Sherman v. United States, 356 U.S. 369 (1958)
Sherman v. United States
No. 87
Argued January 16,1958
Decided May 19, 1958
356 U.S. 369
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Syllabus
At petitioner’s trial in a Federal District Court for selling narcotics in violation of 21 U.S.C. § 174, he relied on the defense of entrapment. From the undisputed testimony of the Government’s witnesses, it appeared that a government informer had met petitioner at a doctor’s office where both were being treated to cure narcotics addiction, the informer asked petitioner to help him to obtain narcotics for his own use, petitioner seemed reluctant to do so, the informer persisted, and finally petitioner made several small purchases of narcotics and let the informer have half of each amount purchased at cost plus expenses. By prearrangement, other government agents then obtained evidence of three similar sales to the informer, for which petitioner was indicted. Except for a record of two convictions nine and five years previously, there was no evidence that petitioner himself was in the trade, or that he showed a "ready complaisance" to the informer’s request. The factual issue whether the informer had persuaded the otherwise unwilling petitioner to make the sale or whether petitioner was already predisposed to do so and exhibited only the natural hesitancy of one acquainted with the narcotics trade was submitted to the jury, which found petitioner guilty.
Held: on the record in this case, entrapment was established as a matter of law, and petitioner’s conviction is reversed. Pp. 370-378.
(a) Entrapment occurs only when the criminal conduct was "the product of the creative activity" of law enforcement officials. P. 372.
(b) The undisputed testimony of the Government’s witnesses established entrapment as a matter of law. P. 373.
(c) Although the informer was not being paid, the Government cannot disown him or disclaim responsibility for his actions, since he was an active government informer who was himself awaiting trial on narcotics charges, for which he was later given a suspended sentence. Pp. 373-374.
(d) It make no difference that the sales for which petitioner as convicted occurred after a series of sales, since they were not independent acts subsequent to the inducement, but were part of a course of conduct which was the product of the inducement. P. 374.
(e) The Government cannot make such use of an informer and then claim disassociation through ignorance of the way in which he operated. Pp. 374-375.
(f) The evidence was insufficient to overcome the defense of entrapment by showing that petitioner evinced a "ready complaisance" to accede to the informer’s request. Pp. 375-376.
(g) This Court adheres to the doctrine of the Court’s opinion in Sorrells v. United States, 287 U.S. 435, and declines to reassess the doctrine of entrapment according to the principles announced in the separate opinion Mr. Justice Roberts in that case, such issues not having been raised by the parties either in this Court or in the lower courts. Pp. 376-378.
240 F.2d 949 reversed, and cause remanded.