Dissenting Opinion
(dissenting):
In our amended opinion we remanded for a determination by the trial judge whether there was sufficient evidence of direct communication between Olga and William to permit the question of inducement of William to go to the jury. If there was not, the conviction should be affirmed. If there was, William should be given a new trial.
645 F.2d 1158, 1169 (2d Cir. 1980). I do not feel that the district judge by framing the issue as he did properly made the determination that this court asked of him. He framed the question as to whether there was sufficient evidence, aside from the mere fact that William and Olga were married, for the jury to infer that Olga, having been induced by Palacio to commit the crime, recited this inducement to William and that as a result he was induced to commit the crime. But what was required on remand, it seems to me, was not direct proof of communication — we could have decided that, and there was no such direct proof in the record — but, as appellant suggested to us in his petition for rehearing,
rather an assessment of whether the record, when examined in light of the established case law, revealed that there was a sufficiently corroborated inference to require presentation of the entrapment defense to the jury.
Thus I would remand a second time to Judge Nickerson for the evaluation that we asked rather than the determination that he made. As it is, our first opinion was an exercise in futility — what we said so much codswallop — though it has gained some commentary support. Note, Entrapment Through Unsuspecting Middlemen, 95 Harv. L.Rev. 1122, 1127-28 n.34, 1129 n.39, 1140 (1982).
I dissent.
Lead Opinion
On appellant’s original appeal, United States v. Valencia, 645 F.2d 1158 (2d Cir. 1980), this Court remanded to the district court for a determination “whether there was sufficient evidence of direct communication between [appellant’s wife and appellant] to permit the question of inducement of [appellant] to go to the jury.” Id. at 1169. The district court held that there was not, and appellant concedes there was not.
But appellant had never argued that there was direct proof that Olga communicated the informer’s inducements to him, and, in fact, no such direct proof appears in the record. (Appellant’s Brief at 12.)
Appellant argues that the marital relationship and cohabitation of appellant and his wife permit the inference that appellant knew of the informer’s inducements. The district court held that proof of the marital relationship was not enough and that there was no other proof that the Government’s inducements had been communicated to appellant.
Finding no error, we affirm.