Thomas E. Trent v. United States

284 F.2d 286

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 21, 1960
• Docket: 15545_1
• Status: Published

Opinions

BURGER, Circuit Judge.

After jury trial appellant was convicted on all counts of a six count indictment for violation of narcotics laws.¹ He was sentenced to imprisonment for periods ranging from a minimum of 1 to a maximum of 5 years, sentences running concurrently. He was allowed to appeal at government expense with court appointed counsel who have ably briefed and argued all available points in this court.

The principal points urged here are: (a) the defense of entrapment, it being contended that the District Court should have directed a verdict of not guilty; (b) that the government was required to call as its witness an informant whose information led to police surveillance of appellant which, in turn, developed the evidence on which appellant’s conviction rests.

The record discloses: (1) that appellant was known to the police as an addict; (2) that the arresting police officer had previously observed him engaged with others in the use of narcotics and narcotics paraphernalia; (3) that the appellant made sales of narcotics to the officer on two separate occasions. The dissent depicts the appellant as just another one of the “mere addicts” upon whom the “present narcotics statutes” have an “unfortunate impact.” The record does not support the argument that this appellant is a “mere addict.” Apart from any of the information which the officers had received or the testimony of government agents that appellant engaged in drug traffic, Delores Terry, a friend of appellant who had no connection with the government, testified that appellant had supplied drugs to her “frequently.” She testified that this occurred when she lived with appellant in the summer of 1959 and her description of one episode with the “mere addict” is disclosed by the following excerpt from the record:

“Q. Did Trent buy drugs for you or supply you with drugs? A. He bought drugs for me.

“Q. Frequently? A. Yes.

“Q. Now, then, did you ever pay him for them? A. No, I just gave him some of the stuff, that’s all.

******

“Q. What kind of a habit did Trent have; do you know? A. Same kind I had.

“Q. What would that be? A. You mean what type of drugs he used?

Q. Yes. A. Heroin. it

******

“Q. Were you ever in Trent’s presence when he went out to obtain money to purchase drugs ? A. Yes.

“Q. Would you describe any one incident, as to what happened? A. I went shoplifting with him to get some money.

“Q. How frequently did you do that? A. Several times.

“Q. Did Trent have employment while he lived with you ? A. Not to my knowledge.

“Q. Where would he get his money from to supply his habit with, do you know ? A. From me most of the time.

“Q. Mostly from you. Were you working? A. No.

“Q. Where did you get your money from? A. Shoplifting.

******

“Q. In other words, he was the man you saw to get narcotics; is that right? A. He wasn’t a dealer, if that is what you mean.

“Q. No, but I meant, you would give him money to get it; isn’t that right? A. Yes.”

In great specificity the testimony showed Trent not only to be supporting himself generally by this unfortunate girl’s illicit earnings but also supporting his drug habit by procuring drugs for her and taking his “compensation” for that illegal brokerage in the form of part of the drugs so procured.

The courts have regularly condemned and penalized enforcement by true entrapment procedures. Such methods are universally proscribed. Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. But this case is a far cry from Sherman or Sorrells. It is well settled that “[ajrtifice and stratagem may be employed to catch those engaged in criminal enterprises.” 287 U.S. at page 441, 53 S.Ct. at ppg¡e 212. In discussing the rule as it applied to Sorrells the Court said:

“The act for which the defendant was prosecuted was instigated by the prohibition agent, * * * it was the creature of his purpose * * * defendant had no previous disposition to commit [the crime] but was an industrious, law-abiding citizen, and * * * otherwise innocent.”

