*1 FEINBERG, (concurring): Circuit issue, I concur in the appealability
On the merits, join majority On the
result.
opinion. America, Appellee,
UNITED STATES of BROWN,
Ralph Defendant-Appellant.
No. Docket 76-1142. Appeals,
United States Court of
Second Circuit.
Argued July
Decided Nov. Bamberger,
Phylis Federal De- Skloot Unit, fender Services The Legal Aid Socie- ty, City (William Gallagher, J. New York Unit, Legal Federal Defender Services Society, City, counsel), Aid York New appellant. Block, Atty.,
Ira H. U. Asst. S. D.S. N. City (Robert Y., Fiske, Jr., York B. New U. Davis, Frederick T. Atty., S. Asst. U. S. Y., City, D. N. New York Atty., S. of coun- sel), appellee. *2 MESKILL, the bar business. Brown and helped Smith and WATERMAN Before purchase Davis and BARTELS, approximately Gordon District and Judges, Circuit $1,400 ounce heroin one of for from an
Judge.* trial, source. At unidentified Brown testi- Judge: MESKILL, Circuit promised that Davis Gordon fied had any him in drug to involve further judgment a of from appeal an is This When the transaction was transactions. jury in the trial entered conviction Gordon told Brown complete, that he might for South- District Court States in few for days be back three York, Irving Ben Coo- New of ern District and, ounces, Gordon, according more to indictment. J., upon two-count per, responded up that he could handle Brown appellant, Ralph charged the One Count kilogram. one Smith, John a/k/a Brown, Arthur and one 15th, to the Grand and others unknown “Kayo,” January met On Davis and Gordon conspiring to violate federal complain with Brown and Smith to Jury, with charged Two laws. Count had received less than the full they narcotics ounce distributing, paid. had pos- they of for which Brown disclaimed offense substantive distribute, approxi- but stated that he had anoth- responsibility, with sessing intent supply superior er who could heroin source of one ounce heroin. mately $2,500 Brown, per According ounce. to the pleaded guilty Defendant Smith and Gordon told him on Janu- when Davis in charge and he is not involved helped the heroin he them ary 15th that Appellant Brown was convict- appeal.1 this ounce, was less than a full he purchase acquitted conspiracy charge and ed of help as a trick to him to perceived this force charge. The issues the substantive of money lost on up shortage. make appeal involve the trial on this raised to “play that he decided Brown testified concerning instructions to court’s Jersey. he could return along” until to New 23rd, January Brown and Smith at- On Brown is the case are these: facts of The Gordon, purchase heroin for but tempted City, Jersey, Atlantic New a resident of attempt proved unsuccessful. early in to New visit came York who Thus, doing everything admitted Brown York, in New of 1975. While did, government said but defended Davis, an by Morris was contacted Brown ground that he lacked the on the who, years, of unbe- family friend old either rea for offense. He claimed mens Brown, government in- was a knownst to entrap- Davis’ entreaties amounted at that Da- claimed trial Brown formant. ment, jury apparently agreed, and the purchase helping into him him vis talked him of the substantive acquitted offense. enough Davis could obtain so that drugs respect to the conspiracy, With he defended in a to invest bar. money ground that up on the including met Brown and Smith On events was a victim of Gordon, an Carliese under- Davis and and thereafter with he did in- Agent Drug Enforce- Special illegal purposes to further cover tend Davis introduced because he was merely “playing Administration. ment partner along.”2 future in convicted his friend and Since Brown Gordon * Although York, sitting by counsel defense took the District of New somewhat Eastern theOf simplistic position in his summation designation. only issue, was the we cannot trying charge against appar- simple to make Smith fault counsel for the case substantive 1. The was, fact, jury. ently open There with the di- for the evidence from remains accordance Cooper could have concluded the time of sentenc- at rection testified, lacked intent. Brown so Brown ing. testimony was corroborated some his extent by no fact that on 23rd he contends drove 2. The Agent for Brown’s contention locations Gordon without the record different basis obtaining any disagree. heroin. lack intent. We was did, he to that that we conspiracy, appear it is count telling to be the jury to find our attention. that there had been no entrapment. turn Defense counsel stated that inasmuch Judge Coo- entrapment portion of of the conspiracy heart pur- was the substantially as to the per’s *3 chase of on January heroin the de- counsel, and neither requested by defense entrapment applied fense of to both counts any objected portion of the counsel equally, suggesting jury that if the believed two and one-half hours of charge. After Brown’s defense their verdict however, deliberation, the sent the fol- should be not guilty as to both counts.5 court: lowing note listening sides, After both and before Is entrapment conspiracy?3 a defense for recalling the jury, Judge Cooper