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UNITED STATES v. OSBORNE

March 20, 1978

UNITED STATES OF AMERICA
v.
FRANK PARKER OSBORNE



The opinion of the court was delivered by: FOGEL

 FOGEL, J.

 Defendant, Frank Parker Osborne, was indicted on September 21, 1976, in a one count indictment, charging him with possession with intent to distribute approximately 74.2 grams of heroin, a schedule I narcotic substance, in violation of 21 U.S.C. § 841(a)(1). At his non-jury trial, which commenced on July 8, 1977, defendant admitted committing the acts underlying the substantive offense with which he was charged, *fn1" but raised the defense of entrapment. Moreover, after his trial defendant filed a motion to dismiss the indictment or, in the alternative, to re-open the record for additional testimony, asserting that an agreement existed between the informant and the Government whereby the informant would be leniently dealt with in a pending criminal prosecution in exchange for his testimony against defendant.

 For the reasons set forth below, we find there was no entrapment, and further, that the existence of an agreement between the informant and the Government does not taint the evidence against defendant to such an extent as to require dismissal of the indictment, or the re-opening of the record for additional testimony.

 I. STIPULATED FACTS

 In August, 1976, Detective Hildesheim of the Bristol Township Police Department received information from an informant that defendant would be involved in a heroin transaction that was to take place in the near future. On or about September 1, 1976, Detective Hildesheim told agents of the Drug Enforcement Agency (DEA) that a heroin transaction would transpire near the intersection of Cedar Drive and Paris Avenue, Bristol Township, Pennsylvania, between 9:00 a.m. and 11:00 a.m. on September 2, 1976. He also told them that Frank Osborne, a participant in the transaction, would be driving a red Chevrolet Corvair.

 On the basis of this information, Detective Hildesheim and DEA agents set up surveillance near Cedar Drive and Paris Avenue. They observed defendant arrive in a red Corvair and meet an individual who was parked in an Oldsmobile along Paris Avenue. Defendant was observed standing alongside the Oldsmobile engaging in a conversation with the individual who was operating the Oldsmobile. Defendant returned to the Corvair, carrying something in his hand, and proceeded northward on U.S. Route 1.

 At a point approximately five miles from the scene of the transfer, defendant's vehicle was surrounded by agents of the DEA and defendant was asked to step out of his vehicle. When he did so, DEA agent Clark noticed a foil package on the front seat. This package was seized and the contents were later analyzed and found to be approximately three ounces of 8.7% strength heroin.

 II. ENTRAPMENT

 Defendant's testimony in support of the entrapment defense may be summarized as follows:

 
1. Defendant had never been convicted of any crime involving drugs (July 8, 1977, N.T. 58-59);
 
2. During the summer of 1976, defendant was in financial straits and borrowed $275.00 from the informant (July 8, 1977, N.T. 62);
 
3. On repeated occasions during August, 1976, the informant urged defendant to satisfy his indebtedness by working for him (July 8, 1977, N.T.64);
 
4. After numerous rejections of the informant's offers, defendant finally agreed to deliver drugs from one point to another for the sum of $1,000.00 (July 8, 1977, N.T. 65);
 
5. The informant gave defendant the money to purchase the heroin, and instructions with respect to the place of "pick up"; defendant was also told to deliver it to the house of the informant's girlfriend (July 8, 1977, N.T. 69).

 Thus, defendant claims that the informant was so intent upon having him arrested, that he was willing to invest thousands of dollars to carry out his plan. Even if as the finder of fact in this non-jury trial we found defendant's testimony to be credible, (which we do not for reasons set forth more fully below) he has failed to establish the two essential elements of the entrapment defense: (1) Government inducement and (2) lack of predisposition to commit the crime.

 A. GOVERNMENT INDUCEMENT

 Entrapment exists when: (a) Government agents or those under Government control induce an otherwise innocent person to commit the crime charged; and (b) there is no predisposition on the part of that person to commit the crime. Therefore, to invoke the entrapment defense a defendant must show inducement by Government officials or agents. United States v. Timberlake, 559 F.2d 1375, 1378 (5th Cir. 1977); United States v. Romano, 278 F.2d 202, 204 (2d Cir. 1960). Construing the evidence in this case most favorably to defendant, we do not find a nexus between the Government and the informant which is sufficient to permit defendant to avail himself of this defense.

 The testimony pertinent to the issue of Government involvement, viewed most favorably to defendant, discloses the following facts:

 1. The informant contacted Detective Hildesheim in August, 1976, and told him of the impending drug transaction (July 8, 1977, N.T. 16-17, 33-34);

 2. Detective Hildesheim talked with the informant five or six times prior to defendant's arrest; (July 27, 1977, N.T. 12, 27); and

 3. The informant was considered "reliable" (July 8, 1977, N.T. 16).

 There is conflicting testimony with respect to the informant's motivation for disclosing the particulars of the drug transaction. Detective Hildesheim testified that the informant wanted defendant arrested because defendant was "running around" with the informant's girlfriend (July 8, 1977, N.T. 36-38); the informant testified that he wanted defendant arrested because defendant was selling drugs to teenagers (July 27, 1977, N.T. 34-35); defendant maintains he was "set up" (July 8, 1977, N.T. 63-72).

 It is important to note that the uncontradicted testimony of both the informant and Detective Hildesheim clearly establishes that the informant neither received nor was promised any compensation, financial or otherwise, in exchange for supplying the information which lead to defendant's arrest (July 8, 1977, N.T. 23-24, 38-39, 41; July 27, 1977, N.T. 21, 42-43). Moreover, there is not a scintilla of evidence suggesting that Detective Hildesheim or any other law enforcement official initiated contact with the informant, or urged him to uncover information which would lead to defendant's arrest. Therefore, in view of the record before us, we find that the informant's actions in this case were motivated solely by personal considerations, and not done in performance of a governmental function.

 A private scheme or plan which results in an arrest is not subject to the defense of entrapment. For example, in United States v. Mayo, 162 U.S. App. D.C. 171, 498 F.2d 713 (1974), a young woman approached two police officers and stated that she had just been raped by two men in a nearby apartment. She further stated that one of the men had a sawed-off shotgun in his possession. At trial, appellant admitted possession of the shotgun in violation of 26 U.S.C. § 5861(d) and § 5871, but asserted that the young woman had sold him the shotgun only minutes before his apprehension; therefore, he claimed that he was entrapped. Rejecting this contention, the Court stated:

 
It is fundamental that a defense based on entrapment requires the "inducement by an official. . . . The entrapment defense does not extend to inducement by a private citizen. . . ." (Citation omitted) *fn2"

 Moreover, in United States v. Laverick, 348 F.2d 708 (3d Cir.) cert. denied, 382 U.S. 940, 15 L. Ed. 2d 350, 86 S. Ct. 391 (1965), this Circuit stated:

 
[It] is obvious that a private individual may only be an entrapping party when an agency relationship exists between himself and the Government. ...

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