also conceded by all the parties that there is evidence from which the jury could find that the defendant was already disposed to such wrongdoing if you take into consideration his ready response to the particular request. It is not disputed that there was evidence from which the jury could say whether or not the defendant was disposed to trade in narcotics or yielded to importunations contrary to his own inclination. The jury, of course, decided against the defendant. As stated before, there is no objection raised as to the trial procedures, nor to the charge of the Court.
Granted that the United States Court of Appeals for the Ninth Circuit has stated in Carlton v. United States, 1952, 198 F.2d 795, 798:
'* * * once the entrapment defense is relied on the burden falls upon the prosecution to show that reasonable grounds existed for believing that the accused was engaged in the particular unlawful business charged.'
nevertheless, the United States Court of Appeals for the Third Circuit in United States v. Sawyer, 210 F.2d 169, 170, states that the criminal disposition of the defendant is often revealed by his response to the request of the government agent.
In United States v. Klosterman, 3 Cir., 1957, 248 F.2d 191, 195, the Court there stated:
'In this framework of fact, we are asked to determine the origin of the criminal intent. Whether the design is the product of official activity or of the defendant's mind is often disclosed by the amount of persuasion needed on the part of the government agent to move the defendant to the criminal conduct. Another way of stating this rule is to say that the criminal disposition of the defendant is often revealed by his response to the requests of the government agent. United States v. Sawyer, 3 Cir., 210 F.2d at page 170.'
The defendant's counsel strenuously argues that Sawyer is limited by the statement included in Klosterman, supra, 248 F.2d at page 196 wherein the Court stated:
'We do not think that the degree of persuasion is significant where the first approach is made by the agent of the law to an apparently innocent man.'
A short answer to this might be that in this particular case no persuasion as such was necessary to have Wallace carry out his criminal act. However, I think that United States v. Sawyer, supra, is still the law of the circuit in regard to entrapment by one engaged in the narcotics' trade. It is quoted with approval in Klosterman, supra, and nothing in Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 848, indicates the need of any change from the principle laid down there.
A particular apt expression from United States v. Sawyer, supra, 210 F.2d at page 170, applies directly to this case:
'In the present case it seems not to be disputed that a public officer solicited the particular violation. But even so, there could be no entrapment if the defendant was already disposed to such wrongdoing, awaiting only an advantageous and apparently safe opportunity. Such disposition or its absence may be evidenced in various ways, including response to the particular request and, in some situations, by a revealing recent course of conduct or activity.'
If a 'revealing recent course of conduct or activity' is necessary in all situations, even where there is a ready response, then the courts are going to be faced with the allowance of hearsay or prejudicial testimony to the prejudice of the defendant in a criminal case or law enforcement in this field will suffer a serious setback.
The Court does not think that the second statement quoted from Klosterman was intended to restrict Sawyer. This Court feels that United States v. Sawyer, supra, it still the law of this circuit as to entrapment in a narcotic case. If this is not the law, any change will have to come from some other court rather than this trial court. If Sawyer as stated with no modification is still the law, defendant's counsel concedes that his argument fails.
In this case defendant was ably represented by court-appointed counsel serving without compensation. While it is true that a motion for judgment of acquittal was not made at the close of all the evidence, nevertheless, we felt that the question of entrapment is of such importance that an expression of the Court's views on this subject was essential rather than passing on a technical point when deciding the case on its merits prejudices no one. Therefore, the motion for judgment of acquittal or for a new trial must be denied.
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