the Duster. Hearn then handed the Defendant the keys to the Duster. Defendant took the keys, went outside, beckoned the agents from their seats in the restaurant, went over to the gold Duster, removed the meth, turned it over to the agents and was promptly arrested.
C. The Informant
Hearn (contrary to Agent's testimony) stated that his purpose in aiding the Federal authorities was to help clean up the drug traffic in the city. He stated that his willingness to assist was not to secure favorable influence regarding the disposition of his pending state cases. He testified that he heard that Defendant may be interested in buying some marijuana, so he took two friends "from the West Coast," and otherwise unidentified, to meet with Defendant in late December, 1972, at Defendant's place of business. Defendant turned down the offer to buy marijuana. Hearn denied asking Defendant if he wanted to sell meth and he also denied handing him a "sample." Hearn testified that after this initial meeting Defendant called him to discuss narcotics generally. Hearn stated that, thereafter, he called Defendant and asked him if he wanted to sell some meth because he, Hearn, had a buyer. Hearn testified that Defendant replied that he, Defendant, was interested in going ahead with the sale.
Hearn denied being in the bar across the street from Linton's on January 9. Hearn also denied furnishing any keys to the Duster to Defendant. In support of this denial as to Hearn's whereabouts on that day, the Government produced Hearn's sister-in-law with whom Hearn lived at the time, who testified that she recalls he was home sick all that day.
The fact that law enforcement officials merely afford the opportunity for commission of a criminal act does not, without more, constitute entrapment. Oftentimes, a law enforcement official must rely on stealth and a strategy of encouragement for persons predisposed to commit criminal acts, needing only the opportunity to do so. If the criminal act, however, is the singular product of creative activity of law enforcement officials, the defense of entrapment will insulate the actor from criminal charges that grow from such activity. United States v. Silver, 457 F.2d 1217, 1219 (3rd Cir. 1972). Once the defense of entrapment is properly raised, the Government has the burden of proving beyond a reasonable doubt that the defendant was not entrapped. United States v. Silver, supra, at 1220.
While the testimony of the agents appeared to be straight-forward and generally credible, there is no evidence resulting from the Government's testimony (other than informant Hearn) that this defendant, prior to the time he came into possession of the sample of meth, had any predisposition or even involvement in criminal activity of any kind, let alone trafficking in drugs. Defendant, in his own testimony, admitted that after he had received the sample of meth he attempted unsuccessfully to sell it on his own. Although these aborted efforts do not speak well for Defendant's sense of law-abiding responsibility neither can they form the necessary pre-disposition for the restaurant sale that took place several days later. This is so because the restaurant sale, as well as these other attempts, all depend upon the initial visit by Hearn to Defendant's place of business for their underpinning. Hearn was not a credible witness. His statement that he agreed to help Federal narcotics officials in order to rid the city of drug traffic collides head-on with his further statement that he introduced some unnamed "West Coast" drug traffickers to Defendant in regard to a possible marijuana sale. Hearn's testimony similarly differs materially with Agent's testimony, who stated that Hearn was willing to assist Agent in return for the relaying of such cooperation to other state prosecution authorities who would be interested in Hearn's positive qualities from the viewpoint of considering possible sentences. The Court believes that Hearn, in an effort to enhance his posture with sentencing authorities on the state level, pressed to the point of creating the series of events that began with the handing over of a sample of meth to Defendant and ended with Defendant's arrest on Linton's parking lot on January 9, 1973. The Government relying entirely on Hearn for the crucial elements to avoid the defense of entrapment has not proven beyond a reasonable doubt that there was not entrapment of Defendant.
The Court stands foursquare on the proposition that the fact that officers or employees of the Government merely afford opportunities or facilities for the commission of an offense does not defeat the prosecution; nor will a mere fact of deceit defeat the prosecution, for there are circumstances when the use of deceit is the only practicable law enforcement technique available. It is only when the Government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play. The evidence supports that conclusion in this case. See, United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 (decided April 24, 1973).