3 L. Ed. 2d 112, that once government inducement has been shown there are two issues. The government should establish that it engaged in no conduct that was shocking or offensive per se, and that the defendant was not, in fact, corrupted by the inducement.'
Defendants' reliance on this case is not well-founded as the following passages from Whiting demonstrate. As to the Government's proving the defendant was not, in fact, corrupted by the inducement, the Court, 321 F.2d at page 76, stated:
'So far as the second aspect is concerned, it could not possibly be ruled that the present defendant must prevail. Although it may be inferred that he concluded so to do because of Peterson's (the Government agent) references to 'clubs' or to mutual acquaintances, the defendant was the first to mention the subject of narcotics. He was also the first to raise the question of personal use. His remarks were scarcely oblique. When Peterson, a person whose only credentials were the alleged mutual acquaintances, disclosed an interest in making a purchase, it could hardly be said that the defendant's immediate response was indicative of a weak will converted by government temptation. At best, this was a question of fact for the jury.'
The foregoing is particularly fitting to the present case in that it was Doctor Clarke who first mentioned narcotics, and that on his first meeting with Agent Ripa, an illegal sale was consummated.
The defendant, in Whiting, then urged 321 F.2d at page 76: '* * * that it is per se improper conduct to offer inducement, as on the present record was done here, without prior good reason to suspect guilt', to which the Court replied 321 F.2d at page 77: '* * * we hold that it is not per se offensive conduct for the government to initiate inducement without a showing of probable cause.' One reason for this holding was that evidence necessary to prove probable cause might prejudice the defendant in the eyes of the jury on the issue of whether or not he was corrupted by the inducement. This is very pertinent to the present case when the cause for the mistrial at the second trial is recalled. The Court, therefore, concludes that the Whiting case adds nothing in support of the defendants' position; if anything, it weakens it.
The defendants' final contention concerning the Government's failure to prove predisposition is contained in their brief at page 5 where they assert, 'There was not the slightest admissible evidence of predisposition on the part of the defendants.' This statement flies in face of the Government's evidence and has no basis in fact. The testimony of Flores that Doctor Clarke first raised the question of narcotics, as well as Agent Ripa's testimony that at the first meeting both defendants fixed the price of the narcotics, vouched for its quality, discussed methods of transporting it and future meetings for subsequent sales, certainly shows predisposition. Also, it must be recalled that Flores testified that he was unaware of Doctor Johnson's involvement until the night of March 15, 1962, the same night that Doctor Johnson participated in the above related discussions, as well as giving Agent Ripa a sample of cocaine after having invited him home to dinner.
In United States v. Sawyer, 210 F.2d 169, at page 170 (3 Cir. 1954), Circuit Judge Hastie stated:
'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.'
The last mentioned activity on March 15, 1962 certainly shows this disposition. Further support for this is found in United States v. Orza, 320 F.2d 574, at pages 575, 576 (2 Cir. 1963), where in deciding that the issue of entrapment was properly submitted to a jury, the Court stated:
'This question was for the jury, see Masciale v. United States, supra, 356 U.S. at p. 388, 78 S. Ct. at pp. 828-829, 2 L. Ed. 2d 859, which could properly have found against the defendant on the basis of the size of the sale, the defendant's willingness to make it, his representations as to the quality of the narcotics, the ease with which he was able to make almost immediate delivery, and his stated willingness to make future sales.'
The defendants seemed to have forgotten that the jury was free to disregard the defendants' evidence in this case. Whiting v. United States, supra, 321 F.2d at page 74.
Another leading case which firmly supports the Court in its actions in the present case, as well as bearing on the issue of showing predisposition, is Masciale v. United States, 356 U.S. 386, at page 388, 78 S. Ct. 827, at pages 828-829, 2 L. Ed. 2d 859 (1958), in which neither party attempted to subpoena the Government informer, Kowel, but the Court stated:
'In this case entrapment could have occurred in only one of two ways. Either Marshall (Ripa) induced petitioner, or Kowel (Flores) did. As for Marshall (Ripa), petitioner has conceded here that the jury could have found that when petitioner met Marshall (Ripa) he was ready and willing to search out a source of narcotics and to bring about a sale. As for Kowel (Flores), 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 explained why he was willing to deal with Marshall (Ripa) and so established entrapment as a matter of law. However, his testimony alone could not have this effect. While petitioner presented enough evidence for the jury to consider, they were entitled to disbelieve him in regard to Kowel (Flores) and so find for the Government on the issue of guilt. Therefore, the trial court properly submitted the case to the jury.'
At the argument, defendants asserted that the failure of the Government to arrest defendants after the initial sale was further evidence of entrapment. The gist of the argument was that by allowing the illegal activity to continue, the Government was encouraging crime. Dispositive of this contention is the following from United States v. Sizer, 292 F.2d 596, 599 (4 Cir. 1961):
'Also without merit is the appellant's contention that he should have been arrested immediately upon the first sale and not given the opportunity to make additional sales. The arrest was not unduly delayed, and it was not improper for the officers to see how far Sizer was prepared to go in his illegal conduct, and to discover, as they did, the source of his supply. See Dailey v. United States, 5 Cir., 1958, 261 F.2d 870, certiorari denied, 359 U.S. 969, 79 S. Ct. 881, 3 L. Ed. 2d 836.'
In the present case, the arrest was not unduly delayed since less than a month elapsed between the first sale and the arrest. By the continuing investigation in this case, the Agents got some idea as to how far the defendants were willing to go in their illicit narcotics scheme as is witnessed by the increasing volume of business transacted at the successive meetings, as well as defendants' plan for opening the clinic to increase their supply. It was also important for the investigation to continue so that it could be determined whether or not others were involved with the defendants in this sordid business.
In holding that the continuing investigation in this case was completely justified and proper, consideration was given to the nature of the offense involved. The illicit traffic in narcotics, by its nature, is cancer-like in that it feeds on itself and infects everything it touches, spawning a multitude of other crimes. Once such a nefarious operation is suspected or discovered, it is the duty of Government Agents to ascertain fully the extent of any defendant's involvement, as well as to make sure that all concerned are apprehended. The necessity for a full and complete investigation was obvious and it was carried out in this case with complete propriety.
The motions will be denied.
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