United States v. Ralph Brown

544 F.2d 1155, 1976 U.S. App. LEXIS 6334

• Court: Court of Appeals for the Second Circuit
• Decided: November 8, 1976
• Docket: 1267, Docket 76-1142
• Status: Published

Opinions

MESKILL, Circuit Judge:

This is an appeal from a judgment of conviction entered after a jury trial in the United States District Court for the Southern District of New York, Irving Ben Cooper, J., upon a two-count indictment. Count One charged the appellant, Ralph Brown, and one Arthur John Smith, a/k/a “Kayo,” and others unknown to the Grand Jury, with conspiring to violate the federal narcotics laws. Count Two charged the substantive offense of distributing, and possessing with intent to distribute, approximately one ounce of heroin.

Defendant Smith pleaded guilty to the conspiracy charge and he is not involved in this appeal.¹ Appellant Brown was convicted of the conspiracy charge and acquitted of the substantive charge. The only issues raised on this appeal involve the trial court’s instructions to the jury concerning the defense of entrapment.

The facts of the case are these: Brown is a resident of Atlantic City, New Jersey, who came to New York on a visit in early January of 1975. While in New York, Brown was contacted by Morris Davis, an old family friend of 20 years, who, unbeknownst to Brown, was a government informant. Brown claimed at trial that Davis talked him into helping him purchase drugs so that Davis could obtain enough money to invest in a bar.

On January 14th, Brown and Smith met with Davis and Carliese Gordon, an undercover Special Agent of the Drug Enforcement Administration. Davis introduced Gordon as his friend and future partner in the bar business. Brown and Smith helped Davis and Gordon purchase approximately one ounce of heroin for $1,400 from an unidentified source. At trial, Brown testified that Davis and Gordon had promised not to involve him in any further drug transactions. When the transaction was complete, Gordon told Brown that he might be back in a few days for two or three more ounces, and, according to Gordon, Brown responded that he could handle up to one kilogram.

On January 15th, Davis and Gordon met with Brown and Smith to complain that they had received less than the full ounce for which they had paid. Brown disclaimed responsibility, but stated that he had another source who could supply superior heroin for $2,500 per ounce. According to Brown, when Davis and Gordon told him on January 15th that the heroin he had helped them purchase was less than a full ounce, he perceived this as a trick to force him to help make up the money lost on the shortage. Brown testified that he decided to “play along” until he could return to New Jersey. On January 23rd, Brown and Smith attempted to purchase heroin for Gordon, but this attempt proved unsuccessful.

Thus, Brown admitted doing everything the government said he did, but defended on the ground that he lacked the requisite mens rea for either offense. He claimed that Davis’ entreaties amounted to entrapment, and the jury apparently agreed, for it acquitted him of the substantive offense. With respect to the conspiracy, he defended on the ground that up to and including the events of January 14th, he was a victim of entrapment, and thereafter he did not intend to further the illegal purposes of the conspiracy because he was merely “playing along.”² Since the jury convicted Brown of conspiracy, it is to that count that we turn our attention.

The entrapment portion of Judge Cooper’s charge to the jury was substantially as requested by defense counsel, and neither counsel objected to any portion of the charge. After two and one-half hours of deliberation, however, the jury sent the following note to the court:

Is entrapment a defense for conspiracy?³ I. e., if we feel there was entrapment, does it necessarily follow that we must acquit on conspiracy since no partnership would have been formed were it not for this “deal.”

Are these charges completely separate?⁴ The court answered the query contained in the last sentence of the note by saying that the conspiracy charge and the substantive charge were separate offenses and that it was the jury’s responsibility to render a verdict as to each. The court also asked the jury to rewrite the note so as to clarify the meaning of the word “deal.” Later that day, the jury sent a second note explaining that “deal” meant the “initial conversation between Morris [Davis] and Brown.” The court directed both attorneys to consider the matter that evening and, on the following morning, to recommend a response to the jury’s questions.

The next day, the government expressed its concern that the jury had confused entrapment with mere inducement, and requested a charge that would clarify the distinction between them. The judge declined to so charge on the ground that, if he did, he would appear to be telling the jury to find that there had been no entrapment.

Defense counsel stated that inasmuch as the heart of the conspiracy was the purchase of heroin on January 14th, the defense of entrapment applied to both counts equally, suggesting that if the jury believed Brown’s entrapment defense their verdict should be not guilty as to both counts.⁵

After listening to both sides, and before recalling the jury, Judge Cooper said, Gentlemen, I thank you for the efforts that you have apparently expended but I must say that unless I am entirely wrong, you have missed the . . point.

