The opinion of the court was delivered by: MCILVAINE
The defendant, after the trial by jury, was found guilty of violation of the narcotics laws contrary to the provisions of Section 174, Title 21 U.S.C.A.
Thereafter, through counsel, he filed a motion for judgment of acquittal alleging (1) that under all the testimony, entrapment as a matter of law was established, and (2) that he did not engage in the sale, but was a mere procuring agent for the Government. In the alternative he sought a new trial.
There is very little dispute on the evidence. Narcotics Agent Charles G. Hill, operating as an undercover agent, together with a special employee, William Patton, went to the residence of the defendant on April 28, 1958, around 11:00 a.m. Both Hill and Patton were known to the defendant as all were schoolmates when they were younger, but defendant had not seen Mr. Hill for several years before the events in question. Patton knocked first, and Hill stayed out of sight. Patton requested the defendant to obtain narcotics for a friend of his. Agent Hill was brought in and was introduced as Patton's friend and, of course, was recognized by defendant as his old schoolmate. Wallace expressed surprise that Hill would be a user. Hill told the defendant that he, Hill, wished to purchase 'two spoons' for $ 35, and paid the money to Wallace after which Wallace left the house. About four hours later, Wallace came back and handed a package to Catherine Washington, who had been in the house during the entire transaction, and told her to take the package upstairs and make two spoons for Hill. Then Wallace went upstairs after Catherine Washington and in about five minutes came back and handed Hill two small brown paper packages sealed with Scotch tape. Later it was proved to be 35 grains of heroin.
The defendant testified that he had gone to school with Hill and only sold to him because of his friendship, and asserted the defense of entrapment.
The Court charged on the issue of entrapment at length, and the defendant took no objection to the charge in any respect. The issue of entrapment was submitted to the jury, and they found the defendant guilty. Thereafter, the Court proceeded to impose sentence, but before the imposition of sentence a conference was held with the Assistant United States Attorney in charge of the case and defendant's counsel. The Court was, after such conference, of the opinion that it could pronounce sentence in this case under the Youth Correction Act, Title 18, Section 4209, United States Code, as it was amended to apply to young adult offenders pursuant to Title 18, Section 4209, United States Code. The Court sentenced him under that Act to a total of seven years. Upon it being discovered that the Act expressly exempted any offense for which there is a mandatory penalty, the Court the next day resentenced the defendant to a mandatory five years imprisonment, 21 U.S.C.A. § 174.
At the argument on the motions, the defendant's position through his counsel was that the change in sentence was erroneous, that is, the change from sentencing him as a young adult offender to the mandatory imprisonment. In addition he contends that the record shows that the first approach was made by the agent of the law to an apparently innocent man and, therefore, entrapment should have been found as a matter of law. The defendant did claim that he was only a procuring agent under the evidence and that the entitled him to a directed verdict of acquittal, but at the argument on his motion for acquittal this position was abandoned. Defendant moved for a directed verdict of acquittal at the conclusion of the Government's case, but did not move for acquittal at the close of all the evidence.
Concerning the first question raised, that of imposition of sentence, first of all the fixing of penalties for a criminal offense is a legislative function. Martin v. United States, 10 Cir., 1938, 100 F.2d 490, 497.
The legislature may exercise reasonable discretion in fixing punishment for crime, and the courts may exercise judicial discretion in fixing punishment within the limits so prescribed. United States v. Meyers, D.C., 143 F.Supp. 1.
Here the Congress exercised its discretion in fixing penalties for this crime. We cannot say as a matter of law the exercise of that discretion was unreasonable. The Court imposed punishment within the limits so prescribed by Congress and, therefore, the imposition of the minimum mandatory sentence under the narcotics laws is constitutional.
The issue of entrapment, however, requires further discussion. The defendant states the issue to be:
'Where agents and employees of the United States induced an otherwise innocent man to sell narcotics to them, and where the record is completely devoid of any evidence of past acts of defendant which afforded the government with reasonable grounds for believing the accused was engaged in the particular unlawful business charged, is not entrapment established as a matter of law?'
The Government states the issue another way:
'Is it sufficient to show predisposition to make sale of narcotics, to show ready response to instant situation?'
The Government concedes that the record would indicate this man to be an apparently innocent man and concedes that the first approach was made by the agent of the law. However, there is ...