Earl Warren: The next case is Number 87, Joseph George Sherman, versus United States of America. Mr. Lowenberg.
Henry A. Lowenberg: Yes, sir, if Your Honor pleases, if the court please. This case comes here on a writ of certiorari to the Federal Court of Appeals of the Second Circuit. There had been two trials of this indictment. First trial ended in a judgment of conviction which was unanimously reversed by the Federal Court of Appeals, Second Circuit. Then there had been a retrial of the case, another judgment of conviction and an affirmance by the Federal Court of Appeals. I might, at the outset, say to Your Honors, that the same witnesses testified in both cases with the following exceptions. That the Government produced witnesses to testify that the narcotics in this case had been disposed of, had been destroyed and therefore could not be produced at the trial. And the Government then offered a new evidence as a part of the government's case, the defendant having rested at the conclusion of the government's case at the first trial and the second trial. The previous criminal record of the petitioner would show that in 1942 and this was an indictment charging alleged sales of narcotics in 1951. That 1952, the petitioner had been convicted of the sale of narcotics and at 1946, he had been convicted of the unlawful purchase of narcotics in violation of Section 2553, not sections 173, 174. The introduction of those that record was strenuously objected to, was overruled. The motion for a mistrial denied in other conviction and then the Federal Court of Appeals Second Circuit affirmed the judgment of conviction. Now, the witnesses as I stated to this Court, who testified in the second trial, were the same witnesses who testified in the first trial. It's our contention one, that the Court erred in not directing a verdict of acquittal on the ground there was entrapment as a matter of law. And two, the admissibility of this record into evidence. Thirdly, that if it were admissible it was so remote in time, as to make it absolutely prejudicial and biased to the accused it's offering it into evidence. Three agents testified for the Government and an informer, a man working with an agent of the Federal Bureau of Narcotics. And I dare say the Government cannot dispute that this Charles Kalchinian was an informer attached to an agent. This Kalchinian had been arrested and convicted of two sales of narcotics in June, 1951 and upon his conviction, he agreed to work with the Federal Bureau of Narcotics. According to the record he built up three cases for the Government. And he went on just to testify. At page 100, on cross examination, and when I had a referral back to the question asked of him at the previous trial, and it was your job while working with these agents to go out and try to induce a person to sell narcotics to you, is not correct. I would say yes to that. Do you remember that? If that's what I said, let us stand that way. Because he had previously said that he didn't recall that kind of testimony. Now, the facts were generally these. This petitioner was seated in a doctor's office. He was an addict, being treated by this physician for withdrawal treatment for a cure of narcotic addiction by Dr.Grossman who has a speciality in treating narcotic addicts. There he saw seated on another chair this government informer. They saw each other in a doctor's office a half dozen times, not by their own appointments but because the doctor had asked him to come back at this time. After a half a dozen times, the government informer said hello to this petitioner. They had gone to the same pharmacy to have their prescriptions filled. This alleged informer or this informer, I should say, then asked the petitioner about his experiences in using narcotics. He broached the subject to this addict.
Speaker: (Inaudible) Was Kalchinian, whatever his name was there -- this -- was he up at the doctor's office?
Henry A. Lowenberg: Doctor's office.
Speaker: As a patient?
Henry A. Lowenberg: As a patient, too, Judge.
Speaker: No, no suggestions that he was up there plying his business with the Government?
Henry A. Lowenberg: No, no, Judge. He was patient, too, according to the testimony. He asked the defendant or the petitioner about his experiences in dealing in narcotics and using it, how he was responding to his treatment. And finally after seeing the defendant several times, he said to the defendant, maybe you can get some stuff. We'll share it between us. First time that the defendant didn't answer. Second time they met at the pharmacy the -- Kalchinian said to this defendant, “Maybe I can meet with your man.” Defendant said, "I know men in the narcotic business but my man has gone out of business.” Third time, he said to him, he uses exact language. He said to this petitioner Kalchinian, “I'm not responding to treatment. I need something to sustain myself.”
Speaker: Who said that?
Henry A. Lowenberg: Kalchinian the government informer to this poor addict, the petitioner who had -- had been at that doctor's office for treatment. Kalchinian said to him, "I'm not responding to treatment. I need something to sustain myself." Thereupon, after all his employs, this petitioner weakened and said to him, “Well, I can introduce you but maybe I can get some stuff. Let me have your telephone number.” He gave it. The stuff that he got amounted to $25. The Kalchinian share was $15. He said to him, “I had to use some taxi money, some expense. So, it will cost you 15,” and the defendant retained the other portion of the narcotics. This had been going for a little while until finally Kalchinian decided to report it to the Federal Bureau of Narcotics. And he did. And Kalchinian testified at the trial, on cross-examination. And I'd like to read that portion of it because I consider it very important. That on page 115 of the transcript of the record, that, "And you took suggestions from them,” meaning the Federal Bureau of Narcotics, “as to how to approach this defendant, did you not?” “They made suggestions, yes." "They made suggestions to you?” “Yes.” “And that was all done to cause the arrest this defendant was it not?” “I can't say.” “You know that to be so, don't you, if that happened. Well you know what happened, don't you?” “Yes I do know what happened, yes.”
Earl Warren: Mr. Lowenberg may I ask you --
Henry A. Lowenberg: Yes.
Earl Warren: May I ask you this.
Henry A. Lowenberg: Yes, Judge.
Earl Warren: So, when they -- when he first -- that this Kalchinian first said to the defendant, “I need this. I'm not responding", and so forth. Was he then in contact with the federal government officers or was he up, was he just on his own?
Henry A. Lowenberg: On his own, then.
Earl Warren: He was on his own.
Henry A. Lowenberg: On his own, then.
Earl Warren: And had there been -- had there been any transaction at all before he -- he went to the federal government?
Henry A. Lowenberg: Kalchinian claims there had been a sharing of narcotics between them as two addicts. In other words he had induced this petitioner to obtain narcotics for him because he said, he wasn't responding to treatment and they shared between them $25 worth of narcotics on a number of occasions. And then subsequently he went down to the Federal Bureau of Narcotics.
Felix Frankfurter: But is the conviction for the -- is the conviction for transaction which they shared?
Henry A. Lowenberg: The conviction is for the --
Felix Frankfurter: Before Kalchinian as you justify to the Chief Justice when Kalchinian was on his own.
Henry A. Lowenberg: Yes, yes, Judge.
Felix Frankfurter: The conviction is for that?
Henry A. Lowenberg: Now, the conviction is -- was that after he reported it to the Federal Bureau of Narcotics, after Kalchinian had told them what had been going on, then the government agents directed him how to act. They told they gave him the money, for example. They -- they searched him, drove him up to the meeting spot where he met the petitioner, searched him to see that he had no narcotics on him, gave him $15 which was his share --
Felix Frankfurter: The conviction -- the conviction is for transaction. Do you -- do you agree on this? The conviction is for transaction, subsequent --
Henry A. Lowenberg: Subsequent, subsequent --
Felix Frankfurter: It is on his own.
Henry A. Lowenberg: On his own.
Felix Frankfurter: Would be on his own is made relevant by the Government as showing that he was in a prepared state of mind, is that it?
Henry A. Lowenberg: That they had already prepared him. They had already prepared up before this -- before this informer went down to the Federal Bureau of Narcotics. In other words, they had already been dividing between them the narcotics as fellow addicts.
Felix Frankfurter: But I mean -- but if the case is the position --
Henry A. Lowenberg: Yes, Judge.
Felix Frankfurter: -- there's nothing that the Government did to Kalchinian as its agent, barely to be deemed to be an entrapment of Sherman, because in fact the five transactions between Kalchinian and Sherman and Kalchinian was on his own, showed that Sherman was in a predisposed state of mind. Was that the position of the Government?
Henry A. Lowenberg: Well, my -- my point is this though.
Felix Frankfurter: Not your point. What I mean, is that the position of the Government?
Henry A. Lowenberg: That's the position of the Government.
Felix Frankfurter: And that's why they say there's no entrapment.
Henry A. Lowenberg: I assume that's their position.
Felix Frankfurter: All right.
