Kalodner, Staley and Adams, Circuit Judges.
The defendant-appellant Mark W. Silver was tried to a jury on an indictment charging him with making sales of narcotics on September 4 and September 16, 1970, in violation of the federal narcotic laws.*fn1 The jury found Silver guilty of making a sale and delivery of narcotics -- cocaine -- on September 4, 1970. It was, however, unable to agree on a verdict with respect to the charged September 16, 1970 sale.*fn2 Silver was sentenced to serve a 5-year term -- the minimum sentence fixed by law. This appeal followed.
The Government, in its case, adduced the testimony of federal narcotic agent Cassidy that he made a $1,300 purchase of cocaine from Silver on September 4, 1970 and a second purchase of $9,000 of cocaine on September 16, 1970. Federal narcotic agent Miller testified that he was present when the two sales were made. The agents testified that they had been introduced to Silver by Government informers, Yaworski and Scourfield, who had earlier informed them that Silver was involved in trafficking in drugs.
Silver testified in his own behalf. He admitted selling cocaine to agent Cassidy on September 4 and 16, 1970, as charged in the indictment. He said he made these sales only because the two informers had importuned him to do so, and had described agents Cassidy and Miller as members of the "Mafia" who would kill them, Silver, his girlfriend co-defendant D'Angelo, his pet goat, rooster, three dogs and three cats, should Silver fail to sell the agents cocaine.
Silver further testified that prior to his September sales to Cassidy he on three or four occasions in June and July 1970 procured cocaine for informers Yaworski and Scourfield for which they had promised to pay but failed to do so.
The defense called as witnesses the informers Yaworski and Scourfield who had been produced in court by the Government. The informers refused to testify, claiming the Fifth Amendment privilege.
In rebuttal, narcotic agent Miller testified that in August 1970 -- several weeks before the September 4, 1970 sale -- Silver had shown him a pouch-like container, attached to his belt, which contained several vials, which Silver said contained narcotics; Silver then told him he had a "connection" and a "source of supply" in San Francisco, California, who would furnish him with large quantities of "marihuana," and that he would fly to San Francisco to arrange for an initial purchase by Miller of between 200 and 250 Kilograms of marihuana. Miller further testified that Silver then had told him he could arrange with one "Chico," "his source, and his partner" for a supply of cocaine.
Silver contends on this appeal that the trial judge prejudically erred (1) in his instructions to the jury on the defense of entrapment; (2) in denying him effective assistance of counsel when he allegedly barred his counsel from conferring with him during recesses in the course of his testimony; and (3) in refusing to disqualify himself in response to Silver's affidavit of prejudice filed January 11, 1971, the day the trial began.
We will confine our review to Silver's contention with respect to the trial judge's instructions on entrapment. We are constrained, however, to note that we deem without merit Silver's second and third contentions.
The single question presented at the trial was whether the defendant had been entrapped into making unlawful sales of cocaine to the federal narcotics agents on September 4, 1970 and September 16, 1970, since he testified that he had made the sales and interposed only the defense of entrapment.
The critical question here presented is whether the trial judge committed reversible error in his charge to the jury on entrapment.
We are of the opinion that the trial judge committed reversible error in his charge to the jury on entrapment because he so intertwined correct instructions with incorrect instructions as to negative the effect of the correct instructions. It is settled that "[a] conviction ought not to rest on an equivocal direction to the jury on a basic issue."*fn3
Discussion of the trial judge's instructions must be prefaced by this summarization of settled principles ...