said, e., I. if we feel there was Gentlemen, I you thank for the efforts necessarily it follow we does that must you that have apparently expended but I partnership since no acquit on conspiracy say that must unless am entirely wrong, have been formed were it not for would missed you have . . point. this “deal.” you of have Both overlooked it. charges completely separate?4 Are these Entrapment can be asserted where query The court answered the contained has been an admission doing of last sentence of by saying the note act. The proof here is that the defendant conspiracy charge that substan- admitted substantive but cre- [the count] charge separate were tive offenses and that ated the defense of He de- jury’s responsibility it was to render a conspiracy; nied the he never admitted as to each. The verdict court also asked the clarify rewrite the note so jury to as Following statement, defense counsel meaning of the word “deal.” Later that asserted that Brown had admitted “doing day, sent second explaining note every single thing almost the Government “deal” meant the “initial conversation asked,” requested and he that if the Judge Morris between Brown.” The [Davis] charge planned to as indicated that he also attorneys directed both to consider charge that Brown admitted the conspiracy. and, that evening matter on the follow- Judge Cooper declined charge to so morning, to ing response recommend a his recollection was to the contrary, and he jury’s questions. to leave question decided of admission day, question The next of fact for the expressed jury. as recalled, then Judge concern that en- was Cooper its confused charged as follows: inducement, trapment with mere re- charge clarify that would quested undoubtedly general You got the impres- judge my between them. The de- distinction sion from as to that, ground to so if he that it is a clined defense raised person where a counsel, Judge Cooper When read the upon quot- 3. note to seem that a based question language first “Is he stated the follows: ed from Sherman would have been conspiracy?” appropriate. defense for Since variant, contain the both briefs same we use in the briefs. the version 5. While defense counsel was correct so far as went, analysis incomplete. His underlying theory appears analysis 4. The of note was limited to the events of be that the events 14th and the possibility and he failed account for the subsequent jury might 14th events “were not conclude that the initial subsequent independent justify acts to the inducement did not Brown’s continued part course of conduct which was but involvement 14th. Even under Sherman, product supra, of the inducement.” Sherman Unit- would have to find 819, 822, 369, 374, subsequent “part ed 356 U.S. 78 S.Ct. events were of a (1958). product are 2 L.Ed.2d Reluctant we course of conduct which was the court, second-guess defense counsel or the inducement.” Id. at at S.Ct. effect, Did the yes, you defendant admit what says in are with a crime charged of, that he conspire, convinced did steps spell out the all those did do charge has been sustained in 1? Count you to know crime but want doing of a entrap- Well, to add the defense you apply entrap- I want you are ment. ment and satisfied from the to- tality of the evidence that he was en- Hence, when is that satisfied, out, you And if trapped? you the stand heard his testimo- went on acquitted Count and what what he admitted ny, you heard pick you up Then Count 2 and ask be some There seems to disa- he denied. yourselves what about this? The us as to greement between whether or must be us what elements estab- told conspir- admitted the not the defendant *4 lished, each of which must be established acy. It is clear that he admitted the to 2. a reasonable doubt as Count beyond second count. trapment thing, spiracy, If you conclude [*] only when he admits he did it. then if a [*] because you man denies that he admitted [*] apply you [*] don’t he did some- [*] apply [*] con- en- that must doubt as Are have to ask beyond admitted Count Suppose we satisfied a reasonable you to each be yourselves whether or not he decide proven one of beyond in doubt, you you Count those elements a reasonable we are 2? satisfied don’t all testimony A agreed may equally defendant’s to effect he You did. regard the crime cannot to 1. that he did not commit convinced with Count entrapment. is an issue of That raise now, considering in Count 2 it is But you. again: I it charging repeat law am case, deal, prop- another another another osition, separate act. It is another anoth- he A claim the effect that defendant’s you using er matter that can consider commit the crime cannot raise an did not evidence, of course. same entrapment. issue of pick you up again So that whole record ¡fes}:**** stipulations pick up again all the and and Now, that he did suppose you conclude everything in pick up the total record conspired. Then admit and, including Judge’s charge again, entrapment you apply defense you say, beyond am convinced reason- count applied it in second on way you that he committed Count 2? able doubt agreed are all that he did admit we you say yes? you go