Before Kalodner, Ganey and Freedman, Circuit Judges.
Following a jury trial, the defendants, practicing physicians, were found guilty of conspiring to violate the federal narcotic laws*fn1 and making unlawful sales of narcotics drugs*fn2
They prosecute their appeals on the grounds that (1) the trial judge erred in refusing to withdraw a juror following testimony of a government witness with respect to prior, unrelated unlawful narcotic sales by the defendant Clarke, and (2) the defense of entrapment was established as a matter of law in the government's case.
The appeals followed the trial judge's denial of the defendants' motions for judgments of acquittal and/or a new trial. 224 F. Supp. 647 (E.D.Pa.1963).
We will first consider the motion for a new trial. It is directed solely to the trial judge's denial of the defendants' motions for withdrawal of a juror which were premised on the following testimony of a government witness, John Ripa, a federal narcotic agent, during his direct examination by Mr. Reiter, the prosecutor.
"Q. In driving Mr. Clarke was there any conversation during that drive home?
"A. I am not sure whether the conversation was in the car or back at the office, but there was other conversation where Dr. Clarke told me that he furnished a considerable amount of cocaine to a fellow in New York City -
"Mr. Reiter: I withdraw that question.
"Mr. Carroll: I move for the withdrawal of a juror.
"Mr. Nix: I join in that on behalf of Dr. Johnson.
"The Court: Denied. The jury will disregard anything that they have just heard in the last minute." (N.T. p. 82)
The sum of the defendants' contention is that since their defense is entrapment, the testimony that Clarke had admitted to Agent Ripa that he had, prior to the unlawful sales charged in the indictment, "furnished a considerable amount of cocaine to a fellow in New York City", was so prejudicial that no instruction to the jury to disregard it could have "cured" it.
The government's position is that (1) the prompt instruction given by the trial judge to "disregard" the mooted testimony "removed any possible prejudice"; and (2) the evidence could have been admitted as relevant as bearing on the defendants' "state of mind, ...