United States v. McGlenn

Opinion of the Court HoMer Ferguson, Judge: The accused stands convicted of the offenses of wrongfully possessing and using marihuana. He seeks reversal of the conviction of wrongful possession based on a claim of illegal entrapment by Government agents. We granted review, limited to the following issues: 1. Whether the evidence of inducement of the accused by a Government agent to purchase marihuana cigarettes for the agent required the prosecution to rebut this by proof of excuse for such inducement. 2. Assuming an affirmative answer to the first issue, did the prosecution sustain such burden? 3. Whether the law officer was required to instruct that where entrapment is raised the burden was on the defense to show inducement by the Government, but that once this was shown the burden was then on the prosecution to show excuse for such inducement. The conviction of wrongful possession must be reversed because of the Government’s failure to rebut evidence of inducement on the part of its agents by showing that reasonable grounds existed for the belief or suspicion that the accused was engaged in narcotics traffic. Therefore, it is unnecessary to decide or discuss the third issue raised. The facts essential to the present decision are as follows: On the evening of December 16, 1955, the accused, together with other Marines, was engaged in a barracks dice game. Present, but not participating in this group activity, was one Robert Dooley, a narcotics addict turned Criminal Investigation Division informer.1 Dooley was then in [289] troduced for the first time to the accused through a mutual friend. A short while later the informer offered the accused $5.00 for the purpose of purchasing some marihuana cigarettes for him. The accused refused the offer and returned to the game. Dooley, however, continued to importune the accused, until the latter relented and consented to make the purchase. The game proved popular and as a result lasted longer than expected. Due to the lateness of the hour, the accused decided not to go into town and returned the money to the informer. The next morning Dooley again appeared in the accused’s barracks and again implored him to make the purchase. The accused again refused, but finally consented and accepted the money. The purchase of twelve marihuana cigarettes was made that evening and the accused returned to his barracks and found Dooley asleep on his (accused’s) bunk. After awakening him, they went to the accused’s car where the contraband was exchanged. Pursuant to Dooley’s request, the accused retained six of the cigarettes for safekeeping. The following morning Criminal Investigation Division Agent Harris, after receiving a call at his home from the informer, proceeded to the accused’s barracks, where he found him in possession of six marihuana cigarettes. A subsequent search of the accused’s car revealed a “roach”2 in the glove compartment. A statement was later obtained from the accused in which he admitted having purchased the cigarettes from a “pusher” in Los Angeles. He also admitted smoking two or three of the cigarettes with a friend prior to returning to the base. Agent Harris, the sole prosecution witness at trial, testified generally concerning the events leading up to the accused’s apprehension. He testified that on the morning of the arrest, he had received information from the informer concerning the accused’s possession of the cigarettes. The prosecution rested after the introduction of the accused’s statement into evidence. The defense opened its case by informing the court that it intended “to present a defense to this offense, namely entrapment.” Agent Harris was recalled as a defense witness and testified that Dooley had been confined ’ in the base brig because of narcotics violations.3 Pursuant to the provost marshal’s request, he had been released in order that he might “act in the capacity as a narcotic’s informant” for both the Los Angeles Police Department and the Criminal Investigation Division. The agent further testified that he had instructed Dooley not to purchase any marihuana because the Division had no money to reimburse him for such expenditures. The accused took the stand in his own defense limiting his testimony to the wrongful possession charge. He admitted having purchased the cigarettes, but only after Dooley’s incessant persistence. After being apprehended he did not disclose to the investigators that the cigarettes belonged to Dooley because of his claimed desire not to implicate the latter. Lieutenant Colonel Menconi, Base Provost Marshal, was next called as a defense witness. He testified, concerning the employment of Dooley as an informer in exchange for which he had promised to write to the informer’s commanding officer “setting