# Sherman v. United States (356 U.S. 369)/Opinion of the Court

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United States Supreme Court
356 U.S. 369
Sherman v. United States (356 U.S. 369)
Argued: Jan. 16, 1958. --- Decided: May 19, 1958
Mr. Chief Justice WARREN delivered the opinion of the Court.
The issue before us is whether petitioner's conviction should be set aside on the ground that as a matter of law the defense of entrapment was established. Petitioner was convicted under an indictment charging three sales of narcotics in violation of 21 U.S.C. § 174, 21 U.S.C.A. § 174. A previous conviction had been reversed on account of improper instructions as to the issue of entrapment. 2 Cir., 200 F.2d 880. In the second trial, as in the first, petitioner's defense was a claim of entrapment: an agent of the Federal Government induced him to take part in illegal transactions when otherwise he would not have done so.
In late August 1951, Kalchinian, a government informer, first met petitioner at a doctor's office where apparently both were being treated to be cured of narcotics addition. Several accidental meetings followed, either at the doctor's office or at the pharmacy where both filled their prescriptions from the doctor. From mere greetings, conversation progressed to a discussion of mutual experiences and problems, including their attempts to overcome addiction to narcotics. Finally Kalchinian asked petitioner if he knew of a good source of narcotics. He asked petitioner to supply him with a source because he was not responding to treatment. From the first, petitioner tried to avoid the issue. Not until after a number of repetitions of the request, predicated on Kalchinian's presumed suffering, did petitioner finally acquiesce. Several times thereafter he obtained a quantity of narcotics which he shared with Kalchinian. Each time petitioner told Kalchinian that the total cost of narcotics he obtained was twenty-five dollars and that Kalchinian owed him fifteen dollars. The informer thus bore the cost of his share of the narcotics plus the taxi and other expenses necessary to obtain the drug. After several such sales Kalchinian informed agents of the Bureau of Narcotics that he had another seller for them. On three occasions during November 1951. Government agents observed petitioner give narcotics to Kalchinian in return for money supplied by the Government.
At the trial the factual issue was whether the informer had convinced an otherwise unwilling person to commit a criminal act or whether petitioner was already predisposed to commit the act and exhibited only the natural hesitancy of one acquainted with the narcotics trade. The issue of entrapment went to the jury, and a conviction resulted. Petitioner was sentenced to imprisonment for ten years. The Court of Appeals for the Second Circuit affirmed. 240 F.2d 949. We granted certiorari. 353 U.S. 935, 77 S.Ct. 812, 1 L.Ed.2d 758.
In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, this Court firmly recognized the defense of entrapment in the federal courts. The intervening years have in no way detracted from the principles underlying that decision. The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, 'A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.' 287 U.S. at page 442, 53 S.Ct. at page 212. The stealth and strategy become as objectionable police methods as the coerced confession and the unlawful search. Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.
However, the fact that government agents 'merely afford opportunities or facilities for the commission of the offense does not' constitute entrapment. Entrapment occurs only when the criminal conduct was 'the product of the creative activity' of law-enforcement officials. (Emphasis supplied.) See 287 U.S. at pages 441, 451, 53 S.Ct. at pages 212, 216. To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal. The principles by which the courts are to make this determination were outlined in Sorrells. On the one hand, at trial the accused may examine the conduct of the government agent; and on the other hand, the accused will be subjected to an 'appropriate and searching inquiry into his own conduct and predisposition' as bearing on his claim of innocence. See 287 U.S. at page 451, 53 S.Ct. at page 216.
We conclude from the evidence that entrapment was established as a matter of law. In so holding, we are not choosing between conflicting witnesses, nor judging credibility. Aside from recalling Kalchinian, who was the Government's witness, the defense called no witnesses. We reach our conclusion from the undisputed testimony of the prosecution's witnesses.
