ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Cr. No. 73-183.
Hastie, Gibbons and Weis, Circuit Judges. Weis, Circuit Judge, dissenting.
In the district court, sitting without a jury, the Appellant, Gary West, was tried and convicted on three counts on an indictment. Count 1 charged unlawful distribution of about 9 grams of heroin on January 23rd. Similarly, count 2 charged the distribution of about 7 grams on January 25th. Count 3 charged knowing possession of about 4 grams of heroin on January 29 with intent to distribute. West was sentenced, "under counts 1, 2 and 3" generally, to imprisonment for a period of five years with particular provisions concerning parole.
To establish its case the government introduced testimony by Herbert Laguins that he had purchased heroin from West in the amounts and at the times set out in counts 1 and 2. Concerning count 3, two arresting officers testified that on January 29, pursuant to a telephone call in which Laguins had informed them that West was on his way to meet Laguins and sell him two bundles of heroin, they intercepted West en route and found two bundles of heroin in his car.
Laguins was a police officer, working undercover and assigned to purchase narcotics from and thus obtain evidence against unlawful sellers. Beyond testifying about the above outlined transactions, Officer Laguins also acknowledged that a Robert Chieves had introduced him to West in the following circumstances. Chieves had been arrested, apparently on a narcotics charge. "Pursuant to that arrest", according to Officer Laguins' testimony, he arranged with Chieves that Chieves would introduce him to other illicit vendors from whom he could purchase narcotics. Thereafter, Chieves introduced Laguins to West. At that time Chieves and West together proposed to Laguins that they would provide him with five bundles of heroin, weekly or at more frequent intervals. They proposed further that this be done on consignment with Laguins paying them an agreed price for each consignment after he had resold the heroin. The next consignment would then be delivered to him. Laguins agreed to this proposal and Chieves and West delivered a first consignment to him on January 19. Shortly thereafter, he paid for this and on January 23 received another consignment for which he paid before receiving a third consignment on January 25th. West was arrested on January 29 while allegedly en route to deliver another consignment to Laguins.
All of this appears from the case for the prosecution. Most of it was confirmed, but also explained and amplified, by testimony of the accused West in his defense. He and Chieves were old friends. Chieves, learning that West was in serious need of money, approached him and proposed that they join in a scheme of selling fake or "overcut" heroin on consignment to Laguins, an acquaintance of Chieves. Chieves, who already was in trouble with the law, would supply the heroin and establish contact with a buyer but wanted West to hold himself out as the seller. They would divide the profits.
West testified further that he was regularly employed by the City of Philadelphia as a truck driver and that he had never had any part in the narcotics traffic before Chieves persuaded him to join in the scheme which was to be his undoing. At this point it is noteworthy that, in the course of concluding argument, the prosecutor, with commendable candor, conceded that West had no history of past participation in the narcotics traffic. And this is strongly, if inferentially, confirmed by the fact that he had been allowed to sign his own bond for release after indictment and pending trial.
This case is unusual in that the uncontradicted evidence shows a confederation of two government agents, one an informer who, according to uncontradicted testimony, actually supplied the narcotics in question and the other an undercover officer who, as prearranged with the informer, bought this contraband from the accused third person whom the informer had persuaded to join with him in a selling venture.
In two recent cases, both remarkably similar to this case, the Court of Appeals for the Fifth Circuit has held that a conviction may not be founded on a sale of narcotics which a government informer had supplied to the accused for sale to an undercover agent. United States v. Bueno, 1971, 5th Cir., 447 F.2d 903; United States v. Mosley, 1974, 5th Cir., 496 F.2d 1012. In our view these decisions are sound. Frequently, it is permissible law enforcement practice for an undercover agent to obtain evidence of unlawful traffic in narcotics by purchasing heroin from a suspected drug peddler. But when the government's own agent has set the accused up in illicit activity by supplying him with narcotics and then introducing him to another government agent as a prospective buyer, the role of government has passed the point of toleration. Moreover, such conduct does not facilitate discovery or suppression of ongoing illicit traffic in drugs. It serves no justifying social objective. Rather, it puts the law enforcement authorities in the position of creating new crime for the sake of bringing charges against a person they had persuaded to participate in wrongdoing. It was this evil of law enforcement officers instigating a criminal act by persons "otherwise innocent in order to lure them to its commission and to punish them" that led the Supreme Court to its first reversal of a conviction on the ground of entrapment. Sorrells v. United States, 1932, 287 U.S. 435, 448, 77 L. Ed. 413, 53 S. Ct. 210.
The recent decision of the Supreme Court in United States v. Russell, 1973, 411 U.S. 423, 36 L. Ed. 2d 366, 93 S. Ct. 1637, upon which the government relies, does not sanction what the government agents did in this case. In Russell, an undercover government agent, having good reason to believe that a suspect was engaged in an ongoing enterprise of unlawfully manufacturing and selling certain restricted drugs, supplied the suspect with a lawfully obtainable but scarce chemical ingredient for use in the illicit manufacture. The Supreme Court held that this governmental conduct did not preclude conviction of the manufacturing seller. The opinion emphasized that the accused "was an active participant in an illegal drug manufacturing enterprise which began before the Government agent appeared on the scene, and continued after the Government agent had left the scene". 411 U.S. at 436. In these circumstances a majority of the Court did not view the nature or extent of the government agent's assistance to the manufacturing enterprise as intolerable. And as concerned predisposition, the evidence was overwhelming. We find no suggestion or implication that the legal result would have been the same if the accused had not already been engaged in the illicit traffic or if the government agent had supplied him with contraband drugs rather than lawful articles of commerce.
While we view West's case as one of intolerable conduct by government agents, one supplying and the other buying the narcotics, the same result is reached if the entrapment aspect of this case is analyzed as depending solely on the predisposition of West to engage in illicit drug traffic. The government argues that the series of sales made by West during the latter part of January, the first predating the transactions for which he was indicted, shows predisposition. But if, as the evidence indicates, these four transactions among the same three people within a ten day period were all part of a scheme proposed by a government agent, the relevant predisposition is West's attitude on January 19, just before the government agent enlisted his participation in the venture. Certainly, the fact that he was not indicted for his first sale in implementation of the informer's plan does not make that sale evidence that he was already engaged in the drug traffic or merely awaiting an opportunity to do so. West's conduct undoubtedly reflects unfavorably upon his strength of character, but it does not establish a prior inclination to engage in this evil business. And the evidence that he was and for a considerable time had been regularly employed as a municipal truck driver, the prosecution's concession that he appeared to be a first time offender and the fact that, after his arrest, it was deemed appropriate to release him on his own recognizance all point the other way.
We have not overlooked the fact that West's own testimony was the only evidence of the source of the heroin or the way in which Chieves enlisted him in the enterprise. There was, however, Laguins' testimony indicating that he had recruited Chieves, a charged offender, to find other persons from whom he might purchase drugs. Certainly, these circumstances lend ...