forth his degree of cooperation and it would be up to his commanding officer whether or not he wanted to take this into cognizance and reduce his sentence or get him out of a court-martial completely.” The witness denied having initiated any instructions to the informer as to how the purchase was to be made. Defense counsel then directed the following questions to the witness, which are particularly pertinent to the issues we now consider: “Q. Colonel you say an informant is a person who make [sic] contact [290] with a person suspected of an offense. Previous to this, was George McGIenn suspected of an offense? “A. I can’t answer that, I don’t know. “Q. Did you suspect him? “A. Did I personally, no.” [Emphasis supplied.] In addition to this specific disclaimer by the Base Provost Marshal himself, the entire record is silent as to any evidence indicating that reasonable grounds existed to believe that the accused was trafficking in narcotics. No previous connection with the traffic nor any complaints made with reference to him were established. Once the defense had introduced evidence showing inducement of the accused by one acting as a Government agent, the prosecution was then required to show that excuse— reasonable grounds or suspicion to believe that the accused was dealing in narcotics — existed to justify the inducement. This the Government failed to do and this failure requires reversal. Pertinent Federal authorities are in accord with the position we take. In the leading case of C. M. Spring Drug Co. v United States, 12 F2d 852 (CA8th Cir) (1926), involving a violation of the Federal narcotics law, the Court said: “. . . It is well settled by the decisions of the Supreme Court of the United States, we think now universally followed in the several circuits, that, where the government, through its agents, has reasonable cause to believe that the law is being violated by the defendant, they may legally entrap the defendant by decoy letters or by pretended purchases. Price v United States, 165 US 311, 17 S Ct 366, 41 L Ed 727; Grimm v United States, 156 US 604, 15 S Ct 470, 39 L Ed 550; Goode v United States, 159 US 663, 16 .S Ct 136, 40 L Ed 297; Andrews v United States, 162 US 420, 16 S Ct 798, 40 L Ed 1023; Fiunkin v United States (CCA) 265 F 1.” [Emphasis supplied.] In United States v Mitchell, 143 F2d 953 (CA 10th Cir) (1944), the accused was charged with a narcotics violation. He contended that he was illegally entrapped because he had made sales based on decoy letters written by Government ageqts. The court, in holding that the accused was legally entrapped, said: “The agent Westover testified that he had been investigating appellant for eight or nine months; that he had narcotics purchased from appellant; that he took an informer to Shidler, Oklahoma, where he saw him go to appellant and later return; that this was repeated three or four times; that he became acquainted with Earl Allen and Charles Gholston, who were both addicts; that it was after a conference with Gholston that he prepared the decoy letter. We think this amply sustains the government’s contention that the government through its agents had reasonable cause to believe that appellant was violating the law.” [Emphasis supplied.] Another leading case illustrative of the principle here announced is Heath v United States, 169 F2d 1007 (CAlOth Cir) (1948). The. accused there was charged with carrying on a wholesale liquor business without paying a special tax as required by statute. A Government agent testified concerning transactions he had conducted with the accused. The accused injected the defense of entrapment into the case thereby placing upon the Government the burden of justifying the entrapment. Evidence was then admitted relating to the investigator’s receipt of numerous reports as well as his previous knowledge of the defendant’s unlawful liquor activities. The court, after declaring that such evidence was properly admitted for the purpose of justifying the entrapment of the accused, and was competent testimony, said: “. . . It is well recognized that officers may entrap one into the commission of an offense only when they have reasonable grounds to believe that he is engaged in unlawful activities. They may not initiate the intent and purpose of the violation. In a case of entrapment, it is incumbent on the government to prove reasonable grounds to believe that the intent and purpose to violate the law existed in the mind of the accused.” [Emphasis [291] supplied.] [Accord, Ryles v United States, 183 F2d 944 (CA 10th Cir) (1950); Nero v United States, 189 F 2d 515 (CA 6th Cir) (1951).] In Weathers v United States, 126 F2d 118 (CA 5th Cir) (1942), the accused was charged with depositing in the mail certain letters intending to give information concerning the production of an abortion. The letters set forth in the indictment were in answer to a decoy letter sent out by a post office inspector. On appeal the accused contended that he was unlawfully entrapped and that the reply letters ought to have been excluded and an acquittal directed. In rejecting this contention, the court said: “. . . It is well settled that when a person is reliably reported to he violating a laio, or ivhen the circumstances show it is likely, he may by an officer he tested by an opportunity, a decoy. Price v United States, 165 US 311, 17 S Ct 366, 41 L Ed 727; Andrews v United States, 162 US 420, 16 S Ct 798, 40 L Ed 1023; Rosen v United States, 161 US 29, 16 S Ct 434, 40 L Ed 606. But an officer ought not to lure a man who is not criminal-minded into committing a crime for the sake of punishing somebody. The courts will not, as a matter of good policy, sanction a conviction where a person not justly an object of suspicion is through undue temptation or pressure by an officer induced to become a criminal. Sorrells v United States, 287 US 435. 53 S Ct 210, 77 L Ed 413, 86 ALR 249. In this case Weathers, a physician, was known for a long time to have been advertizing under another name a ‘maternity home’, which was really his own home, where he treated patients and had a few beds for their use. The advertisements were published in several newspapers in three States, and many of the newspapers were of course carried in the mails. The advertisements invited correspondence addressed to a postoffice box of a friend of Weathers. The post-office inspector was informed that abortions were in fact being performed. Knowing that the advertisements were being carried in the mails, he concluded that they really were intended for patients who were seeking abortions. He wrote the decoy letter purporting to be from a single girl in another State, pregnant for six weeks, asking for a solution to her trouble, and saying she had some money but must leave her city. The accused, under the name assumed in advertising, answered, telling her to come to Jacksonville, to a stated address (being the home of Dr. Weathers), and call for Dr. Weathers, and she could probably return home in a week or ten days. It was left to the jury to say whether under these circumstances there was an unlawful temptation offered by an officer. We find no error.” [Accord, Morei v United States, 127 F2d 827 (CA 6th Cir) (1942) where the accused’s conviction for a narcotics violation was reversed because of illegal entrapment where there “was no evidence that he had ever been engaged in the narcotic traffic or any other criminal transactions; and there was no reasonable cause to believe that he was engaged in the narcotic traffic.”] [Emphasis supplied.] ' By no means are we to be understood as saying that lack of probable cause to believe that accused was dealing in narcotics or lack of suspicion in the mind of an agent or informer who makes a pretended purchase, alone constitutes entrapment. Swallum v United States, 39 F2d 390 (CA8th Cir) (1930). All we hold is that when a showing of inducement by a Government agent is made, the prosecution must prove that its agents acted under a reasonable belief that the law was being violated by the accused. The gist of the defense of illegal entrapment is that an agent conceives an offense against the law and then incites a person to commit that offense for the purpose of prosecution. In United States v Certain Quantities of Intoxicating Liquors, 290 Fed 824 (D NH) (1923), the court, after carefully examining authorities, set forth the rule that in order to defeat a claim of an illegal entrapment, one of the following conditions must be met: “. . . (1) reasonable suspicion on the part of the officers that the [292] party is engaged in the commission of a crime or is about to do so; or (2) the original suggestion or initiative must have come from the perpetrator.” We adopt this rule and when we apply it to the instant case, we are satisfied that the Government has failed to establish either condition. As we have previously noted, the Government failed to show that a reasonable suspicion or belief existed that the accused was engaged in the traffic. As to the second condition the record shows beyond cavil that the “original suggestion or initiative” originated not with the accused, but with the informer acting in concert with Government agents. The Government in its brief cites the case of United States v Ginsburg, 96 F2d 832 (CA 7th Cir) (1938) as authority for the proposition that Government agents need not have reasonable grounds to believe that an accused is engaged in unlawful activities in order to use informers to procure the commission of an offense. We believe reliance on the Ginsburg case, supra, is