It is patently clear that petitioner was induced by Kalchinian. The informer himself testified that, believing petitioner to be undergoing a cure for narcotics addiction, he nonetheless sought to persuade petitioner to obtain for him a source of narcotics. In Kalchinian's own words we are told of the accidental, yet recurring, meetings, the ensuing conversations concerning mutual experiences in regard to narcotics addiction, and then of Kalchinian's resort to sympathy. On request was not enough, for Kalchinian tells us that additional ones were necessary to overcome, first, petitioner's refusal, then has evasiveness, and then his hesitancy in order to achieve capitulation. Kalchinian not only procured a source of narcotics but apparently also induced petitioner to return to the habit. Finally, assured of a catch, Kalchinian informed the authorities so that they could close the net. The Government cannot disown Kalchinian and insist it is not responsible for his actions. Although he was not being paid, Kalchinian was an active government informer who had but recently been the instigatory of at least two other prosecutions. Undoubtedly the impetus for such achievements was the fact that in 1951 Kalchinian was himself under criminal charges for illegally selling narcotics and had not yet been sentenced. It makes to difforence that the sales for which petitioner was convicted occurred after a series of sales. They were not independent acts subsequent to the inducement but part of a course of conduct which was the product of the inducement. In his testimony the federal agent in charge of the case admitted that he never bothered to question Kalchinian about the way he had made contact with petitioner. The Government cannot make such use of an informer and then claim dissassociation through ignorance.
The Government sought to overcome the defense of entrapment by claiming that petitioner evinced a 'ready complaisance' to accede to Kalchinian's request. Aside from a record of past convictions, which we discuss in the following paragraph, the Government's case is unsupported. There is no evidence that petitioner himself was in the trade. When his apartment was searched after arrest, no narcotics were found. There is no significant evidence that petitioner even made a profit on any sale to Kalchinian. The Government's characterization of petitioner's hesitancy to Kalchinian's request as the natural wariness of the criminal cannot fill the evidentiary void.
The Government's additional evidence in the second trial to show that petitioner was ready and willing to sell narcotics should the opportunity present itself was petitioner's record of two past narcotics convictions. In 1942 petitioner was convicted of illegally selling narcotics; in 1946 he was convicted of illegally possessing them. However, a nine-year-old sales conviction and a five-year-old possession conviction are insufficient to prove petitioner had a readiness to sell narcotics at the time Kalchinian approached him, particularly when we must assume from the record he was trying to overcome the narcotics habit at the time.
The case at bar illustrates an evil which the defense of entrapment is designed to overcome. The government informer entices someone attempting to avoid narcotics not only into carrying out an illegal sale but also into returning to the habit of use. Selecting the proper time, the informer then tells the government agent. The set-up is accepted by the agent without even a question as to the manner in which the informer encountered the seller. Thus the Government plays on the weaknesses of an innocent party and beguiles him into committing crimes which he otherwise would not have attempted. Law enforcement does not require methods such as this.
It has been suggested that in overturning this conviction we should reassess the doctrine of entrapment according to principles announced in the separate opinion of Mr. Justice Roberts in Sorrells v. United States, 287 U.S. 435, 453, 53 S.Ct. 210, 217, 77 L.Ed. 413. To do so would be to decide the case on grounds rejected by the majority in Sorrells and, so far as the record shows, not raised here or below by the parties before us. We do not ordinarily decide issues not presented by the parties and there is good reason not to vary that practice in this case.
At least two important issues of law enforcement and trial procedure would have to be decided without the benefit of argument by the parties, one party being the Government. Mr. Justice Roberts asserted that although the defendant could claim that the Government had induced him to commit the crime, the Government could not reply by showing that the defendant's criminal conduct was due to his own readiness and not to the persuasion of government agents. The handicap thus placed on the prosecution is obvious. Furthermore, it was the position of Mr. Justice Roberts that the factual issue of entrapment-now limited to the question of what the government agents did-should be decided by the judge, not the jury. Not only was this rejected by the Court in Sorrells, but where the issue has been presented to them, the Courts of Appeals have since Sorrells unanimously concluded that unless it can be decided as a matter of law, the issue of whether a defendant has been entrapped is for the jury as part of its function of determining the guilt or innocence of the accused.