Then Suppose committing that act doing or substantive question, entrapment? what about If says But admit charged Count you that the defendant was are convinced entrapped. I was it but regard entrapped to Count out see, goes in essence can you the case. Don’t by you as defense each be considered convinced, you If are not you then disre- separately? count gard what he asserts as to to Count you example, decide that he Suppose, may, instance, that he admitted the essence You did admit find Then he entitled as to one count and not conspiracy. as to the other . record, every- the whole trial You take completion Upon supplemental of this you, stip- before happened thing Cooper charge, himself that satisfied exhibits, else, ulations, everything individually understood in- jurors 1 did decide on Count jurors’ inquiries and con- structions satisfactorily establish the in the Government note had been tained conspiracy, beyond a reason- After the returned de- Count answered. liberate, Judge Cooper asked counsel for able doubt?
H59 regarding charge. Sylvia comments (1st F.2d 145 government said was satisfied. Defense Cir.), denied, cert. 374 U.S. 83 S.Ct. counsel said was “concerned about 10 L.Ed.2d (1963), upon which indication there is some doubt in the relies. Entrapment related as well as here Circuit about whether or not agreement the initial purchase there is an admission to [conspiracy] drugs the major events of count.” Lack of intent, on the oth hand, er related to subsequent events later, Two one-half hours when Brown made promises, allegedly with finding returned a verdict the defendant intending out perform. Since these de guilty not guilty related fenses periods, different time Appellant substantive offense. claims on they were not inconsistent. Brown neither this appeal that the supplemental charge on admitted nor denied the entire conspiracy. entrapment was pre- so defective that He admitted the conspiracy up to and in defenses, cluded a fair evaluation of his cluding the events of the and he as thereby depriving him a fair trial. We serted He denied that he pos agree. sessed intent after the 14th why In order understand merely because he was “playing along” un defective, necessary it is to first under- til he could return to New Jersey. Cooper the reason Judge gave stand it. logical inconsistency *5 There is a the Brown between was entitled to charge aby simultaneous assertion defendant that would preclude which not the from he did not commit a considering crime that he was both defenses. Judge Cooper entrapped committing into question it. The Circuits left the of Brown’s admission of split the over issue of whether conspiracy a defend- the by determination the permitted ant should be to make an such jury. Consequently, Judge Cooper’s charge Swiderski, See assertion. United v. States led the believe that the defense of (2d 1976). F.2d at 859 n. 4 539 Cir. entrapment could be considered if they has not decided yet This Circuit the issue. found that Brown admitted conspiracy that Id. Since Brown denied he lacked the in This toto. misleading, was for it failed intent for be- conspiracy mental to allow the to consider Brown’s par cause merely “playing along” he was tial admission partial an denial: admis Judge Cooper that concluded sion of the actus rea and a denial of the conspiracy he had denied the and therefore mens rea. Inasmuch as Brown denied that necessary found it to decide whether Brown he intended to further the illegal purposes should be claim entrapment. also allowed to conspiracy after January He decided that Brown should not. For thought must have that it could not follow, reasons that we conclude that consider entrapment at all respect Cooper’s misplaced, concerns were and that conspiracy. to the That simply was incor open Swiderski, he decided issue left in Although rect. defense counsel failed to unnecessarily. supra, Consequently, is- charge request spelling out both defenses may deny sue of whether conspiracy count, to the the supplemental commission of a crime he and assert that charge given was plain error and highly entrapped committing into was it need not prejudicial to Brown’s defense. Conse decided in the case and remains be instant quently, judgment of conviction must open question an in Circuit. this be reversed. Brown, upon by
The two defenses relied also Brown claims that the trial judge intent, entrapment and lack of related to error omitting committed in charge events occurring in two distinct and differ- doubt reasonable and the proof burden of periods ent of time entrapment. within life of they relate Judge Cooper They are not addressed agreed give had the requested charge, single episode criminal as was the in case but omitted it unintentionally. In view of 1160 with the case, culty charge is that the district we need this disposition of our. in adopted Sylvia court the rule v. was reversible United omission whether the decide States, supra, prohibits trial, which a defendant any, there new if At Brown’s error. asserting simultaneously will the inconsist- court from that reason to believe no or alternate defenses that ent he did its omission.
