At the trial in a Federal District Court in which petitioner was
convicted of the illegal sale of narcotics and conspiracy to make a
sale, he did not deny the sale or his participation in it, but
claimed that he was entrapped by government agents. The testimony
on the issue of entrapment was conflicting, and the judge submitted
it to the jury under instructions to which no objection was
made.
Held: on the record in this case, the trial court
properly submitted the case to the jury, and the conviction is
sustained. Pp.
356 U. S.
386-388.
236 F.2d 601 affirmed.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This case presents the same issue as
Sherman v. United
States, ante, p.
356 U. S. 369:
should petitioner's conviction be set aside on the ground that, as
a matter of law, the defense of entrapment was established?
Cf.
Sorrells v. United States, 287 U. S. 435.
Petitioner was convicted on three counts, two of which charged him
with the illegal sale of narcotics and one with conspiracy to make
a sale. [
Footnote 1] The issue
of entrapment went to the jury, [
Footnote 2]
Page 356 U. S. 387
and conviction followed. The Court of Appeals for the Second
Circuit affirmed. 236 F.2d 601. We granted certiorari. 352 U.S.
1000.
The evidence discloses the following events. On January 14,
1954, petitioner was introduced to government agent Marshall by a
government informer, Kowel. Although petitioner had known Kowel for
approximately four years, he was unaware of Kowel's undercover
activities. Marshall was introduced as a big narcotics buyer. Both
Marshall and petitioner testified concerning the ensuing
conversation. Marshall testified that he immediately made it clear
that he wanted to talk about buying large quantities of high-grade
narcotics, and that, if petitioner were not interested, the
conversation would end at once. Instead of leaving, petitioner
questioned Marshall on his knowledge of the narcotics traffic and
then boasted that, while he was primarily a gambler,
"he knew someone whom he considered high up in the narcotics
traffic to whom he would introduce me [Marshall], and that I was
able to get -- and I can quote this -- '88 per cent pure heroin'
from this source."
Marshall also stated that petitioner gave him a telephone number
where he could be reached. In his testimony, petitioner admitted
that he was a gambler, and had told Marshall that, through his
gambling contacts, he knew about the narcotics traffic. He denied
that he had then known any available source of narcotics or that he
said he could obtain narcotics for Marshall at that time.
Petitioner explained that he met marshall only to help Kowel
impress Marshall. Petitioner also said that it was Marshall who
gave him the telephone number. It is noteworthy that nowhere in his
testimony did petitioner state that, during the conversation,
either Marshall or Kowel tried to persuade him to enter the
narcotics traffic. In the six weeks following the conversation just
related, Marshall and petitioner met or spoke with each other at
least ten times; petitioner kept
Page 356 U. S. 388
telling Marshall that he was trying to make his contact, but was
having trouble doing so. Finally, on March 1, 1954, petitioner
introduced Marshall to Seifert, who sold some heroin to Marshall on
the next day. Petitioner even loaned his sister's car to Seifert in
order to get the narcotics. It was this sale for which petitioner
was convicted.
In this case, entrapment could have occurred in only one of two
ways. Either Marshall induced petitioner, or Kowel did. As for
Marshall, petitioner has conceded here that the jury could have
found that, when petitioner met Marshall, he was ready and willing
to search out a source of narcotics and to bring about a sale.
[
Footnote 3] As for Kowel,
petitioner testified that the informer engaged in a campaign to
persuade him to sell narcotics by using the lure of easy income.
Petitioner argues that this undisputed testimony [
Footnote 4] explained why he was willing to
deal with Marshall, and so established entrapment as a matter of
law. However, his testimony alone could hot have this effect. While
petitioner presented enough evidence for the jury to consider, they
were entitled to disbelieve him in regard to Kowel, and so find for
the Government on the issue of guilt. Therefore, the trial court
properly submitted the case to the jury. [
Footnote 5]
The judgment of the Court of Appeals is
Affirmed.
Page 356 U. S. 389
[
Footnote 1]
See 26 U.S.C. §§ 2553(a), 2554(a), 2554(a);
21 U.S.C. § 174, and 18 U.S.C. § 2.
[
Footnote 2]
The charge to the jury was not in issue here.
[
Footnote 3]
Well might petitioner concede this, for, despite petitioner's
version of the meeting and his explanation for being there, the
jury could have believed Marshall and have inferred from his
narration that petitioner needed no persuasion to seek a narcotics
buyer.
[
Footnote 4]
We conclude from the argument that neither party even attempted
to subpoena Kowel.
[
Footnote 5]
For the reasons stated in
Sherman v. United States,
ante, p.
356 U. S. 369, we
decline to consider the contention that this case should be
reversed and remanded to the District Court for a determination of
the issue of entrapment by the trial judge. This issue was never
raised by the parties. The question of entrapment was submitted to
the jury, and the charge to the jury was not put in issue by
petitioner either here or in the Court of Appeals.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE DOUGLAS, MR. JUSTICE
HARLAN, and MR. JUSTICE BRENNAN join, dissenting.
The trial court in this case, according to the view expressed in
my concurring opinion in
Sherman v. United States, ante,
p.
356 U. S. 378,
should itself have ruled on the issue of entrapment, and not left
it to determination by the jury. On a mere reading of the cold
record, the evidence for sustaining such a claim seems rather thin.
But the judge, who heard and saw the witnesses, might give
different weight to the evidence than the printed record reveals.
Accordingly, I would remand the case to the District Court for
determination of the issue of entrapment by the trial judge. If he
should conclude, as the jury was allowed to conclude, that the
claim of entrapment was not sustained, the conviction would stand.
If he reached a different result, the indictment should be
dismissed. This seems, on my view of the law, a better disposition
than for this Court to decide that no harm was done in leaving the
question to the jury because, as a matter of law, there was no
entrapment.