Both of you have overlooked it.

Entrapment can only be asserted where there has been an admission of doing the act. The proof here is that the defendant admitted [the substantive count] but created the defense of entrapment. He denied the conspiracy; he never admitted the conspiracy.

Following this statement, defense counsel asserted that Brown had admitted “doing almost every single thing the Government asked,” and he requested that if the Judge planned to charge as indicated that he also charge that Brown admitted the conspiracy. Judge Cooper declined to so charge because his recollection was to the contrary, and he decided to leave the question of admission as a question of fact for the jury. The jury was then recalled, and Judge Cooper charged as follows:

You undoubtedly got the general impression from my charge as to entrapment that it is a defense raised where a person charged with a crime says in effect, yes, I did do all those steps that spell out the doing of a crime but I want you to know that I want to add the defense of entrapment.

Hence, it is that when the defendant went on the stand you heard his testimony, you heard what he admitted and what he denied. There seems to be some disagreement between us as to whether or not the defendant admitted the conspiracy. It is clear that he admitted the second count.

If you conclude that he admitted the conspiracy, then you apply the defense of entrapment, because you don’t apply entrapment if a man denies he did something, only when he admits he did it. * * * * * *

A defendant’s testimony to the effect that he did not commit the crime cannot raise an issue of entrapment. That is the law I am charging you. I repeat it again: A defendant’s claim to the effect that he did not commit the crime cannot raise an issue of entrapment. ¡fes}:****

Now, suppose you conclude that he did admit the conspiracy or conspired. Then you apply the defense of entrapment the way you applied it in the second count on which we are all agreed that he did admit doing or committing that substantive act charged in Count 2. But he says I admit it but I was entrapped.

Don’t you see, in essence entrapment can be considered by you as a defense to each count separately?

Suppose, for example, you decide that he did admit in essence that he admitted the conspiracy. Then he is entitled to the defense of entrapment .

You take the whole trial record, everything that happened before you, the stipulations, the exhibits, everything else, and you decide on Count 1 did the Government establish the charge in Count 1, the conspiracy, beyond a reasonable doubt?

Did the defendant admit what you are convinced of, that he did conspire, that the charge has been sustained in Count 1? Well, you apply the defense of entrapment and are you satisfied from the totality of the evidence that he was entrapped? And if you are satisfied, out, he is acquitted of Count 1.

Then you pick up Count 2 and you ask yourselves what about this? The Judge told us what elements must be established, each of which must be established beyond a reasonable doubt as to Count 2. Are we satisfied beyond a reasonable doubt as to each one of those elements that must be proven in Count 2? Suppose you decide that you are satisfied beyond a reasonable doubt, you don’t have to ask yourselves whether or not he admitted Count 2, because we are all agreed that he did. You may be equally convinced with regard to Count 1.

But in considering Count 2 now, it is another case, another deal, another proposition, another separate act. It is another matter that you can consider using the same evidence, of course.

So you pick up that whole record again and pick up all the stipulations again and pick up everything in the total record again, including the Judge’s charge and, you say, am I convinced beyond a reasonable doubt that he committed Count 2? Suppose you say yes? Then you go to the question, what about entrapment? If you are convinced that the defendant was entrapped with regard to Count 2, out goes the case.

If you are not convinced, then you disregard what he asserts as to entrapment as to Count 2.

You may, for instance, find entrapment as to one count and not as to the other

Upon completion of this supplemental charge, Judge Cooper satisfied himself that the jurors individually understood his instructions and that the jurors’ inquiries contained in the note had been satisfactorily answered. After the jury returned to deliberate, Judge Cooper asked counsel for comments regarding the charge. The government said it was satisfied. Defense counsel said he was “concerned about the indication that there is some doubt in the Circuit as well as here about whether or not there is an admission to the [conspiracy] count.”

Two and one-half hours later, the jury returned a verdict finding the defendant guilty of conspiracy and not guilty of the substantive offense. Appellant claims on this appeal that the supplemental charge on entrapment was so defective that it precluded a fair evaluation of his defenses, thereby depriving him of a fair trial. We agree.