William J. Brennan, Jr.: Well --
Henry A. Lowenberg: Now --
William J. Brennan, Jr.: -- didn't -- didn't you say that before this first meeting in the doctor's office --
Henry A. Lowenberg: They had met in the doctor's office.
William J. Brennan, Jr.: -- they -- when they met in the doctor's office.
Henry A. Lowenberg: Yes.
William J. Brennan, Jr.: I thought I understood you to say earlier that Kalchinian had been asked by the government agents to be on the look out or something.
Henry A. Lowenberg: That's correct.
William J. Brennan, Jr.: That was before the first time Kalchinian and Sherman ever met.
Henry A. Lowenberg: That's correct, that's correct.
William J. Brennan, Jr.: Well then what do you mean he was on his own? I don't follow --
William J. Brennan, Jr.: Well, by that I mean, that what -- that what I gathered from the judge's question was just this. Whether, at that time, when Sherman had divided with Kalchinian these narcotics and had no report. Kalchinian didn't report it for about a month to the Federal Bureau of Narcotics, see, and was using it. That he was on his own from that standpoint, but Kalchinian was an informer for the Government from the -- June, 1951 and these sales took place in November, 1951. In other words when Kalchinian pleaded guilty in June, 1951, to the charge of unlawfully selling narcotics through sales to an individual, he agreed at that time to serve the Federal Bureau of Narcotics and continued to do so and admitted under cross examination that he had built up three cases. And that it was his purpose to go out and induce people to try to sell to him narcotics.
William J. Brennan, Jr.: You say again that's three cases. Was this then the fourth case (Voice Overlap) --
Henry A. Lowenberg: This is the fourth case. Yes, judge.
Felix Frankfurter: Let me ask you during -- during this period, after he was convicted and between the November transaction, was that the $25 transaction?
Henry A. Lowenberg: $25 transaction.
Felix Frankfurter: Between --
Henry A. Lowenberg: -- Yes.
Felix Frankfurter: --the conviction of Kalchinian --
Henry A. Lowenberg: Yes.
Felix Frankfurter: -- and the November transaction, would you state with as much particularity as the record permits you to state, what Kalchinian's relation to the Government or Narcotics Bureau was both in -- in the human transaction and in monetary transaction.
Henry A. Lowenberg: I will -- I will so refer to it. I will read the testimony right from the -- from the record. Kalchinian called as a witness by the Government, “Mr. Kalchinian, have you ever been convicted of a crime?”
Speaker: Where -- where --
Henry A. Lowenberg: “Yes sir I have.” “What made you.”
Speaker: Where are you reading from?
Henry A. Lowenberg: Pages 66, 67. “When were you so convicted and what was the crime?” “I was charged and convicted with, I was charged and convicted for a sale of a package of narcotics twice to a man in 1952. It occurred in 1951, but I (Inaudible) "When were you arrested for that crime?" “In 1951, sir.” “Do you recall the month?” “I believe about the early part of May or June. I forget quite which, about June I believe 1951.” “By whom were you arrested?” “By one agency, one agent's name I recall, Agent Stephen.” “Was that an agent of the Federal Bureau of Narcotics.” “Yes, sir.” “Following your arrest did you perform services for the Federal Bureau of Narcotics?” This on direct examination, “Yes, I did.” “At the time of your arrest were you addicted to the use of narcotics?” “Yes, I was.” “For how long, thereafter, were you addicted, thereafter?” “Off and on few months." "Do you know the defendant and Sherman?” Now further, on page 100, on cross examination, as I have pointed out to this Court he admitted that it was his job, while working with these agents, to go out and try to induce a person to sell to him narcotics. That was his job.
Earl Warren: And that arrangement existed at the time he first met (Voice Overlap) --
Henry A. Lowenberg: At the time he first met Sherman.
Earl Warren: That -- that --
Henry A. Lowenberg: Because he had already pleaded guilty --
Earl Warren: Yes.
Henry A. Lowenberg: -- and had agreed to work with the Government and as a matter of fact the record will disclose that the United States Attorney asked the Court for a suspended sentence on behalf of Kalchinian because --
Felix Frankfurter: But you say that -- what you say that when Kalchinian approached Sherman, when he said that it isn't working and he needs relief, that that was prompted by his own need and not all instigated or suggested or --
Henry A. Lowenberg: I meant --
Felix Frankfurter: By the Bureau, is that right?
Henry A. Lowenberg: I meant this, Judge. That he may have been prompted by his own needs that he needed. But he still was cooperating with the Federal --
Felix Frankfurter: (Voice Overlap) --
Henry A. Lowenberg: -- Bureau of Narcotics and whether there was a lapse of a month or six months until he reported these transactions, he was still an informer.
Felix Frankfurter: Does it --
Henry A. Lowenberg: And --
Felix Frankfurter: -- appear that any -- did the record disclose any remuneration?
Henry A. Lowenberg: No remuneration except that he was saved from a jailed sentence --
Felix Frankfurter: (Voice Overlap) --
Henry A. Lowenberg: -- and he said, “I do not want to go to jail." That was his answer to the question, I did not want to go to jail. As a matter of fact, when I asked him whether he would, whether he would induce an innocent man to buy narcotics, whether he'd frame an innocent man, he had hesitated and he said, “I wouldn't know.”
Felix Frankfurter: I wouldn't know?
Henry A. Lowenberg: I wouldn't know. He couldn't answer the question until the Government, after I got through with a lengthy cross examination, on rebuttal, asked him the direct again and he said, no I wouldn't do it. But in response to my course he said, “I wouldn't know.” He couldn't answer the question. So --
Earl Warren: Mr. Lowenberg --
Henry A. Lowenberg: Yes?
Earl Warren: -- before -- before you get off that I just like to get orient on one, one more --
Henry A. Lowenberg: Yes, Judge.
Earl Warren: On these -- these $25 purchases that they shared you've followed --
Henry A. Lowenberg: That's correct.
Earl Warren: Did -- is there anything in the record to show what the undercover man did with his share of it? Did he -- did he use it himself, presumably, or did he turn it in to the Government? Do you know?
Henry A. Lowenberg: Well, this is what happened. Sherman came up with the $25 in narcotics. They had arranged to meet at a certain corner, Sherman and Kalchinian. And Sherman would pass half of the narcotics to him and say you owe me $15, a part of it for taxi expenses. The other half Sherman would keep see? And that he would keep for himself, for his own use. In other words, here while he was at a doctor's office for a cure for narcotic addiction, here was this informer of the Government enticing him back --
Earl Warren: Yes.
Henry A. Lowenberg: -- into narcotic addiction. It was a question of addicts sharing between themselves --
Earl Warren: Yes.
Henry A. Lowenberg: -- the -- the narcotics --
Earl Warren: Yes.
Henry A. Lowenberg: -- and not selling it for a profit.
Earl Warren: Yes, but the informant was actually using his as the defendant was.
Henry A. Lowenberg: That's correct.
Earl Warren: He wasn't turning it over to the Government.
Henry A. Lowenberg: No, no, Judge. He was not, no. Not until, not until --
Earl Warren: (Inaudible)
Henry A. Lowenberg: -- he reported it a month later --
Earl Warren: Yes.
Henry A. Lowenberg: -- decided he'd get down and continue, you see? This course of operation was started June, 1951. These alleged sales took place November, 1951, see?.
Felix Frankfurter: And when did the transactions for which the conviction was had, take place?
Henry A. Lowenberg: November 1st, November 7th, November 16th and he started to work for the Government in June, 1951.
Felix Frankfurter: So, when was the $25 transaction which he's not, for which he was not prosecuted, his sharing transaction?
Henry A. Lowenberg: He was prosecuted for the sharing transaction.
Felix Frankfurter: Oh, he was?
Henry A. Lowenberg: He was, for the $25 transaction.
Felix Frankfurter: Well, I didn't know that.
Henry A. Lowenberg: That's all that was involved in those three sales --
Felix Frankfurter: (Inaudible)
Henry A. Lowenberg: -- were the $25 transactions, nothing else.
Felix Frankfurter: Successive $25 --
Henry A. Lowenberg: Successive $25 -- $25 transactions --
Felix Frankfurter: On what?
