APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. D.C. Criminal No. 72-402.
McLaughlin, Gibbons, and Rosenn, Circuit Judges.
This appeal from a narcotics conviction raises the question of whether the trial court committed reversible error when it instructed the jury, in a bifurcated charge on the entrapment defense, that the defendant had the burden of proving the Government induced the criminal activity. Since we find that the defendant raised sufficient evidence of entrapment to be entitled to an instruction on entrapment, and that the bifurcated charge was improper, we reverse as to all counts on which defendant was convicted except Count III.
Watson was tried on a total of six counts involving distribution of heroin, possession with intent to distribute, illegal use of communications facilities, and conspiracy to distribute.*fn1 He took the stand, admitting most of the acts alleged and raising entrapment as his principal defense. Without objection by the Government,*fn2 the trial court granted defendant's request for an entrapment charge.
The first five paragraphs of the charge conform to the suggested language in 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 13.13 (2d Ed. 1970), which we approved in Government of the Virgin Islands v. Cruz, 478 F.2d 712, 717 n.5 (3d Cir. 1973). The dispute arises from the next paragraph in the charge. It stated:
The question of entrapment involves two issues. The first is whether the defendant was led or induced to commit the crime by anyone acting for the Government. That is, did the Government initiate the criminal transaction? On this issue the defendant has the burden of proof. [Emphasis supplied.]
The charge went on to say that the defendant had to prove by a preponderance of the evidence Government initiation of the criminal transaction; if such inducement were shown, then at that point the burden was on the Government to prove beyond a reasonable doubt that the defendant was ready and willing to commit the crime without persuasion, i.e., that he had a propensity to commit the crime. The final paragraph of the charge stated:
As I have instructed you, the Government has the burden of proof. To sustain its burden, the Government must prove its case beyond a reasonable doubt. There is no burden on the defendant to introduce any evidence or to convince you of any fact, which, if true, would be a defense to the crime charged in the indictment. It is sufficient for a verdict of not guilty if, from all the evidence presented, or the lack of it, a reasonable doubt exists in your minds as to the guilt of the defendant.
Defendant's counsel excepted to the entrapment charge on the ground that the burden of proving inducement should not be on the defendant. Defendant was convicted on five of the six counts in the indictment, and contends on appeal that the conviction must be reversed because the entrapment charge was improper.
The Government first contends that we need not decide the propriety of the entrapment charge because Watson was not entitled to the charge on the evidence adduced; thus, he could not have been prejudiced. United States v. Bishop, 367 F.2d 806, 809 (2d Cir. 1966). Cf. Lopez v. United States, 373 U.S. 427, 436-37, 10 L. Ed. 2d 462, 83 S. Ct. 1381 (1963).
We first note that the Government is clearly correct in its contention as to Count III of the indictment. The count alleges that on or about January 5, 1972, Watson violated 21 U.S.C. § 843 by knowingly and intentionally using a telephone to facilitate the knowing intentional distribution of heroin (a felony under § 841(a)(1)). Abrams, the Government witness to this call, testified that Watson called him to suggest that Watson had kilograms of heroin to sell. Watson, on the other hand, denied that he had made such a telephone call. Rather, he testified, around that date Abrams had called him to ask if he, Watson, knew anyone who could supply Abrams, but Watson replied that he did not deal in narcotics. Under Watson's version of the conversation, he did not violate § 843. Since he did not admit the crime charged, he was not entitled to any entrapment instruction as to this count, and he cannot complain that the entrapment charge was erroneous as to this count. United States v. Hendricks, 456 F.2d 167 (9th Cir. 1972).
As to the other counts on which Watson was convicted, he admitted that he had committed the acts alleged. We therefore must determine whether he was entitled to an entrapment charge as to those counts. In making this determination we must resolve all conflicts in testimony in favor of the defendant, United States v. Sawyer, 210 F.2d 169 ...