In order to understand why the charge was defective, it is necessary to first understand the reason Judge Cooper gave it. There is a logical inconsistency between the simultaneous assertion by a defendant that he did not commit a crime and that he was entrapped into committing it. The Circuits are split over the issue of whether a defendant should be permitted to make such an assertion. See United States v. Swiderski, 539 F.2d 854, at 859 n. 4 (2d Cir. 1976). This Circuit has not yet decided the issue. Id. Since Brown denied that he lacked the requisite mental intent for conspiracy because he was merely “playing along” after January 14th, Judge Cooper concluded that he had denied the conspiracy and therefore found it necessary to decide whether Brown should also be allowed to claim entrapment. He decided that Brown should not. For the reasons that follow, we conclude that Judge Cooper’s concerns were misplaced, and that he decided the issue left open in Swiderski, supra, unnecessarily. Consequently, the issue of whether a defendant may deny the commission of a crime and assert that he was entrapped into committing it need not be decided in the instant case and remains an open question in this Circuit.

The two defenses relied upon by Brown, entrapment and lack of intent, related to events occurring in two distinct and different periods of time within the life of the conspiracy. They are not addressed to a single criminal episode as was the case in Sylvia v. United States, 312 F.2d 145 (1st Cir.), cert. denied, 374 U.S. 809, 83 S.Ct. 1694, 10 L.Ed.2d 1032 (1963), upon which the government relies. Entrapment related to the initial agreement and the purchase of drugs on January 14th, the major events of the conspiracy. Lack of intent, on the other hand, related to the subsequent events when Brown made promises, allegedly without intending to perform. Since these defenses related to different time periods, they were not inconsistent. Brown neither admitted nor denied the entire conspiracy. He admitted the conspiracy up to and including the events of the 14th, and he asserted entrapment. He denied that he possessed the requisite intent after the 14th because he was merely “playing along” until he could return to New Jersey.

Brown was entitled to a charge which would not preclude the jury from considering both defenses. Judge Cooper left the question of Brown’s admission of the conspiracy for determination by the jury. Consequently, Judge Cooper’s charge led the jury to believe that the defense of entrapment could be considered only if they found that Brown admitted the conspiracy in toto. This was misleading, for it failed to allow the jury to consider Brown’s partial admission and partial denial: an admission of the actus rea and a denial of the mens rea. Inasmuch as Brown denied that he intended to further the illegal purposes of the conspiracy after January 14th, the jury must have thought that it could not consider the entrapment at all with respect to the conspiracy. That was simply incorrect. Although defense counsel failed to request a charge spelling out both defenses to the conspiracy count, the supplemental charge given was plain error and highly prejudicial to Brown’s defense. Consequently, the judgment of conviction must be reversed.

Brown also claims that the trial judge committed error in omitting to charge on reasonable doubt and the burden of proof as they relate to entrapment. Judge Cooper had agreed to give the requested charge, but omitted it unintentionally. In view of our. disposition of this case, we need not decide whether the omission was reversible error. At Brown’s new trial, if any, there is no reason to believe that the court will repeat its omission.

Reversed and remanded for a new trial.

1 . The substantive charge against Smith apparently remains open in accordance with the direction of Judge Cooper at the time of sentencing.

2 . The government contends that there is no basis in the record for Brown’s contention that his defense was lack of intent. We disagree. Although defense counsel took the somewhat simplistic position in his summation to the jury that entrapment was the only issue, we cannot fault counsel for trying to make the case simple for the jury. There was, in fact, evidence from which the jury could have concluded that Brown lacked intent. Brown so testified, and his testimony was corroborated to some extent by the fact that on January 23rd he drove to different locations with Agent Gordon without obtaining any heroin.

3 . When Judge Cooper read the note to counsel, he stated the first question as follows: “Is the entrapment defense for conspiracy?” Since both briefs contain the same variant, we use the version in the briefs.

4 . The underlying theory of the note appears to be that the events of January 14th and the events subsequent to January 14th “were not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement.” Sherman v. United States, 356 U.S. 369, 374, 78 S.Ct. 819, 822, 2 L.Ed.2d 848 (1958). Reluctant as we are to second-guess defense counsel or the court, it would seem that a charge based upon the quoted language from Sherman would have been appropriate.

5 . While defense counsel was correct so far as he went, his analysis was incomplete. His analysis was limited to the events of January 14th, and he failed to account for the possibility that the jury might conclude that the initial entrapment did not justify Brown’s continued involvement after January 14th. Even under Sherman, supra, the jury would have to find that the subsequent events were “part of a course of conduct which was the product of the inducement.” Id. at 374, 78 S.Ct. at 822.