Henry A. Lowenberg: -- on November 1, November 7th, November 16th. It was just a sharing between them. The agent (Voice Overlap) --
William J. Brennan, Jr.: Now, when did -- when did Kalchinian report that he and Sherman were sharing these $25 amounts?
Henry A. Lowenberg: In October.
William J. Brennan, Jr.: In October, and what was, Kalchinian told to go -- go on continue with it and --
Henry A. Lowenberg: He was told, that he said according to his testimony and that's the best I can offer, was that they made suggestions to him, as to how to approach this petitioner to my own way of thinking.
William J. Brennan, Jr.: To approach him?
Henry A. Lowenberg: Yes.
William J. Brennan, Jr.: Well, I thought -- I thought they were already --
Henry A. Lowenberg: How to deal with it, to my own way of thinking. Although, I did develop it, to my own way of thinking. I think what the Government had in mind was whether Sherman would come up with some narcotics of a more substantial value than $25, and sell it to this informant. But all that he received and all that was divided between them, was $25 in narcotics on these three occasions.
Speaker: (Inaudible)
Henry A. Lowenberg: Nothing else.
Speaker: (Inaudible)
Henry A. Lowenberg: Pardon me sir?
Speaker: (Inaudible)
Henry A. Lowenberg: There were three sets.
Felix Frankfurter: All of them $25 --
Henry A. Lowenberg: All $25 --
Felix Frankfurter: And all of them shared.
Henry A. Lowenberg: All of them shared. As a matter of fact, to read the opinion of the Federal Court of Appeals in reversing the prior convictions, prior conviction this is what the Court of Appeals said in treating of entrapment. And I refer to page 16 of my brief. At -- quote at pages 882 and 883 of this case said, "Therefore, in such cases, two questions of fact arise. One, that the agent induced the accused to commit the offense charged in the indictment. Two, if so, was the accused ready and willing without persuasion? And was he awaiting any propitious opportunity to commit the offense? On the first question, the accused has the burden, on the second the prosecution has it. In the case at bar, plainly, Kalchinian did induce the first sale. But that was irrelevant unless at that time the two had made the agreement described above. If they did it would be true that the later sales resulted from Kalchinian's original inducement for it meant that he was in a market, so to say, and might buy whenever Sherman had any heroin to offer. Although, as we have said on that issue, Sherman had the affirmative, the evidence to support the defense was ample if indeed not conclusive. On the other hand, since the prosecution had the burden upon the issue of the excuse for inducement, it had to satisfy the jury that Sherman did not need any persuasion. But that he stood ready to procure heroin for anyone who asked for it. And the evidence scarcely supported such a finding. So far as appeared, Sherman shared his heroin with Kalchinian as a fellow addict and without profit. Now, at the second try, the tried to overcome that.
Earl Warren: Before -- before you get to that, I'll just interrupt one more. Is there anything in the record to indicate whether -- whether this informer had actually induced other addicts to -- to -- drug addicts?
Henry A. Lowenberg: Except --
Earl Warren: -- drug addicts?
Henry A. Lowenberg: -- except Judge, on cross examination. He testified that he had built up three other cases for the Government. This was the fourth case. He had built --
Earl Warren: Addicts -- were they addicts, did he say?
Henry A. Lowenberg: He didn't whether they were addicts, but he said he had built three cases for the Government. Now, on the second trial, he tried to overcome that. The Government asked him whether he had bought narcotics at a cheaper rate before, and he said, yes. Now, I say to Your Honors, what of consequence, would that be? Here, there was definitely an arrangement between Kalchinian and this petitioner to share narcotics. If this petitioner had to pay a little more to an individual to get it, to share it with this Kalchinian, then I say it would make no difference. It doesn't make a seller out of -- out of Sherman. The fact remains is that Kalchinian induced Sherman against this will, when he was in a doctor's office seeking a cure, getting a withdrawal treatment to lift him out of the realm of being an addict, that this contemptible creature Kalchinian working with the Government, going there for a treatment and (Inaudible) saying to Sherman finally after speaking to him several times, I'm not responding to treatment. I need -- I need something, get it for me.
Henry A. Lowenberg: Let me ask you this -- Yes.
Felix Frankfurter: -- if I may.
Henry A. Lowenberg: Yes, sir.
Felix Frankfurter: Suppose,this transaction between Sherman and Kalchinian had taken place between Sherman and another addict, absolutely disassociated from the Government --
Henry A. Lowenberg: Yes.
Felix Frankfurter: -- and under -- with the same kind of a plea, Sherman would then have divided heroin the way he did with Kalchinian. Would that have been a -- a violation of the law?
Henry A. Lowenberg: I say no, Judge, I say it would not be a sale.
Felix Frankfurter: Is that it? It is not a sale?
Henry A. Lowenberg: Not a sale, no. If the Government could apprehend him in possession of narcotics, they charge him with possession. But they could not treat it as a sale, because -- pardon me Judge?
Charles E. Whittaker: I'm curious as to why you say it would not be a sale in the situation hypothesized by Mr. Justice Frankfurter.
Henry A. Lowenberg: I say it for this reason. That a sale anticipates a profit. Suppose I were an addict.
Charles E. Whittaker: There is a fallacy. This is or was sale because there was no profit?
Henry A. Lowenberg: I -- I would say it would be a transfer without a sale.
Charles E. Whittaker: (Inaudible)
Henry A. Lowenberg: It would be a division --
Felix Frankfurter: (Inaudible)
Henry A. Lowenberg: -- it would be a division between them and nothing more, nothing more. It wouldn't show that he's seller in the sense of the word, that the law condemns that the man who has -- has narcotics at his disposal, goes out and sells it to one person, second person, third person. He is in the business of dealing in narcotics. It would merely show a division between two addicts, and nothing else for their own use.
Felix Frankfurter: But, Mr. Lowenberg, what I don't understand is assuming you're right --
Henry A. Lowenberg: Yes.
Felix Frankfurter: -- does it become a sale if these -- if these kinds of action takes place with a government agent? Why does that -- it -- make it a sale?
Henry A. Lowenberg: Well, except this Judge. That apparently from the trial of these narcotic cases, where an agent is not an addict and he is on the -- he's on the market to buy, and the defendant would show a willingness to sell and there's no entrapment, then the courts treat it as a -- as a sale -- as a sale, unless the individual was entrapped into -- into --
Felix Frankfurter: Well, I must say I'm doubtful.
Henry A. Lowenberg: Yes.
Felix Frankfurter: The transaction can -- the litmus paper to test can be different, whether what I do to a fellow who pretends to be an addict and I divide it without a penny of profit or he is in fact an addict and I divide it out of sheer compassion.
Henry A. Lowenberg: You might --
Felix Frankfurter: What difference does this -- how can the legal transaction change whether I am a fool in thinking a man is an addict or he's a real addict?
Henry A. Lowenberg: Oh well if he represents himself to be an addict, that's something else. But I'm assuming a government agent who comes along and says to a man, there's a great deal of money in the sale of narcotics and I have means of disposing of narcotics. That's what I have in mind --
Felix Frankfurter: That's a (Inaudible)
Henry A. Lowenberg: -- and see whether if he gets, say, some narcotics and we'll -- we'll sell it.
Felix Frankfurter: But then this case -- but in this case, I'm puzzled. I don't know whether it's relevant or a subsequent one. The government agent held himself out, represented himself to be an addict --
Henry A. Lowenberg: That's true that --
Felix Frankfurter: -- and appealed to Sherman to help, to relieve him of his affliction, is that right?
Henry A. Lowenberg: That's -- that's correct.
Felix Frankfurter: Then why -- so why is it a sale on your view?
Henry A. Lowenberg: Pardon me?
Felix Frankfurter: Why is it a sale in the view that you take of the law?
Henry A. Lowenberg: I didn't say that was a sale in the sense that's in the Sherman case.
Felix Frankfurter: But wasn't he convicted for that?
Henry A. Lowenberg: He was convicted for that.
Felix Frankfurter: So, why is it -- what I'm saying is that (Voice Overlap) --
Henry A. Lowenberg: He is convicted for that. As the Court of Appeals said in its opinion --
Felix Frankfurter: I don't --
Henry A. Lowenberg: -- that it was a division between them, the narcotics without profit.
Earl Warren: Who put up the $25?