The distinction between the “innocent” and the “predisposed” was again emphasized in Sherman v. United States, supra:

“To determine whether entrapment has been established, a line must be drawn between a trap for the unwary innocent and a trap for the unwary criminal. * * * ” (Emphasis added.) 356 U.S. at page 372, 78 S.Ct. at page 821.²

The distinction was also emphasized by Judge Washington in Guarro v. United States, 1956, 99 U.S.App.D.C. 97, 101, 237 F.2d 578, 582:

“There are many situations wherein use of police decoys is permissible, and perhaps a practical necessity. Drug peddlers are hard to catch if the undercover policeman may not make a purchase. And * * * it may lead to a conviction * *

No one can seriously challenge the proposition that the courts should not aid or •even tolerate criminal prosecution for acts “which [the accused] otherwise would not have attempted.” Such methods will tend to foster crime and ought not be employed on behalf of the government to bring about convictions. Such methods ought to be and often are condemned by trial courts as well as appellate courts. See United States v. Johnson, Crim.No. 434-60, D.D.C. Sept. 16, 1960. The disturbing factor is that such cases as Sherman or Johnson can occur at all. But this is plainly not such a case. The question here is whether it can reasonably be said on this record that Trent, who trafficked in narcotics on behalf of Delores Terry as well as with the undercover officer, meets the test of an “innocent person” lured by police into crimes “which [he] otherwise would not have attempted.”

When the appellant here is “subjected to [the] ‘appropriate and searching inquiry into his own conduct * * * ’ as bearing on his claim of innocence” (Sherman, 356 U.S. at page 373, 78 S.Ct. at page 821), his claim, as that of the dissent, that he was a “mere addict,” who was “innocent” until lured into crime by government agents, simply falls apart. Appellant’s predisposition to engage in narcotics trafficking was not, as in Sherman, remote in point of time by several years, but current and active as the undisputed testimony of Delores Terry discloses. It should not be overlooked that the whole of her testimony showed her to be friendly to appellant and hostile to the government, even though she was called as a government witness. -

The issue of entrapment was properly submitted to the jury under appropriate instructions. This record does not show as a matter of law, as contended by appellant and by the dissent, that the police or any police informant “had convinced an otherwise unwilling person to commit a criminal act.” Quite the contrary the evidence shows that appellant “was already predisposed to commit the act and exhibited only the natural hesitancy of one acquainted with the narcotics trade.” Sherman v. United States, supra; Sorrels v. United States, supra. On the first transaction with the police officer appellant received $6 for two capsules and kept two capsules for himself. This afforded a basis on which a jury could reasonably conclude that this transaction was in the same pattern of his transactions with the witness Delores Terry, where appellant’s “profit” on the transaction was taken in the form of narcotics rather than cash. Moreover, the record shows that when first approached by the plainclothes officer appellant refused to sell to him because, according to the officer’s testimony, “he [appellant] didn’t know who I was. He didn’t know whether I was a policeman or who.” On a second approach the officer was told by appellant to “wait a while and I will talk to you.” This sequence of events, appellant now argues, shows that he, an “innocent mind” was entrapped to do wrong. However, a jury could reasonably view this conduct not as showing innocence of criminal disposition, but as a manifestation of the caution and wariness of one seasoned and knowledgeable in the ways of the drug traffic, and suspicious lest his customer be a police officer or informant.

No doubt also a jury would, and reasonably so, be influenced by the whole pattern of appellant’s activities and mode of life, his willingness to live off the illicit earnings of Delores Terry, his activity in procuring drugs for her and taking his “pay” in narcotics caps, his wary responses to the agent’s efforts to buy. Perhaps, too, the jury may have taken into account the fact that while Agent Coursey was aware of Delores Terry’s weaknesses and need for narcotics he never tried to induce her to get drugs for him.

