Hastie, Chief Judge, and Kalodner and Van Dusen, Circuit Judges.
The appellant has been convicted by a jury on an information which charged that on specified occasions he caused a drug that had moved in interstate commerce to be "misbranded" while held for sale, in violation of section 331(k) of title 21, United States Code, in that he dispensed a toxic drug, amphetamine sulphate, in an unlabeled container and without a prescription contrary to the requirement of section 353(b) (1) of title 21.*fn1
At the trial two inspectors employed by the United States Food and Drug Administration testified that on three different days they purchased unmarked bottles or packages of amphetamine sulphate tablets from the defendant at a motel in Secaucus, New Jersey where he was employed.
In his defense the appellant sought to show that he had been entrapped into selling the drugs without knowledge of their character. On this appeal we are urged to find reversible error both in the court's charge on entrapment and the judicially permitted use of certain hearsay evidence.
One of the inspectors who made the purchases testified that Don Maskell, an informant who had "worked hand-in-hand with the state police as well as Food & Drug in the past" had supplied information which led them to go to the motel where the appellant was employed and to offer to buy drugs from him. The inspector introduced himself as a truck driver and a friend of Maskell. This was done, according to the inspector's testimony, because "Maskell had said to him [appellant] that a friend of his was coming to buy drugs. * * *" After a considerable interrogation about the prospective buyer's identity and connections, the appellant sold the inspector for $40 an unmarked bottle containing 1000 amphetamine sulphate tablets. Later this inspector and a colleague made other similar purchases from the appellant.
The appellant's defense of entrapment was based largely upon his own testimony. He testified that Maskell was a truck driver who from time to time stayed at the motel and also had frequently borrowed money from him. At the time now in question Maskell owed him some $300. He repeatedly pressed Maskell for repayment until Maskell proposed that the appellant accept in lieu of cash some "merchandise," purchasers for which would be sent to him by Maskell. The "merchandise" was in five containers, each valued by Maskell as worth $50. Maskell characterized the contents by saying "every fat woman is taking them at one time or another" and that "this keeps you alert, and it also is a weight reducer." The appellant testified that he did not know that the contents were drugs which could not lawfully be dispensed without a prescription and that, except for the "merchandise" Maskell had pursuaded him to accept and dispense to buyers sent by Maskell, he had never sold such drugs.
It should be added that this exculpatory explanation was at odds with the testimony of the purchasing officers as to the appellant's conversation and conduct when they approached him and bought the drugs. But it also is noteworthy that the prosecution did not produce or call as a witness the one man, its informer Maskell, who knew whether the appellant's story of Maskell's role was true. It is also to be observed that the price of the "merchandise", four or five cents a tablet, was not so high as to suggest it was contraband or that the sale was illegal.
Thus, the appellant's story, if believed, would have justified a finding of entrapment and a consequent acquittal. For the appellant had pictured his entire handing and dispensing of drugs as a scheme arranged and implemented, with the assistance of public officers, by an informant, who admittedly "worked hand-in-hand" with the authorities on this and various other occasions, ostensibly as a way of satisfying a debt owed by the informant but actually as an artifice for entrapping the appellant into unwitting criminal conduct.
In these circumstances it was all important to the prosecution's rebuttal that predisposition and willingness to make illegal sales of drugs be shown. The challenged hearsay evidence related to this issue. As part of its rebuttal, the prosecution was permitted to introduce testimony of one of the purchasing officers that he and his colleague went to the motel and asked the appellant to sell them drugs because the informant had called them and said that the appellant was "dancing around the motel", apparently "under the influence of bennies", and "that he would sell [drugs] to anyone approaching him."
The prosecutor told the court that this testimony of the officer as to what the absent Maskell had told "was offered solely on the point of whether there was probable cause to go in". And the court so instructed the jury. However, the court also instructed the jury as follows:
"When, for example, the Government has reasonable grounds to believe that a person is engaged in the illicit sale of drugs, such as those in question, it is not an unlawful entrapment for a Government agent to pretend to be someone else and to offer either directly, or through an informer or other decoy, to purchase the illegal products from such suspected person."
"But, as I said to you before, there can be no entrapment if the accused was already disposed to do such wrongdoing, and that he was following a course of conduct which preceded, as alleged by the Government, the sale to the Government agents. For it is well-settled that where a person is reliably reported to be violating a law or when the circumstances show that it is likely he will so violate the law, Government agents may provide an ...