Henry A. Lowenberg: Sherman. And then he got $15 back from Kalchinian.
Earl Warren: I see.
Charles E. Whittaker: (Inaudible)
Henry A. Lowenberg: Pardon?
Charles E. Whittaker: And that as I understand it was for half the cost of the heroin plus reimbursement to Sherman for taxi --
Henry A. Lowenberg: For taxi fare.
Charles E. Whittaker: (Inaudible)
Henry A. Lowenberg: Taxi fare, and nothing more.
Speaker: Well, then what was the (Inaudible) the 12.50 for?
Henry A. Lowenberg: $12.50 was for his share of the heroin, they divided it.
Felix Frankfurter: And you say that was by a sale?
Henry A. Lowenberg: I say it was not a sale.
Felix Frankfurter: Well, were there -- were there subsequent ones that are free of this question, what is and is not a sale?
Henry A. Lowenberg: Pardon me?
Felix Frankfurter: The subsequent transactions were they also the same --
Henry A. Lowenberg: All of the same nature. All transactions were -- were conducted the same way.
Felix Frankfurter: Did you urge below that entrapment or no entrapment, this wasn't within the statue --
Henry A. Lowenberg: I --
Felix Frankfurter: -- it was not a sale?
Henry A. Lowenberg: I urged that below and the court held there, in affirming this conviction. Said that regardless of whether there's a profit involved or not it's a sale. And it constitutes a sale in Judge Medina's opinion.
Felix Frankfurter: Suppose -- suppose Kalchinian had given Sherman $25 or $15, you know somebody and here is $15, go and get it. Would that be -- what would that be under the law? Certainly not a sale?
Henry A. Lowenberg: Not a sale, no. No.
Felix Frankfurter: And you say this is the same kind of a thing.
Henry A. Lowenberg: Same kind of a thing, Judge.
Felix Frankfurter: Instead of -- instead of offering the money in advance he reimbursed him.
Henry A. Lowenberg: Sherman -- Sherman just laid it out and he reimbursed him.
Felix Frankfurter: But did you say the Court -- because you said that this is a sale isn't it?
Henry A. Lowenberg: Said it's a sale. The lower court --
Felix Frankfurter: You are not raising -- that question isn't before us, is it?
Henry A. Lowenberg: Pardon me?
Felix Frankfurter: That question is not before us?
Henry A. Lowenberg: Not before us, no. Now, the -- so here we have a situation as I pointed out to Your Honors where the -- this Kalchinian developed this case for the Government.
Felix Frankfurter: Let me ask you one more question. Has this question failed or not? Was that before a judge in the, in the first Sherman case in the Court of Appeals?
Henry A. Lowenberg: Second Sherman case.
Felix Frankfurter: That it wasn't raised in the first one?
Henry A. Lowenberg: No, no. I didn't raise it in the first case.
Felix Frankfurter: You just assumed it wasn't there.
Henry A. Lowenberg: That's all. I just let it to go by and just raised the question at the trial. Now, the -- all the agents testified to was a fact that after Kalchinian came down to the agent (Inaudible) to whom he was assigned at the Federal Bureau of Narcotics that they drove him uptown, they searched him to find out whether he -- to see whether he had any narcotics on him, gave him the $15, saw something pass between Sherman and Kalchinian. Kalchinian would come back to car. They'd searched him and find narcotics. They'd put it in a glassine envelope and that initially. But they also testified that Sherman was a handyman. That Sherman earned his living as a handyman and as a collector of rents in a house on West 17th Street. They knew that to be his income. That he was not getting his income from the sale of narcotics. That here he was legitimately, legally employed. And on the -- the last occasion on November 16th, when they drove Kalchinian uptown to meet Sherman, they gave to Kalchinian listed American currency, took the numbers off the bills and when they saw it pass to Sherman, they trailed Sherman to his home in West 17th Street to his apartment building, to his rooming house, worked in on him and said, “You're under arrest” “What for?” “Narcotics.” He denied knowing anything about narcotics. They said take your money out of your pocket and then among the bills they found this amount of money. They searched him. They found no narcotics. They searched his apartment, they found no narcotics. They found no evidence to the fact that Sherman does not or did not earn his living as a handyman and as a collector of rents and taking care of these premises on West 17th Street. Now, that in substance, is the testimony of the agents. And -- and according to their own admissions they weren't concerned. They weren't concerned at all as to how that Kalchinian got Sherman to sell or to give him narcotics to put it that way. They weren't concerned at all about that. As a matter of fact, (Inaudible) the agent to whom Kalchinian was assigned, on cross examination, at page 29, from 28 to 29 said he wasn't present at any conversation between Kalchinian and the -- the petitioner. And he does not know if Kalchinian would induce anyone to sell him narcotics. He wasn't concerned with him, neither were the other agents as to how these alleged transfers took place. All they were interested in was the evidence there, nothing else or what comes down to, this meeting of Kalchinian with Sherman in a doctor's office. Now, I dare say that if an addict who goes to a doctor's office has to be fearful of the fact that he may meet the agent of the Government or an informer of the Government in that office, why, he'd be fearful to go there. And yet our policy is try to readjust and rehabilitate these medically unfortunate, these medically sick people and yet the Government used this man in a doctor's office to entice, to induce Sherman to give him narcotics, at least.
Felix Frankfurter: In your case Mr. Lowenberg --
Henry A. Lowenberg: Yes.
Felix Frankfurter: Now that I've looked at the indictment and the sales thing is naturally out of business here because it says, received, concealed, sell, or facilitate -- and facilitate the transportation et cetera, so. But your case is this, that although this -- this man Kalchinian was in fact an addict who's himself sought to be cured but he also at the same time was in the service of the Government --
Henry A. Lowenberg: Correct.
Felix Frankfurter: And was particularly of the Narcotics Bureau.
Henry A. Lowenberg: Correct.
Felix Frankfurter: And he talked to a fellow addict --
Henry A. Lowenberg: Correct.
Felix Frankfurter: -- as one addict might talk to another --
Henry A. Lowenberg: Correct.
Felix Frankfurter: But in fact at the time that he did so, he also as a servant of the -- one of the Government and by the testimony that you think is sufficient was under an arrangement if he could to bring violators of the law to the notice or to be convicted to be -- attention of the Government --
Henry A. Lowenberg: Correct.
Felix Frankfurter: -- that's the case.
Henry A. Lowenberg: That's -- that's the case.
Felix Frankfurter: And the fact that he was an addict, talking as one addict to another doesn't strip him of -- of the fact that he is also acting for the Government at the same time.
Henry A. Lowenberg: He said he was. As a matter of fact -- as a matter of fact, I want -- just want to point this out. On the first trial, if the Court pleases, well I might find it because it was very interesting here. On the previous trial, -- let me just find it; it will just take me if Your Honors will just bear with me. On the previous trial, he went out for lunch with one of the agents. And the agent asked him, “How do you think we are getting on?” And Kalchinian says, “I think we are doing all right. I think we are doing all right.” As a matter of fact on a second trial I had to repeat the questions and answers to him given by him on the first trial, which clearly establishes beyond any question of doubt that besides the fact that he built three cases for the Government and was working for the Government that here he was particularly interested in the outcome of the case because when he went out with the government agent for lunch, the government agent asked him, “How do you think we're getting on?” And he says, “I think we're are getting on all right.” He said, “I think we're getting on all right.” Now, I say to Your Honors could there possibly be a stronger case of entrapment? Now, when we come down to these convictions 42 and 46, the first conviction in 42 as I say to Your Honors was for the unlawful sale of smoking opium. In 46, it was for the unlawful purchase of heroin, of narcotics, unlawful purchase -- purchase not sale under 2553. I'm trying an indictment in 51. How could that be possible, a lapse of nine years in the first indictment in 1942, which constituted a sale of smoking opium to 1951, to show a predisposition, a criminal intent on the file.
Felix Frankfurter: What was the -- what evidence according to your view was there at the second trial bearing on predisposition that was not present in the first trial?
Henry A. Lowenberg: No evidence at all except the Government as I started to remark relied upon the convictions of this -- prior convictions of this petitioner.
Felix Frankfurter: For the date that you've just given?
