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August 1, 1963

Eric R. CLARKE, Horace R. Johnson

The opinion of the court was delivered by: KRAFT

Defendants stand convicted by the verdict of a jury on charges of conspiracy, 18 U.S.C. § 371, and selling narcotic drugs not pursuant to written orders, 26 U.S.C. § 4705(a). Presently before us are motions of both defendants for judgment of acquittal and for a new trial.

The Government's evidence, largely uncontradicted, discloses that on March 15, 1962, Agent Ripa, accompanied by the Government's 'special employee', Joseph Flores, met the defendants, both licensed medical doctors, and purchased narcotics from them without written orders prescribed by the Act of Congress. Agent Ripa at that time made tenative arrangements with the defendants for further purchases of narcotic drugs, and Government agents made such purchases on four occasions during March and April 1962.

 Defendants admitted the commission of the substantive offenses. Their sole defense was entrapment. They asserted that they were induced to violate the law by the persistent and plaintive importunities of their erstwhile friend, Joseph Flores.

 Briefly, Dr. Clarke testified that he had known Flores for about ten years, that Flores 'is the brother of my wife's best friend, Martha.' He stated that his relations with Flores over the years had been very close, that they were members of the same social group and had associated on terms of the most intimate friendship. He stated that Flores first broached the subject of narcotics to him about three years before the trial, and that on numerous occasions thereafter Flores solicited him to supply him with narcotics. Dr. Clarke stated that he had never engaged in illicit traffic in narcotics and that he had never intended to, but that he finally yielded to Flores' entreaties on the occasions testified by the Government's witnesses. Speaking of his introduction to Agent Ripa, Dr. Clarke testified (p. 383):

 'He was introduced to me as a boyhood friend of Mr. Flores. They stated to me that they grew up together on 102nd Street in the vicinity of First and Second Avenue, and he introduced me to Mr. Ripa as -- in other words, he introduced Mr. Ripa to me as John, that is all he said, and what Mr. Ripa has related took place.'

 Dr. Johnson testified in similar vein. He stated that he first met Flores about seven or eight years before the trial and that they became close personal friends and mingled in the same social group with Dr. Clarke. He stated that early in the summer of 1961, Flores 'called me aside and told me at that time that he was very broke and in need of money and wouldn't I sell him some narcotics. And I refused to do so.' Thereafter, according to Dr. Johnson, Flores made repeated attempts to purchase narcotics from him, and, on at least one occasion, Flores stated he wanted narcotics 'to help his Cuban friends.' Dr. Johnson testified that he always withstood Flores solicitations until the events forming the basis for the present charges.

 If the defendants' testimony is to be accepted, they find themselves in the unhappy position of the petitioner in Spano v. New York, 360 U.S. 315, 323, 79 S. Ct. 1202, 1207, 3 L. Ed. 2d 1265 (1959):

 'Petitioner was apparently unaware of John Gay's famous couplet: "An open foe may prove a curse, But a pretended friend is worse,' and he yielded to his false friend's entreaties.'

 Flores was not produced at the trial and the Government had no answer on the issue of entrapment. Defendants' testimony presented enough for jury consideration, but they were not entitled to acquittal as a matter of law. We distinguish Sherman v. United States, 356 U.S. 369, 78 S. Ct. 819, 2 L. Ed. 2d 848 (1958), where no question of credibility was involved. See United States v. Collier, 313 F.2d 157 (7th Cir. 1963).

 In support of their motions for a new trial, defendants urge, inter alia, that the trial was unfair 'because of the absence of the special employee, Joseph Flores.' We think there is merit in this contention -- in the circumstances of the case -- and it will be unnecessary therefore to consider other grounds.

 Agent Cockerille testified that he sought out Flores in the first week of March 1962, and induced him to become a 'special employee'. He stated that he had information that Flores 'was familiar with in 'setting up' the garding Flores' part in 'setting up' the commission of the first criminal occurrence, Cockerille testified (p. 222):

 'Q Prior to your coming to Philadelphia on March 15, 1962, do I understand you correctly that Mr. Flores communicated with Drs. Clarke and Johnson at your request to set up a meeting?

 'A Yes, sir.

 'Q And were you present when he had any of those previous whether telephone or other conversations with the doctors ...

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