At this posture of the case we are not free to reject what the jury accepted as true nor to accept as true Trent’s testimony which the jury refused to believe. But the dissent elects to reject or ignore the testimony of Delores Terry and of Agent Coursey and to accept as true the contradictory and equivocal self serving suggestion of appellant that Dorothy Washington induced him to abandon his pure state and return to his drug habit.³ The dissent seems to recognize that in Sherman the Supreme Court did not choose between conflicting witnesses or pass on credibility, but rather reached its conclusion “from the undisputed testimony of the prosecution’s witnesses.” 356 U.S. at page 373, 78 S.Ct. at page 821. But the dissent attempts to bridge this very great difference in the facts of Sherman and the facts here by drawing inferences in favor of Trent from the prosecution’s failure to call Dorothy Washington as a witness; he would have us say that because the prosecution failed to call this witness we are compelled to reject the undisputed testimony of Delores Terry and of Agent Coursey and believe Trent.

Because defense counsel was free to argue the “missing witness” point and because the jury was free to draw inferences unfavorable to the prosecution, it does not follow that at this very late date we are under a compulsion, as the dissent seems to be, to believe appellant. Deaver v. United States, 81 U.S.App.D.C. 148, 155 F.2d 740, certiorari denied, 1946, 329 U.S. 766, 67 S.Ct. 121, 91 L.Ed. 659; United States v. Davis, 7 Cir., 1959, 262 F.2d 871; Ferrari v. United States, 9 Cir., 244 F.2d 132, certiorari denied, Darneille v. U. S., 1957, 355 U.S. 873, 78 S.Ct. 125, 2 L.Ed.2d 78; cf. Masciale v. United States, 1957, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859. Indeed, we as an appellate court are not even free to accept his testimony, which the jury must be deemed to have rejected. To accept Trent’s testimony would require us to reject other credible testimony believed by the jury.

Assuming, arguendo, that the evidence warranted the missing witness instruction with respect to Dorothy Washington if the defense had requested it, (but cf. Richards v. United States, 1960, 107 U.S.App.D.C. 197, 275 F.2d 655; see also United States v. Jackson, 3 Cir., 1958, 257 F.2d 41; United States v. Beekman, 2 Cir., 1946, 155 F.2d 580) the failure to give it without a request is not “plain error” under Rule 52(b) Fed.R.Crim.P., 18 U.S.C.A. That instruction is but one of a multitude of evidentiary instructions; denying the instruction might be error had it been asked for, but it was not indispensable to a fair trial on this record. This is pointed up by the fact that it is often a carefully calculated defense tactic not to ask for such an instruction in a close case thus leaving the defense free to press upon the jury the prosecution’s failure to call an alleged “missing witness.” There having been no such instruction requested, failure to give it is not “plain error.”

Some would perhaps think it would be more appropriate for courts to extend a modicum of judicial sympathy to Delores Terry and the other potential victims of Trent’s varied procuring activities, rather than on Trent. For surely if he is set free as the dissent would have us do— with his conduct judicially vindicated as it will appear to him — there will be other Delores Terrys, whose earnings from shoplifting, prostitution or other crimes will be exploited by Trent.

Affirmed.

1 . 21 U.S.C.A. § 174; 26 U.S.C. §§ 4704(a), 4705(a) (1958).

2 . As pointed out by Mr. Justice Frankfurter in his Sherman concurrence, the particular sale to an officer or police agent is always one induced by the purchaser. To find whether the accused is “predisposed” to commit that kind of crime requires answering, on the basis of the whole record, whether the conduct of the accused has been such as to persuade reasonable men beyond doubt that the accused is indeed a person who would “commit, whenever the opportunity should arise, crimes of the kind solicited * * by the police or their agent. “This does not mean that the police may not act so as to detect those engaged in criminal conduct and ready and willing to commit further crimes should the occasion arise. Such indeed is their obligation.” Sherman v. United States, 1958, 356 U.S. 369, 383, 78 S.Ct. 819, 826.

3 . “Q. Now how did she get you back on?

A. She would give me the stuff. She would give me narcotics when we — she had them, and I just started venturing back into it.”

Appellant’s “slip-of-the-tongue” reference to “we,” quickly amended to “she” may not have been without significance to the jury which listened to his testimony and saw his conduct on the stand, for they, unlike our dissenting colleague, did not believe a word he said.