Henry A. Lowenberg: That's for the dates that I have just given and also Kalchinian testifying I obtained narcotics at a cheaper rate from some other person before I divided it with Sherman. That's all nothing else.
Felix Frankfurter: Very well, it was undisputed Kalchinian had been an addict.
Henry A. Lowenberg: There was no dispute about that.
Felix Frankfurter: And presumably an addict is a person who somehow rather gets a hold of forbidden fruit.
Henry A. Lowenberg: That's correct, Judge. That's correct, that's correct. And here they meet in the same doctor's office who would be just like two manufacturers of a process who might meet on the outside and discuss their business. So, it's reasonable to assume that when you have two addicts in a doctor's office and he sends him to a pharmacy or they meet at a pharmacy to have their prescriptions filled, that one will say to the other, how are you responding to this treatment or what kind of stuff have you been using or how much have you been paying for it, and so on. So, he asked him once when he saw him. He asked him the second time when he saw him. And then finally, finally, finally, he said to him I am not responding, I need something. And it was then that Sherman said, let me have your telephone number.
Speaker: And then it was obtained and divided --
Henry A. Lowenberg: And divided between --
Speaker: On many occasions.
Henry A. Lowenberg: Divided between.
Speaker: (Inaudible)
Henry A. Lowenberg: That's this occasion.
Felix Frankfurter: There wasn't any question, was there that's Mr. (Inaudible) there isn't any -- it is not in dispute that -- that these two people Sherman and Kalchinian met in a bona fide doctor's office whose speciality was treating addicts.
Henry A. Lowenberg: No question about that.
Felix Frankfurter: None at all?
Henry A. Lowenberg: That's no – there's no dispute about that. The only thing the Government argues in its brief which I feel is absolutely fantastic is that maybe Sherman wasn't there for a cure. Maybe he was there to look for potential customers.
Felix Frankfurter: Well is there any --
Henry A. Lowenberg: Well --
Felix Frankfurter: -- evidence from your point of view? Is there any supporting evidence for that proposition?
Henry A. Lowenberg: None at all. And I might say further to Your Honor that if you or I -- if I were a physician and if Your Honor was a physician, saw a man around your office day after day and asked him what he was doing there and if you've permitted him just to remain to try or get potential customers to sell narcotics to, at least he'd be guilty of a conspiracy. So that argument on the part of the Government is, absolutely, I say a desperate argument to try to sustain this conviction. He was there for a -- for treatment. Kalchinian testified that they even discussed the treatment that they were getting and that was the Government's witness, Kalchinian. And it was in a bonafide doctor's office.
Earl Warren: Mr. Knapp.
James W. Knapp: (Inaudible) Pardon me, Your Honor.
Earl Warren: Certainly.
James W. Knapp: We come again to the question of whether the entrapment issue was one for the jury. And we contend that the facts did not show entrapment as a matter of law. And secondly, that the rebuttal evidence is properly admitted, intended to show that the petitioner was not an innocent person at the time again when this transaction took place. Now, Kalchinian was a government informant. He was an addict who had been arrested for a narcotic violation in June of 1951 and who had turned informant in the hope of helping himself. He was an addict and the record shows that he had built up two other cases sometime prior to the time that he engaged in this transaction with Sherman. Now, the record as I read it, record 100 and -- and at page 27, indicates the defendant rather the -- Kalchinian has said that it was not his job to induce someone to sell narcotics. That question was asked him. Top of page 100 of the record, “And it was your job, was it not, while you were working with these agents to go out and try to induce somebody to sell you narcotics, isn't that true?” Answer, “No, it wasn't my job at all to do anything of that kind.” And when you get down to the bottom of the page, he says, “So, when you testify now that it was not your job you're not telling the truth? He's cross-examined in the meantime on his prior testimony. The answer is “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.” Then he (Voice Overlap) --
Earl Warren: And that under -- wasn't there something on page 100 also following -- following that or the question is do you remember this question --
James W. Knapp: Yes.
Earl Warren: And so please read it.
James W. Knapp: That's where he did it.
Earl Warren: Question “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?” Answer “I would say yes to that. Now do you remember that, if that is what I said let it stand just that way.
James W. Knapp: So that -- yes.
Earl Warren: Now, that's a little different from what --
James W. Knapp: Yes. Yes, he had previously testified to that on the prior trial., There's two trials here. This is the second trial and what if -- what Mr. Lowenberg is doing is cross-examining him on his testimony at the prior trial.
Earl Warren: Yes.
James W. Knapp: So, now, we have -- we have him saying now, he didn't -- that it wasn't his job to induce him. And he said on the prior trial that it was and he is cross-examining him on. So, we have two statements now.
Earl Warren: I know, but he says --
James W. Knapp: (Voice Overlap) --
Earl Warren: -- but after he has confirmed it with that question and that answer. He says, yes, -- he says, “If I said that, if that is what I said, let it stand just that way.” And then --
James W. Knapp: Yes.
Earl Warren: -- the question now when you look at this, the court, he said, “Let it stand just that way. ”The witness "I take your word for it.”
James W. Knapp: He says, “I mean by job that nobody hired me.” He, I guess -- he's trying to explain himself. But he had built up to other cases. Now, the agents testified on record 28.
Earl Warren: Now, to tell you, this -- this page 100 just doesn't bear out what you started again to tell us Mr. Knapp. I'm -- I'm afraid --
James W. Knapp: Oh, I'm --
Earl Warren: -- I've read the whole --
James W. Knapp: I --
Earl Warren: -- I've read -- I've read the whole thing now and it just doesn't bear that out.
James W. Knapp: Well, he say at the -- at the start, it wasn't his job to do anything of the kind. Then he cross-examined him on the prior testimony in which he did say yes that it was his job to go out and try to induce a person. And then he -- he says, well, yes, that's what I testified to. And he says he believed he testified to it and it was the truth.
Earl Warren: Yes.
James W. Knapp: And then he says by -- “So when you testify now it was not your job you're not telling the truth? He says, "I answer, I mean by job that nobody hired it -- that hired me for that.
Earl Warren: Well, that's not (Voice Overlap) --
James W. Knapp: That is what I inferred. Otherwise, it left the same thing in my answer to your question.” So he is, and you're right, Your Honor. He is in effect saying that. I'm -- I'm sorry for it. But there was other testimony by the agents that they didn't hire him to do that. Did you -- on record page 28 (Inaudible) said, “Did you give him any instructions as pertaining to a specific case that we were working on with Sherman?” “Yes.” But before that he said, “Did you – did he receive instructions from you that cooperating with the Bureau meant if he didn't want to go to jail to go out and try to buy narcotics?” “No, sir.” “You gave him no instructions at all?” “Not along those lines, sir.” But in late August of 1951, he met the defendant in Dr.Grossman's office, and Grossman had a practice of attempting to cure addicts. The defendant told Kalchinian that he was there for the cure and the meetings were not arranged. They -- they met each other. They're purely fortuitous. Then he struck up an acquaintance with the petitioner by routine greetings. And I -- and I think in one place, he said he more or less talked to him, as he would discuss your operation. They talked about their experiences and what they had been going through. And then the petitioner -- or the informant asked the petitioner if he'd been getting drugs and what quality. The record at page 68, question at the bottom of the page, “When you state what his experiences had been, can you state more in detail what your conversation was?” Answer “Well, we spoke to each other such as many people who go through operations. They ask about their mutual experiences and that was the gist of the conversation. And first, I asked him if he had been getting drugs, what quality and so on and the conversation went along those lines at the first.” Question -- top of page 69, -- “And about when did the conversation take this turn?” Answer “I would say about the end of August.” “Did you ever speak to the defendant about introducing you to his connections?” And it was -- the objection was sustained. “In addition -- in the -- in the course of your discussion with the defendant about your addiction, did you ever ask him anything further?” “Yes I did. “After a while, I asked him if there was a reliable man I could met sometime that I needed him and I asked him along those lines.” “And what did he say to you?” “He told me that he did know some people.” “And what did you say to him?” “I asked him if it were possible for me to meet some of these people or one perhaps.” “And what did he say? “He didn't say anything at the time. But I spoke to him again on that subject." And he said no. He couldn't see how I could meet this particular person, this one in particular. And I asked him, why not? And he explained that the man was going out of business turning it over to someone else. And in this change and so on, he didn't think that I could meet him at all.” “Did you ever tell the defendant the purpose for which you wanted to meet this man?” Answer “Yes, I told him I was not responding to treatment very well and needed something for myself to maintain myself to a level, but he couldn't see how he could introduce me to him.” So that it appears that the first approach by Kalchinian to the petitioner was not that the petitioner sell him any narcotics or as Mr. Lowenberg suggests, split any narcotics with me. All he wanted to do was find out who he could get some for, for his own needs. And --
Felix Frankfurter: Mr. Knapp, I don't mean to take words out of an opinion and treat them as sacred, but taking Judge Hand's opinion in the first Sherman case, "Therefore, in such cases two questions of fact arise. That one, did the agent induce the accused to commit the offense charged in the indictment. Two, if so, was the accused ready and willing without persuasion, and was he awaiting any fortuitous opportunity to commit the offense?" Now, what is there in this record to sustain any allowable inference by a jury that this fellow, Sherman, was awaiting a fortuitous opportunity to commit the offense?
