ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Crim. No. 79-161)
Before Gibbons and Rosenn, Circuit Judges and Weber,*fn* District Judge.
This matter is before the original panel of the Court on a grant of rehearing from its decision of November 25, 1980.
This is an appeal from a criminal conviction on five counts of distribution of narcotics. Appellant contended at trial that a government informant had induced him to arrange narcotics sales to two government agents. This appeal raises the question of the admissibility and proper use of expert psychological testimony in an entrapment defense to establish a defendant's unique susceptibility to inducement. Because the District Court misapprehended the nature of the offer of proof and applied too restrictive a view of such offered evidence resulting in the practical exclusion of the testimony of appellant's proffered expert witness, we reverse and remand for a new trial.
Appellant, an individual of alleged subnormal intelligence, was employed as a clothing salesman at Krass Bros. in Philadelphia. In February of 1979, he was approached by Ian Daniels, an FBI informant, who inquired about making a heroin buy and locating a source. Hill rebuffed Daniels' initial requests, but the informant persisted in making additional contacts and requests over the following month, and Hill relented.
On March 13, 1979, Daniels and a federal agent made a heroin purchase from Leonard Newton, an acquaintance of Hill. Appellant arranged, and was present at, the sale. Additional sales to government agents were arranged by Hill and made by the source, Newton, on March 14, and 29, April 23, and June 12, and 18, 1979.
Appellant was indicted on one count of conspiracy and six counts of distribution of heroin. Hill's only defense was entrapment, arguing that the informant Daniels had induced him to procure drugs for the government agent.
This defense requires admission of guilt of the crime charged and all of its elements, including the required mental state. United States v. Watson, 489 F.2d 504 (3d Cir. 1973).
Following its deliberations, and supplemental instructions from the court, the jury returned with a verdict of not guilty on the conspiracy count and the first distribution count, but guilty on the remaining five distribution counts. The jury evidently accepted the defense of entrapment as to the conspiracy count and to the first substantive count. The jury was evidently concerned about the entrapment defense because they returned to ask the court two questions, interpreted by the trial judge as asking essentially whether if they found that there was entrapment as to any one count there was of necessity entrapment as to all the other counts. The court's additional instructions were that if the government had not carried its burden with respect to a particular count, the jury must consider the other counts to determine whether this was a continuing course of conduct, or whether the defendant acted for other reasons than entrapment with respect to the other counts; and that a finding of entrapment as to one count did not necessarily require a finding of entrapment as to any other count.
During trial, the District Court refused to allow appellant to call an expert witness, a clinical psychologist, to testify to appellant's psychological characteristics, subnormal intelligence, and resultant susceptibility to persuasion and psychological pressure until after the defendant had testified.
In addition to barring the witness' immediate testimony the effect of the ruling was to impose a condition that the defendant waive his constitutional right not to testify.
Appellant contends that the District Court abused its discretion in imposing such a condition on the proffered testimony of the psychologist. The District Court concluded that because the expert witness had not heard the testimony of the informant or the defendant, no proper foundation had been laid for his testimony.
The offer of proof was somewhat confusing and may have led to its being misapprehended by the trial judge. It and the colloquy attending it are set forth in the record at transcript pages 6-3 to 6-12 (Appellant's Appendix 4A to 13A). The United States objected to the production of the witness under Fed.R.Crim.P. 12.2(b) for lack of the required notice. The United States also objected on the grounds of relevancy. The court's ruling, sustaining the government's objection, was based on the grounds that there was no foundation laid as to any opinion which the doctor could give as to the nature of any assertions made to Mr. Hill by the witness Daniels. The doctor was not in the courtroom when Mr. Daniels testified, and therefore would not be in a position to state anything, or give any opinion about the effect of whatever Mr. Daniels may have said to Mr. Hill. (Tr. p. 6-6). The court further added a condition that if the doctor remained in court and Mr. Hill testified, then the doctor might have some basis for examining testimony. "But right now he doesn't have any basis and I will refuse to permit the doctor to testify based on the present status of the record." (Tr. p. 6-9).
Thus we see that the trial judge did not absolutely bar the testimony proffered, but imposed a condition on it that the defendant Hill must testify first and the doctor remain in the courtroom to hear this testimony. The doctor who had been present in the courtroom for two days could not wait longer and departed. Hill did testify in his own defense.
The defendant offered the testimony of the clinical psychologist as to three matters:
(a) A complete profile from the records and tests of defendant which were examined by the witness;
(b) An opinion by the witness as to defendant's characteristics of susceptibility;
(c) An opinion by the witness as to the effect of the government informant's skill and cunning upon defendant's susceptibility.
The second and third items of testimony are not clearly distinguished in the offer and may well have contributed to the court's misapprehension of the nature of the offer. The trial court could properly have excluded testimony concerning the "skill and cunning" of the government informant because the expert had no opportunity to observe or evaluate this informant, either prior to trial or at trial. United States v. Caldwell, 178 U.S. App. D.C. 20, 543 F.2d 1333 (D.C.Cir.1974).
Federal Rules of Evidence 702 and 703 provide: