in Long Grove, Illinois with his parents and eight brothers and sisters. In March and April 1973, Stephen was in his fourth year of studies at Southern Illinois University at Carbondale, Illinois. For three years he was a pre-med student, but then switched to civil engineering. During each of the summer recesses he worked at various jobs as a mechanic, a carpenter, and a painter, using his earnings to help finance his schooling.
Christopher Cronson and William Clayton graduated with Stephen Smith at Adlai Stevenson High School in Prairieview, Illinois. The three matriculated at Southern Illinois University. Early in 1973, the boys rented a trailer about a mile and a half from the campus, where they lived while attending the university.
The first quarter of the 1973 school year ended about March 12, 1973. Sometime thereafter, on a Saturday morning, most likely March 17,*fn1 undercover agent Joseph Jovonovich and "informant" Joseph Hale*fn2 picked up Christopher Cronson in their car on a highway leading from Carbondale to Edgewood Mobile Estates where the trailer occupied by Cronson, Clayton, and Smith was located. Cronson had stayed overnight at the University in Carbondale. After introducing themselves as Joe Hale and Indiana Joe, the two asked Cronson if he could locate some drugs, mescaline or cocaine, for them. Cronson said he did not have any drugs, but did agree to give them a marijuana cigarette in return for a ride home. At the trailer Cronson was reminded by "Indiana Joe" of his promise; thereupon Cronson produced a marijuana cigarette. The two smoked the "reefer" with William Clayton who had been awakened at their arrival with Cronson. Hale and Jovonovich said they were "new in town" and inquired generally about the Southern Illinois University. Clayton testified, "They asked repeatedly if me or Chris [Cronson] could obtain drugs for them." After approximately a half-hour Hale and Jovonovich left the trailer and drove Cronson back to the university.
Late in the afternoon of the following day (Sunday) Hale and Jovonovich returned uninvited to the trailer. (Cronson testified, "We are talking roughly about the Sunday two weeks before the sale.") It was during the supper hour and all three of the boys, Cronson, Clayton, and Smith were there. Hale and Jovonovich began talking to Clayton and Cronson about how to deal in marijuana and then asked the boys again, "Can you get any drugs for us?" Clayton testified, "Mostly they were asking for pounds of LSD and cocaine and amphetamines." Hale and Jovonovich asked what the possibilities were of the boys getting them the drugs. Smith testified that when Hale asked whether the three young men could get some cocaine for him, "we more or less ignored the conversation because we did not ever think in terms like that." Hale and Jovonovich stayed at the trailer for about thirty to forty-five minutes and then left.
The following Wednesday Hale and Jovonovich were waiting outside the trailer about 5:30 in the afternoon when Cronson and Smith returned from Carbondale where Smith had taken his turntable to be repaired. (Cronson testified, "This Wednesday that we are talking about was approximately a week and a half before the sale.") Hale and Jovonovich talked to Smith and Cronson as to whether the boys could get some drugs. Hale told the boys, according to Smith's testimony, that he wanted to buy "a lot of hard chemicals to take back to Indiana to sell them so he could make more money to buy a large amount of hashish and he said that he came to Carbondale to get it." Cronson testified: "They asked us if we could get them some drugs and, in general, just tried to make some friendship with us to make a sale with them. The agents were not invited over to our trailer that Wednesday. We never invited them back." After eating supper with the boys, Hale and Jovonovich left the trailer.
The following Saturday around dinnertime undercover agent Steven W. Casteel accompanied Hale and Jovonovich to the trailer where they met Cronson, Clayton, and Smith. Casteel after being introduced told the boys that his wife had died and that he was back in school, having attended Southern Illinois University before. He said he was starting all over again, wanted to make some friends, and would like to purchase some drugs. Cocaine and LSD were mentioned. Smith testified that the agents "came on very strongly about how they wanted to make a fast possession and get it because large drugs really could be moved during a strong limit of time." Smith also testified that he told them that if they wanted to get any drugs the only place that he could think of would be "some low-rent park or on the street or at the dormitories." That Saturday evening young Smith and his girlfriend, Sandra Schenck, were in Merlin's bar located at the edge of Carbondale. Hale and Casteel were also there. Smith testified, "We were basically ignoring them, pretending they were not there, because we did not want to have anything to do with them. I pointed out to Sandy who they were."*fn3 Cronson was also in the bar on the same evening. He testified: "They [the agents] asked me if I could get them any cocaine. I was just leaving when they were going in."
The next contact Smith had with the agents took place on Wednesday following the encounter at Merlin's bar. During the early evening, while all three boys were at the trailer and in the process of preparing their suppers, Hale and Jovonovich arrived uninvited. Clayton testified that this meeting was prior to the date of the sale. Clayton further testified:
We were watching television, myself and my roommate Chris Cronson and one of my neighbors, Gary Wagner. They came in and sat down. The same type of questions were asked, and most of the time I'd have to ignore them or walk away, because they'd just keep, you know, consistently asking questions and I'd ignore them most of the time. And they stayed for about half an hour.
Cronson testified about the Wednesday meeting:
The next time that I met with them was on a Wednesday, and at that time a neighbor was over, Gary Wagner, and he had come down to our trailer to borrow a kitchen utensil, and he was there, and there was a show -- we were watching this show and during that time Joe Hale and that man came in, knocked on the door and came in and sat down, and we smoked a marijuana cigarette, and they asked us if we could locate any drugs for them. . . . The main thing that I remember is that they were interested in cocaine and LSD . . . .
Smith's version of that Wednesday meeting is:
It was suppertime, sir, we were cooking . . . . Bill Clayton, Chris Cronson, Gary Wagner, and myself were present in the trailer at that time . . . . Well, sir, I'm sure Joe Hale was there -- I'm positive Joe Hale was there, and I don't perfectly recollect that Joe Jovonovich was there, but if Gary says that Joe and Joe were introduced to him, whenever the two came we always made a joke about Joe and Joe because it's a common name, and Gary had the names first.
Gary Wagner, a neighbor of the boys and a fellow student had come over to the trailer that Wednesday evening to borrow a kitchen utensil. Gary Wagner was called as a defense witness.*fn4
Significantly, the Government did not directly contradict the foregoing testimony of Clayton, Cronson, Smith or Wagner. The prosecutor could have called Hale and Jovonovich in rebuttal if he thought their testimony would contradict the defense witnesses as both were present during the trial but neither of them testified.
The Saturday following the Wednesday meeting Casteel and Hale again visited the trailer. Smith testified about this meeting:
Q All right, when did you next see any of these agents?
A It must have been the next Saturday, the Saturday following that Wednesday, sir.
A That was in my trailer.
Q And what agents came to your ...