James W. Knapp: Well, the thing in the record is that that he eventually, not eventually, I think after three approaches.
Felix Frankfurter: By -- by the government agent?
James W. Knapp: By Kalchinian. And incidentally, there's a question raised there as to whether Kalchinian there acting as a government agent. It was raised here on the (Voice Overlap) --
Felix Frankfurter: But you -- one can't say without denial that he was contemporaneously a government agent.
James W. Knapp: Your Honor, there is evidence in the record. And this point has never been raised by anyone, as far as I can see in any point as to whether the informant was an agent at the time he first made these purchases. Now, he made these purchases from Sherman beginning the first part of September, and continuing on through until November. And as he testifies, they had an arrangement whereby when Sherman had drugs to sell him, he would call him at his office or his place of employment and -- and they had a regular system. They knew where they were going to meet, the place had been set. And he would say, tomorrow or do you want some tomorrow at 2 o'clock? And they would meet and there'd be sales, and that there were calls three to four times a week from Sherman, always coming from Sherman to him saying he had narcotics, and that on most of these occasions, he went to meeting him. And, thereby, implying that be bought the narcotics. And so that he had been buying narcotics for a period of almost two months. And then in the latter part of October, he walked in to the Bureau of Narcotics and said I can make a case for you.
Felix Frankfurter: What --
James W. Knapp: That's just about --
Felix Frankfurter: Will you state what your -- what -- can you state your understanding of the relations between -- the relations between Kalchinian and the Narcotics Bureau from the moment that they had a relationship?
James W. Knapp: Well, my -- my understanding from it is taken from the record.
Felix Frankfurter: (Inaudible)
James W. Knapp: Yes, sir, at record page 67. That he was arrested in May or June, and following your arrest did you perform services for the Federal Bureau of Narcotics? Yes, I did. Now, that's the defendant test at the -- Kalchinian's testimony on that and (Inaudible)
Earl Warren: Didn't you say, Mr. Knapp, that he made two cases for the Government before the sales to the --
James W. Knapp: Yes, sir. That was his testimony. I -- I have a record reference to it somewhere here, if I can find it.
Earl Warren: Then you and I understood what he was saying.
James W. Knapp: Well, yes -- but I -- I --
Felix Frankfurter: (Inaudible) I assume that there is no contract between them, nothing in writing between the Narcotics Bureau and those and its informant. That it's a verbal arrangement through a course of business. Is that right?
James W. Knapp: I would assume that. I'm not familiar with the exact method by which special employees and informants are used.
Speaker: But he did begin, and he was in the service or did something (Inaudible) and he did something for the Bureau following his conviction of (Inaudible)
James W. Knapp: Well --
Felix Frankfurter: -- and that (Voice Overlap) -- to go in there and tell him about things.
James W. Knapp: Following his -- following his arrest, sir, this -- this case, this is by -- arose before he -- he was finally sentenced. But on record page 26 (Inaudible) and the government agent said he had known Kalchinian since, oh, I would say sometime in 1951. And he said, “Let -- well, let me ask you this, these events took place in November 15, 1951. How long before then did you meet him for the first time?” Answer “For the first time I met him on one occasion during the summer of 1951. And then it was not until sometime later that fall, sometime again later that fall, that I saw him again.” So apparently (Inaudible) had nothing to do with him until he came in to the office with this case with respect to Sherman. Although, it is not exactly clear, but that's the (Inaudible) testimony. And he was -- he stated that the man was receiving considerations, because of his helping the Government. And I would like to refer Your Honor to -- to record on page 114 through 117, which is Kalchinian's testimony on cross. Down near the -- just about the middle of the page record 114, “And you broached the subject to this defendant, did you not, for the purpose of making a case against him?” Answer “For the purpose of what?” “Making a case against him." Answer “No sir.” Question “You were in collaboration with the Bureau of Narcotics, were you not?” Answer “Not at that time.” “Were you, during any of the time that you were approaching this defendant?” Answer “Before that I mean a few months pervious to that or in other cases.” Question “Did you ever speak to the Bureau of Narcotics about this defendant?” Answer “I did”, and it was broken into before the day of arrest. Answer “I did in the latter part of the month of October, yes.” So, that it appears that the first time that he comes in to the Government is the 1st of October. He's been buying narcotics three to four times a week for two months. Now --
Speaker: Excuse me (Inaudible)
James W. Knapp: No, sir. I cannot find it in the charge of the jury where I could barely state that it was. That to me, this is one thing that has never been raised in this case at any time. I have never seen it. It isn't raised in any of the briefs. It isn't raised in his brief, and it isn't raised in the Government's brief. But there is evidence in here from which you could find that he wasn't cooperating with the Government. He says at the top of page 115, was it your object to cause his arrest? No. Then he asked him, "Did you report it to the Federal Bureau of Narcotics? Yes, I did. Of course he did. That's how they made the buys. Then they go over, on page 116, and -- and Mr. Lowenberg questions him again. “Well you approached him to supply narcotics, yes or no?” Answer “When I approached him on the subject I have nothing in my mind but to supply myself.” Question “To supply yourself?” Answer “To supply myself with narcotics. That is right. I needed it.” “You needed it?” “That's right.” Then they go in to ask about -- it says, “And you approached him for it?” Answer “I asked him to introduce me to his man." Now, Kalchinian's testimony is replete with the idea that all he asked this defendant to do was to introduce him to someone he could buy narcotics from because he needed narcotics for his own personal use. And that the defendant rather than do that, sold him narcotics himself.
Hugo L. Black: Why does he say he sold it to him? I've just read here that (Inaudible) All I've seen is that, and maybe that's what you referred to. That he arranged, he talked to this man and the man told he didn't have anybody. That he was going to get some for himself and he would share it if he wanted him to. And you said that the man went and got it from somebody else. And then let him have his $15 -- that he had $15 for him. But why do you say he sold it himself? I gather that I -- I'm not talking, playing on the words, but I gather that -- I find nothing in the record except that he went and bought it from someone else, not that he was selling it. That he would then bring it to him.
James W. Knapp: On direct examination at page 71 of the record, sir, about the middle of the page, “Did the defendant ever call you for this purpose after he stated the place he agreed upon was 8th avenue and 20th in the corner of 8th Avenue and 20th Street. Did the defendant ever call you for this purpose?” “Yes, he did.” “When was the first time that he called on you?” “Well, about the 1st of September.” “And did you set up a meeting with him?” “Yes, I did.” “Did he deliver narcotics to you that -- at that time?”
Hugo L. Black: Oh, yes. There's no doubt about delivery but he explained it may have nothing to do with case. But as I read it, he explained that the man never did claim he was selling it. That he was brought some himself and that he let him have half of it for $15.
James W. Knapp: Yes. The -- the story was that -- that --
Hugo L. Black: That he did (Voice Overlap) --
James W. Knapp: -- Sherman was buying narcotics for himself. He had a source of supply.
Hugo L. Black: Shared it with him and that this man would give him $15 before he went to get it.
James W. Knapp: No, sir. I understand that depending --
Hugo L. Black: (Voice Overlap) -- He said the officers let him have $15 before he went to get it in some. (Voice Overlap) --
James W. Knapp: My understanding of the testimony of the officers is, is that they gave him $15. And then they observed him.
Hugo L. Black: Yes.
James W. Knapp: And they observed him --
Hugo L. Black: That was the (Voice Overlap) --
James W. Knapp: -- pass something and receive something and that at the -- on the last sale, the third sale after they arrested Sherman, they found the $15, same $15 on Sherman that they had found on the -- on the -- that they had given to Kalchinian. So that there was a payment at the time. It was not, he was not making him his agent to go out and buy it bring it back. He was paying for it that at the time he got it, is the way I understand the record.
Hugo L. Black: But I think your record shows that each time he understood that man would go get it and bring it to him at a certain place. Maybe -- it maybe that's wrong.
James W. Knapp: Your Honor, I --
Hugo L. Black: Maybe he had nothing to do with.
James W. Knapp: I don't read the record that way. I read the record that showed that Sherman would call him and tell him he had narcotics.
Hugo L. Black: That he could get it?
James W. Knapp: No, sir. My understanding of the record is that he -- that he had it to -- to deliver to him and that he would arrange the next day to go down to this place around 8th Avenue and 20th Street and they would meet. And -- and Kalchinian here would pay Sherman for the narcotics at the same time. I mean, there was a sale, as transaction, a sale, that he actually gave him the money at the time he got it. That's my understanding of the record, Your Honor.
Felix Frankfurter: May I, in dealing with the question whether this man was a government agent, you say that nobody, that sort of, as we have to deal with it, everybody in this litigation isn't that what you've indicated?
James W. Knapp: As far as I know, sir --
Felix Frankfurter: So far --
James W. Knapp: -- this is the first time and the first place --
Felix Frankfurter: But Mr. Knapp, the problem, the defense if you call it such, the defense of entrapment can only arrive if the government agent is involved. And if you say the Government neither on the first trial nor on the second or in the Court of Appeals, first appeal or second, raised the question, it must have taken it for granted that he was a government agent. Otherwise, the entrapment defense had no basis at all.
James W. Knapp: Your Honor, I have no means of knowing what was argued to the jury. The arguments are not in here.
Felix Frankfurter: Well, but I can --
James W. Knapp: Because I can find nothing in the record as I have it here, will suggest that.
Felix Frankfurter: But I think that for once -- for once a negative is a -- a positive, that if the Government would not have accepted, would not have assumed or found in the evidence sufficient basis for concluding that this fellow was a government agent, it couldn't have been indifferent to what is basic to the beginning of a defense of entrapment.
James W. Knapp: Well, I -- I don't know whether the United States Attorney overlooked it or what happened, Your Honor. As I say --
Felix Frankfurter: Well but the -- but that you say (Voice Overlap) --
James W. Knapp: -- this is -- is the first place which have (Voice Overlap) --
Felix Frankfurter: (Voice Overlap) -- No matter, the Government does -- a US Attorney or an Assistant Attorney or a first year law student knows entrapment means something supposedly done by government agents. And if that -- that question isn't contested --
James W. Knapp: Well I --
Felix Frankfurter: -- presumably fair.
James W. Knapp: The matter was brought up here, Your Honor, and I wanted to refer you to the record because I do think it is questionable. And as I say I don't think it's been raised before but I do think its questionable.
Felix Frankfurter: I (Voice Overlap) --
James W. Knapp: I don't think -- I think he wasn't.
Felix Frankfurter: But I do say that it isn't raisable and that's because I've --
James W. Knapp: All right, sir. All right.
Felix Frankfurter: -- abstained and now say, oh, well, but there's no issue of entrapment because he wasn't a government agent.
James W. Knapp: Well, I'm sorry, Your Honor. I thought that this Court was interested in that point and that's why I brought it up.
Felix Frankfurter: And let me -- I can assure you've been interesting.
James W. Knapp: Now, according to Kalchinian's testimony that while he had asked the defendant to supply the name of his party from whom he could obtain narcotics, the defendant didn't do that. Instead, he suggested displeasure. Now, in this respect, I -- I must confess that I read this record. And there are two ways you could read it. One of them you can read it to understand that as far as Kalchinian was concerned, that the defendant offered it to him. He offered to sell it to him. But the cross-examination of Mr. Lowenberg was based on prior testimony indicates again that -- that that is a very debatable at least, subject as to who suggested at first that Sherman sell the narcotics to -- to Kalchinian. I -- I have trouble finding out just exactly what the fact was.
Charles E. Whittaker: I understand or understood (Inaudible) argument of the counsel for petitioner that there is no question about that. That on each of the three instances of questioning, Sherman had gotten $25, $25 worth of heroin and then by arrangement met Kalchinian on the street corner and passed over what was supposed to be half of the $25 worth of heroin, asked then, Kalchinian to pay him $15, that which covered one half of the cost of heroin, plus the $2.50 taxi cab fee. I am sure, that's quite --
James W. Knapp: That's correct.
Charles E. Whittaker: As I understood counsel for petitioner.
James W. Knapp: And that's -- that's my understanding of -- of what transpired there. But I'm talking about this prior arrangement back in August when they first made the arrangement to -- to buy narcotics. You see, this -- this purchase on what this indictment is based was made December – December or November 1st, was the first buy. But Kalchinian says that “I've -- I started buying for him back in the 1st of September.” And so, the question is whether he was induced wrongfully back the 1st of September to sell narcotics to Kalchinian. And Kalchinian says, “I asked him to supply me with a name or introduce me to somebody I could get it from and his source and instead the defendant insisted on selling it me.” And perhaps, there was a reason. Maybe, he wanted to make a profit. And we -- we contend that in itself indicates some evidence of a predisposition, if the case isn't the same as the one we had here before. Here, there are two discussions about the narcotic addict. It isn't in -- but on the other hand, we have a man who is, admittedly, violating the law with respect to narcotics. He is buying them. He says I can get it. He says I have source. So, he isn't a man too innocent in this. And to show whether he was a -- a person engaged in it we brought the record of his prior convictions, which was a conviction0 for a sale and a conviction for, as I believe, Mr. Lowenberg points out for a purchase. Now, those two convictions together with the evidence here that he was a narcotic addict that's why he was going to the doctor, he was able to get the drug. He was -- had been buying it. He could get it when Kalchinian couldn't. He was still dealing with narcotics in one way or another.
Earl Warren: How do you know Kalchinian then couldn't get it?
James W. Knapp: Well, Kalchinian said that he couldn't that his -- and then that's in here, at record 116.
Hugo L. Black: He did get it going in and through other sales, didn't he? Two other purchases, turned it over to the Government.
James W. Knapp: Well, that apparently was earlier than August.
Earl Warren: Well, this is June, the same year.
James W. Knapp: And this was June -- June or July. He doesn't say when. But he said, “Give me the name you know him,” and then he said, “Well he wanted to know the name of this prior dealer." "Did you cause his arrest?” “No.” “Could you give me the name of that dealer?” “No, if I don't -- I don't know if I know it -- his right name.” “Give me the name as you know him under.” Answer “Nick, Nick, that's all I knew him.” “Did give you the Bureau of Narcotics his name, Nick's name?” Answer “I did not mention it to the Narcotics Bureau.” “Did you give them a description of this man?” Answer “No.” Then he asked, "Do you recall operating with the Bureau of Narcotics at that particular time?" “Not at that particular time.” “Not at that particular time? Did you subsequently -- when you started to cooperate then, were you still getting narcotics from Nick?” “Whom were you getting it from then?” Answer “I was not getting it from anyone.” “You mean you were up at the doctor's office for a cure?” “That is right.” “And you did not have a cravings for narcotics while you were undergoing this cure? "Not at the beginning. No, not at the beginning, no.” “It was only later in the treatment that you --you required this? Answer “I was not responding to treatment very well.” And then as to the two previous cases on record 117, he says, “But you did build up two other cases?” “In some months previously, yes. "Some months previously?" "Yes.” “And isn't it a fact that in not going there to Nick but in approaching this defendant you had in mind building up a case against the defendant to give the Bureau of Narcotics?" So, that it does appear that at the time he was getting narcotics from Sherman and was going to the doctor. He didn't have a source of supply of his own. He was trying to get some for himself. And that the defendant, rather than leading to his own source, saw that opportunity to get back into the narcotic business which he had previously been in 1942 and which he -- for which he had possession of narcotics or purchase of narcotics. He'd been convicted in 1946. And he's a man that's been dealing in narcotics or -- or addicted to narcotics for -- for 9 years. Now, that -- that evidence to me has some persuasion in -- in whether he was a person who was again willing to get into the traffic and who was a person, who was, otherwise, an -- an innocent person. Now, again I come back to the argument of entrapment. That entrapment is a defense for the innocent, the people that are not engaged in crime, and not engaged in this particular advantage. It's not a -- a defense for a fellow who is in the business.
Hugo L. Black: Is there any evidence that you've seen in the record? I haven't read it all, but was there any evidence in the record that he was up at his doctor's office for any purpose except to get him to the transfer and decided to stop himself?
James W. Knapp: No, sir. There's no evidence in there other than that. As a matter of fact the only evidence that I can recall was that he told Kalchinian that he was there for the purpose of the cure. He was trying to get a cure but at the time he was buying narcotics. So, I --
Hugo L. Black: Was that in the record?
James W. Knapp: I don't know if there were or if you should believe him on that. But there is no record that he was there for the purpose of trying to find someone to sell narcotics or do anything in that sense, I would say, Your Honor. But we feel that this -- this evidence of prior offenses was admissible. Again going to the predisposition of the defendant and his guilty mind at the time of the sales in question. And again, the Sorrells case is important because as they -- as they point out, once he opens this door to entrapment, then the Government in such a case can bring other evidence into play. For example, they say, that if the defendant seeks acquittal, by reason of entrapment, he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition is bearing on that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the offense. And it's about just like the fellow that puts his character in evidence like we found in the Michelson case, where they asked him, his character witnesses if they knew he'd been arrested in 1920. And this Court held that was all right that he opened up the issue.
Felix Frankfurter: But for the prior conviction -- but for the prior conviction, the case would be the same it was at the first trial, would it not?
James W. Knapp: Your Honor, I -- I hesitate to say that because I did not see the record in the first trial but from reading the opinion of the Second Circuit in 200 F.2d, I would say that it is. As far as I know, except for the record of the convictions and the record of the -- of Mr. Lowenberg for the price paid for the narcotics and the -- and the fact that he had previously purchased the same amount for a lesser price that is, and he testified, I think, that he got the same amount for $10 from his other places where he could purchase. In other words, this man had been an addict. And he bought narcotics before so that there is some evidence in there to show that Sherman was in the business for profit --
Felix Frankfurter: There is no --
James W. Knapp: -- that there was not in the first place.
Felix Frankfurter: -- affirmance. The Government didn't affirmatively direct evidence to indicate the $25 was an exorbitant price. Was there?
James W. Knapp: No, sir. I did not find any evidence in the record of that.
Earl Warren: Supposing that, isn't it also fair reasoning that if it is wrong for the -- for the Government to try to induce a strong-minded, innocent person to commit a crime, when he finally succumbs to it, that it is more wrong for the Government to try to induce a poor addict who is struggling with himself and is -- is going to a doctor everyday in order to try to break himself of the habit, and can you say that -- can you say that the -- the mere fact that the man is an addict, gives the Government the -- the right to induce him to commit this crime just because he's a person who might be likely to succumb?
James W. Knapp: I don't think that the Government would have any such right there. Well, I think that it's --
Earl Warren: (Voice Overlap) -- haven't you got that -- haven't you got that situation here, Mr. Knapp? You've got this -- this poor fellow, both of them poor fellows, who are sitting in this -- in this doctor's office, both of them trying to break themselves of this habit. And one of them who is connected up with the -- with the Government, Narcotic Bureau for some reason or other, whether it's money or whether it's -- it's influence or perhaps leniency on the part of the -- of the Bureau, one of them chooses to cooperate with -- with the Government in making these cases. And he induces some poor devil who is in that office trying to break himself of the habit under a doctor's -- doctor's care. Now, if there is such a thing as entrapment, shouldn't that be entrapment?
James W. Knapp: I don't think so, in this case, Your Honor, because he -- as -- as Kalchinian's testimony, as I read it, is that he, the defendant offered to sell it to him. He tried to find who defendant -- his source of supply. And -- and instead the defendant offered to sell it to him.
Earl Warren: Oh --
James W. Knapp: As I say, there maybe --
Earl Warren: -- I -- I --
James W. Knapp: -- some question on that, but that's the way I read the record.
Earl Warren: I've read this and I don't think it'll bear that out Mr. Knapp. The man, Kalchinian admits, I don't want to go all over this because it's pretty late, but as I read it, Kalchinian, first approached him in the office, asked him how he was doing, and then told him -- asked him if he could tell him where he could get some.
James W. Knapp: That's right.
Earl Warren: Then told him he needed it badly. And finally, on about the third or fourth time, this man said, well I can't introduce you to anybody, but I can get, maybe get you some. And I'll share it with you,. And then he went and -- he went and got them.
James W. Knapp: Well, that's -- that's about --
Earl Warren: Yes.
James W. Knapp: -- as I -- as I read the testimony, Your Honor, that's about the size of it.
Earl Warren: Yes. Well, now when you (Voice Overlap) --
James W. Knapp: If you think it over it's about the --
Earl Warren: Yes.
James W. Knapp: -- size of it, but Kalchinian insists I didn't ask him to sell it to me.
Earl Warren: Well, but that's --
James W. Knapp: And now I mean --
Earl Warren: -- that's a play on words, it seems to me --
James W. Knapp: Yes. That maybe --
Earl Warren: -- he -- he wanted this man to go out and get for him. That's what you -- that's the purpose of his questioning.
James W. Knapp: I -- I don't think so. I think he wanted him to tell him where he could get it. I think there's a distinction there.
Earl Warren: Well, then why didn't he stay with that? Why didn't he stay with it? What -- what difference would he --
James W. Knapp: (Voice Overlap) --
Earl Warren: You mean he wouldn't have taken it the easy way, that is, if this man could get it for him, that he would insist on wanting to go and buy it himself?
James W. Knapp: Oh, I don't think it made any difference to him how he got it.
Tom C. Clark: That's what I mean.
James W. Knapp: But as his -- his testimony is that he asked him to -- to put him in touch with a source and did not ask him to sell him the narcotics.
Earl Warren: Well that -- that (Voice Overlap) --
James W. Knapp: Now, that --
Earl Warren: I didn't say that.
James W. Knapp: All right, sir. Is there any other --
Henry A. Lowenberg: Now, I'd just like to have (Voice Overlap) --
Earl Warren: Yes, yes, you may.
Henry A. Lowenberg: -- about two or three minutes. If the Court pleases, the direct transcript will show on page 67 that this Kalchinian was convicted in 1952. On page 99, it'll show that he had promised to cooperate with the Government in 1951. And that was before his sentence. So that he was cooperating with the Government up to the time that he got a suspended sentence in 1952, which was past the dates of this alleged division of narcotics between Kalchinian and Sherman. Now he -- as on the question as to whether he was a hired man or not, all I will say to this Court is this. That Kalchinian (Inaudible) admitted on a witness stand. He says, "I didn't want to go to jail, that was all there was to it. I was ready to do anything, cooperate with the Government. That was my purpose to save myself from going to jail." Well, that's payment sufficient for anybody.
Earl Warren: Yes.
Speaker: (Inaudible)
Henry A. Lowenberg: Pardon me?
Speaker: What sentence (Inaudible)
Henry A. Lowenberg: Ten years, under the statute, because prior -- two prior convictions, mandatory ten years, that's it. Ten years for being an addict, being in a doctor's office and being induced by a fellow addict employed by the Government.
Earl Warren: Gentlemen, we have one more case on the calendar, Number 92. Counsel here from out of town, I wonder if they would rather hear that -- hear it on Monday afternoon or have it continued to the February calendar
Speaker: (Inaudible)
Earl Warren: All right, it's a -- a summary case. Well, you could -- you could let us know. You can let us know after we -- after we adjourn (Inaudible)
Speaker: All right. Thank you.