To dispose of this case on the ground suggested would entail both overruling a leading decision of this Court and brushing aside the possibility that we would be creating more problems than we would supposedly be solving.
The judgment of the Court of Appeals is reversed and the case is remanded to the District Court with instructions to dismiss the indictment.
Reversed and remanded.

## Notes

1 The charge to the jury was not in issue here.
2 'Q. And it was your (Kalchinian's) job, was it not, while you were working with these agents to go out and try and induce somebody to sell you narcotics, isn't that true?
'A. No, it wasn't my job at all to do anything of the kind.
'Q. Do you remember this question (asked at the first trial) . . . 'Q. And it was your job while working with these agents to go out and try and induce a person to sell narcotics to you, isn't that correct? A. I would say yes to that.' Do you remember that?
'A. If that is what I said, let it stand just that way.
'Q. So when you testify now that it was not your job you are not telling the truth?
'A. I mean by job that nobody hired me for that. That is what I inferred, otherwise I meant the same thing in my answer to your question.' R. 100.
3 'Q. But you had made a promise, an agreement, though, to cooperate with the Federal Bureau of Narcotics before you received a suspended sentence from the court?
'A. (Kalchinian). I had promised to cooperate in 1951.
'Q. And that was before your sentence?
'A. Yes, that was before my sentence.' R. 99.
Kalchinian received a suspended sentence in 1952 after a statement by the United States Attorney to the Judge that he had been cooperative with the Goivernment. R. 89, 98.
4 At one point Kalchinian did testify that he had previously received the same amount of narcotics at some unspecified lower price. He characterized this other price as 'not quite' the price he paid petitioner. R. 80.
5 It is of interest to note that on the first appeal in this case the Court of Appeals came to the same conclusion as we do as to the evidence discussed so far. See United States v. Sherman, 2 Cir., 200 F.2d 880, 883.
6 Cf. e.g., Lutfy v. United States, 9 Cir., 198 F.2d 760, 34 A.L.R.2d 879; Wall v. United States, 5 Cir., 65 F.2d 993; Butts v. United States, 8 Cir., 273 F. 35, 18 A.L.R. 143.
7 In the first appeal of this case Judge Learned Hand stated: 'Indeed, it would seem probable that, if there were no reply (to the claim of inducement), it would be impossible ever to secure convictions of any offences which consist of transactions that are carried on in secret.' United States v. Sherman, 2 Cir., 200 F.2d 880, 882.
8 For example, in the following cases the courts have, in affirming convictions, held that the issue of entrapment had been properly submitted to the jury. United States v. Lindenfeld, 2 Cir., 142 F.2d 829; United States v. Brandenburg, 3 Cir., 162 F.2d 980; Demos v. United States, 5 Cir., 205 F.2d 596; Nero v. United States, 6 Cir., 189 F.2d 515; United States v. Cerone, 7 Cir., 150 F.2d 382; Louie Hung v. United States, 9 Cir., 111 F.2d 325; Ryles v. United States, 10 Cir., 183 F.2d 944; Cratty v. United States, 82 U.S.App.D.C. 236, 163 F.2d 844. And in the following cases the courts have reversed convictions where the issue of entrapment was either not submitted to the jury or was submitted on improper instructions. United States v. Sherman, 2 Cir., 200 F.2d 880; United States v. Sawyer, 3 Cir., 210 F.2d 169; Wall v. United States, 5 Cir., 65 F.2d 993; Lutfy v. United States, 9 Cir., 198 F.2d 760, 33 A.L.R.2d 879; Yep v. United States, 10 Cir., 83 F.2d 41.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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