repeat the crime and if he did commit commit a new trial. and remanded Reversed crime, entrapped. was Under Judge Cooper required charge rule Judge (concurring): BARTELS, District could not to re- majority’s decision concur in the interposed unless the defendant first admit- reason. another but for verse conspiracy. Although ted the defend- Judge Cooper com not believe I do conspiracy did admit the ant from supplemental plain error mitted 1 to did not admit the con- preventing consid jury, thus charge to the from 14 to spiracy February 15. I toas of the eration majority am troubled with the conclusion count period of first plain resulted when error the district find admitted. jury might Brown which conspiracy charge did not divide the court with the con agree defendant’s can Nor periods distinct time two within the into neglected court the district tention life the the sufficiently as to reasonable jury that were different defenses they of proof burden doubt periods. the two applicable I find noth- reverse not relate ing in the court’s required specifics above mentioned find that jury to defendant admitted charge but because supplemental conspiracy during periods, e., both i. Sylvia adopted rule of court district toto, they could consider before the defense Cir.), (1st F.2d 147 312 at all. The simply denied, 374 U.S. S.Ct. cert. the conspiracy admit- stated to be (1963), prohibiting inconsistent L.Ed.2d ted before defense of could *6 the of of denial of alternate defenses considered. be of interposition time and at the same fense beginning charge, At the of the main the entrapment. the defense of clearly that the district stated to prove would have intent to Government of Plain Error First Claim conspire beyond a reasonable doubt before the defendant’s first claim support of In jury could find a verdict guilty, of and error, majority asserts that plain of naturally such an intent to apply would defenses, (i) entrap- interposed two Brown periods both It does not intent, ment, (ii) relating to lack of that would jury follow have inferred within the life of periods time distinct charge that if given they from the failed to being 1 to first conspiracy, conspire an admission to to the find being the second they were period, prevented latter then 15,1975. that since February agree 14 to considering entrapment the defense from peri- time related to different defenses during period they the former even found if inconsistent, I fur- they were not conspiracy ods that admitted to a entitled agree that “Brown was period. ther during that The majority assumes jury preclude not charge which would the defendant did that since not admit I believe considering both defenses.” from 14 conspiracy after must charge. I find it diffi- thought charge received such they from the have supple- agree entrapment to that the district court’s not consider Janu- cult could before believe But charge ary “led to this conclusion cannot neces- mental be con- sarily simply Judge defense of could be inferred because fragment ad- only they charge found that Brown not on if did sidered periods. The diffi- two different toto.” into do not believe mitted
1161 impression par- respect received this with period the first it was un ticularly since the district court stated in likely the jury would find lack of in part: tent for period. the second In this context appear you good conclude he admitted the
“If be defense tactics you emphasize conspiracy, apply then respect with period. apply don’t en- entire As Lumbard stat a man ed in trapment if denies did some- United Stallings, States v. 273 F.2d thing, (2d 1960), when 742 Cir. he admits he did it.” quoting Edwards v. 265 F.2d (6th 910 Cir.), my charge view did not In foreclose denied, cert. 361 U.S. 80 S.Ct. 4 option finding jury’s “ (1959), L.Ed.2d 83 ‘There is no warrant period any defense available con- relieving . the accused of the spiracy its entirety. less than The majority consequences of what appears to have been that in view of testimony observed Brown’s planned defense stratagem, by the device concerning conspiracy January 14, condemning as ‘clear error’ of the trial thought jury must have could “the seemingly court a calculated risk of defense at not consider all with counsel which happened not to achieve the impossible to the It respect conspiracy.” is ” intended result with jury.’ Here, evaluate what factors entered into the error, even if plain there were no jury’s compelled verdict. The warrant relieve the defendant of his particularly Brown to believe since his testi- counsel’s calculated risk. that he was mony “playing along” appears incredible in view of his admission of Second Claim of Plain Error event, period. any intent to the first In no find merit power to bring “the has the ver- defendant’s second plain claim of facts,” error in in the teeth of law the trial dict both court’s alleged omission Horning Columbia, charge v. District of U.S. reasonable doubt and on the 135, 138, 53, 54, burden of (1920) proof 65 L.Ed. relating S.Ct. entrapment. pertinent (Holmes, J.), portion if it has been misled. reads as follows: Referring to failure of the court to “Now, as to proof the burden of on the respect periods to two different issue of If you should find conspiracy, defense counsel nei- within there is some enducement, evidence of requested object- ther divisible nor then the has the burden of supplemental ed to court’s indivisible proving that such inducement was not Instead, charge. defense counsel concen- *7 the cause or creator of the crime. In in his trated summation on the words, other the government prove must making no mention of the issue defendant’s that this ready defendant was and willing of the or lack intent dif- charged. commit the offense I Have now ferent defenses asserted. Now that a made that clear? repeated have guilty has verdict been obtained defense forwards, backwards and idea, the same counsel for the first time talks about the important but get it. periods two different plain and claims er- Again, say encouraged am by the Indeed, requested ror. defense counsel your' nodding heads spontaneously and court admit- that satisfies me that I need not dwell on conspiracy, ted entire thus impliedly further.” consenting necessity there was no charge specifically peri- as to different It is true that there is an omission of the within the phrase “beyond ods It is hard to a reasonable doubt” with the conclusion escape that counsel deliber- reference the burden of proof in this chose ately approach part instance, of the but the court throughout strategy realizing of defense that after the again again mentioned that the conspire defendant’s admission of intent prove must its case beyond a 1162 doubt doubt, there is little
reasonable quantum understood did counsel required. Defense
proof again waited but omission
object to the issue. appeal to raise
Conclusion problems beginning, the at the
As noted are court’s trial
arising from the adoption rule its by primarily
caused States, and the supra, v. United Sylvia v. cited in United States Swid cases
other 1976), (2d4 859 n. Cir.
erski, F.2d 539 or alternate defens inconsistent
prohibiting majority, in this Cir by stated As
es. open, to remain question continues
cuit Swiderski, and it supra, States v.
see predict for me to presumptuous will the Circuit of the two standards adopt. Nevertheless, since I can should stated in reversal for reasons concur inap majority, I do not believe it is
by the upon for reversal for me to vote
propriate alternate inconsistent or ground trial permissible and that
defenses permitted have the same under should in Hansford v. United set forth rule F.2d
States, U.S.App.D.C. 303 112 F.2d 262 (1962); Crisp v. United 1958); and Scriber v. United (4th Cir. (6th 1925).
States, 4 F.2d Cir. America, Appellee, STATES
UNITED CRUZ, Appellant.
Nelson 343, Docket 76-1337.
No. *8 of Appeals, States Court Circuit.
Second
Argued Oct. Nov. Decided City Benjamin Zelermyer, New York Paul, Beiley, & New
(Morrison, Stillman City), appellant. York Atty., Asst. Bentley, R. U. S. New Allen Fiske, (Robert Jr., Atty. City B. U. S. York