misplaced because there the accused “made no defense of entrapment in the District Court, tendered no instructions on that question, and made no objections that none were given upon that subject. His sole defense was that he did not sell the drug, and at no time had it in his possession, or aided in concealing it. Under these circumstances the contention [illegal entrapment] is not tenable.” It'is well settled that the defense of entrapment is not available to one who denies commission of the offense. Nutter v United States, 289 Fed 484 (CA 4th Cir) (1923). When the issue of illegal entrapment is interposed as a defense, the predisposition for criminal design of an accused becomes relevant, and it is incumbent upon the prosecution to show what grounds of suspicion existed to warrant the inducement. United States v Siegel, 16 F2d 134 (D Minn) (1926). Law.enforcement officers are entitled to act in such cases upon information which warrants such a reasonable belief. St. Clair v United States, 17 F2d 886 (CA 8th Cir) (1927). Statements made by the accused relative to previous similar acts upon his part have been held admissible to show that the officers were attempting to detect crime and not to induce its commission. Fisk v United States, 279 Fed 12 (CA 6th Cir) (1922). Likewise evidence of the accused’s prior convictions for narcotics offenses is also relevant as tending to refute the contention that the intent to bring about the crime originated with the officers. Carlton v United States, 198 F2d 795 (CA 9th Cir) (1952). Furthermore, in order to meet the issue of entrapment, the prosecution may properly interrogate witnesses as to whether at approximately the time of the alleged offense, for which an accused is being tried, he engaged in other similar acts, such testimony being relevant in order to show that the accused was not a victim of zealous officers. Sauvain v United States, 31 F2d 732 (CA8th Cir) (1929). We are unimpressed by the fact that the accused admitted in a pretrial statement that he had previously made “at least two buys in Los Angeles.” Such evidence is an insufficient substitute for a showing that Government agents had reasonable grounds to suspect the accused prior to the instant offense. We have no intention of derogating in the least from our previous holding that law enforcement officials may smooth the path of one intent upon the commission of a crime and afford him “ample opportunity to rush to his own destruction.” United States v Buck, 3 USCMA 341, 12 CMR 97. Neither do we wish to retreat from the well-recognized principle that Government agents may properly use decoys, set traps, “or engage in other stratagems and forms of trickery” in order to apprehend law violators. United States v Hawkins, 6 USCMA 135, 19 CMR 261. This case, however, presents a woeful tale of a miserable addict turned informer, who was permitted, without proper guid293 anee or instruction by Government agents, to indiscriminately solicit and induce fellow Marines to commit serious criminal offenses. In exchange for rendering these “professional services” he was able to obtain separation from the service without being eourt-martialled for his own narcotics offenses. To permit the Government to enter upon such a disgraceful “fishing expedition” with such poor bait is too well calculated to bring military law enforcement into contempt and disrepute. We are not prepared to sanction principles which must lead to such results. The decision of the board of review is reversed. .The findings of guilt as to the offense of wrongful possession of marihuana is set aside and the same is ordered dismissed. The record of trial is returned to The Judge Advocate General of the Navy for reference to a board of review for reassessment of sentence as to the remaining approved findings of guilt. Chief Judge Qüinn concurs. Footnotes [1] Further illustrations of “Agent Dooley’s modus operandi” may be gleaned from our recent decision in United States v Ciarletta and Martin, 7 USCMA 606, 23 CMR 70. There, the accused, as in the instant case, were convicted of narcotics offenses. The Court in its decision noted that both “Ciarletta and Dooley smoked some of the drug that evening, and Martin shared their experience the following day.” The offenses allegedly committed in the case at bar occurred less than two weeks after those committed by Ciarletta and Martin. Dooley testifying by deposition in the present case— following his administrative discharge from the service — was asked several [289] times whether he had ever used marihuana during 1955 and 1956. He answered each time in the negative. [2] A marihuana cigarette stub in narcotics’ vernacular. [3] Ironically enough, Dooley himself had been arrested after having been “fingered by an informant.”