Before KALODNER, STALEY and SMITH, Circuit Judges.
Following a jury trial, defendant, James Neal, was found guilty and sentenced for violations of the narcotics laws.*fn1
Defendant prosecutes this appeal on the grounds that (1) the trial judge answered an inquiry made by the jury in the course of its deliberations in the absence of the defendant and his counsel thereby committing prejudicial error; and (2) the trial judge erred in his instructions to the jury with respect to entrapment.
The trial judge, in a Memorandum Opinion in which he denied defendant's motion for a new trial which was premised on the ground here presented, said:
"A final ground for new trial is defense counsel's charge that the Court in his absence received a note from the jury, considered it and then stated to the jury that they were free to make a recommendation of mercy but that the Court might feel constrained to disregard it. Defendant argues that inasmuch as the jury did not know that a conviction carried with it a mandatory sentence, the Court's willingness to accept a mercy recommendation might have persuaded them the more easily to agree to a conviction.
"Whether or not the Court answered the question from the jury in the absence of defense counsel is sharply disputed by government counsel who states defendant's counsel was present and did not object. It has been this Court's invariable practice not to answer notes sent by a jury while deliberating without consulting both counsel. This, together with government counsel's memory of the affair makes the Court feel that defense counsel is mistaken in his assertion. The record is unfortunately silent and the Court has forgotten. In any event, even defense counsel agrees that before the jury returned to the box to give its verdict, the Court advised defense counsel it had instructed the jury that it might make a recommendation of leniency, and defense counsel, neither at that point nor after the jury had returned a verdict of guilty with a recommendation of mercy, took any exception to the Court's alleged action.
"Moreover, the Court doubts the action was prejudicial. Although the sentence was mandatory, the Court could have imposed a wide range of penalties over and above five years. * * *" (emphasis supplied except with respect to the word "before" and "after" which were emphasized by the trial judge)
That the jury did make inquiry of the trial judge and that he replied to it is evidenced by the trial transcript at the point the jury's verdict was received. After the foreman of the jury had returned its verdict of guilty on the six counts of the indictment he said to the Court:
"May we recommend leniency?"
"The Court will accept the recommendation of mercy. As I said to you, however, the Court must in cases like this feel free to disregard it if it desires." (Emphasis supplied.)