(dissenting).
Disregarding all testimony not favorable to the prosecution, we have this basic fact on which this conviction must stand or fall: Before Marshall, the government agent, met the defendant, the latter had never been guilty of the crime of illegal dealing in narcotics or of anything like it. He had been twice convicted on charges of gambling, a fact to which my colleagues do not refer, obviously because gambling is a crime so wholly different in character that it must here be disregarded as a factor rebutting the defense of entrapment. So, to all intents and purposes, we have this simple case: A man, theretofore innocent of ci'iminal wrong-doing, is easily persuaded by a federal detective to do an act which a criminal statute, read literally, makes a crime.
The following illustration will help to bring sharply into focus the problem we face here: Mr. Weak meets Mr. D. E. Coy at a bar. Unknown to Weak, Coy is a plain-clothes detective. Coy knows that Weak has never committed a crime. But, over some drinks, Coy drops a hint about the two of them burglarizing a certain house. As the hint does not shock Weak, Coy more openly proposes the burglary. Weak agrees. The next night they break, into the house. Coy then arrests Weak. At Weak’s trial for burglary, he sets up-the defense of entrapment. Is the defense no good because of Weak’s willingness to accept Coy’s proposal? My colleagues say, Yes. I think the Supreme-Court says, No.
For the federal courts, the basic teaching on the entrapment doctrine is to be found in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 212, 77 L.Ed. 413. It tells us the following: Entrapment serves as a defense, not because of' any merit in the defendant, but solely because the government may not validly (except with the express statutory approval of Congress) manufacture a crime. Only if the defendant’s past conduct justifies the belief that, without, persuasion by a government officer, the-defendant would have committed that crime or a substantially similar crime, is that persuasion valid; it is then, and then only, proper as a means of obtaining evidence of a crime, like that which, would have occurred in any event, but. which might have been difficult to detect, other than by setting a trap, for “artifice and stratagem may be employed to catch, those engaged in criminal enterprises.”' The minority opinion in Sorrells’ case said that no statute could authorize the-conviction of a person, previously innocent of a substantially similar crime, on. evidence procured by trap-setting. The majority opinion did not go that far. It said that entrapment of such a person: would be no defense if Congress specifically so provided. But the majority opinion declared that, when Congress has-not explicitly so provided, an official in*605ducement to do that which the statute literally forbids “takes the case out of the purview of the statute because it cannot be supposed that the Congress intended that the letter of its enactment should be used to support such a gross perversion of its purpose. * * * We are unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them.” In short, under any federal statute now on the books, such a governmentally instigated act, on the part of a previously innocent person, is never a crime within the correct construction of the statute.1
In the light of Sorrells’ case, I think that, in the instant case, the prosecution did not succeed in rebutting the entrapment defense. I can see no rational basis for the distinction, which my colleagues draw, between (1) a case where the officer’s persuasion of the defendant is difficult and (2) one where it is easy.
If that distinction maintains, the result will be that the federal police — instead of devoting themselves to the job of catching criminals — may, when it pleases them, spend their time and government money turning potential into actual criminals, shoving over into criminality men who may be hovering on its brink. I think the narcotics police may not legitimately proceed on this principle (or un-principle): “There’s a man likely some day to violate the Narcotics Act. Let’s not wait to see whether he will. Let’s incite him to do so and then nab him.” This is neither the prevention of crime nor the detection and punishment of criminals. In such circumstances, the police have not caught a criminal; they have taught a man how to become a criminal. (Incidentally, what is their motive? Are criminals now in short supply? Do these federal police fear unemployment or believe they must make work for the judges lest they become loafers?)
If my colleagues’ distinction between an easy and a difficult persuasion is adopted, how will it work? Just what is an easy seduction? What is its measure? After how long a period of official instigation is a defendant’s literal infraction of a statute not a crime? Will it be a crime if he yields to a detective’s blandishments at the end of two or three months but not if at the end of eight or ten?
My colleagues do not cite a single precedent in accord with their position. Their only mention of Sorrells is in a footnote to their discussion of the one case on which they rely, United States v. Sherman, 2 Cir., 200 F.2d 880, 882. We there decided that the defense of entrapment — a defense to a charge of selling narcotics — had not been successfully rebutted by the prosecution because it had failed to show that Sherman had been in the habit of dispensing such drugs. Discussing Sorrells, we said that, once the accused proves that an official induced him to do the alleged illegal act, the prosecution has the burden of showing that the accused was “ready * * without persuasion and was * * * awaiting any propitious opportunity to commit the offence”, that he “did not need any persuasion”. Certainly the prosecution made no such showing in the case at bar. Indeed, the prosecution in Sherman had a much stronger basis for rebutting the entrapment defense than it has here. For, as we pointed out in Sherman, there the defendant, a drug addict, had been in the habit of illegally buying heroin for himself. True, in the course of discussing Sorrells in Sherman’s case, we also used the expressions, quoted by my colleagues here, that the prosecution could discharge its burden by showing that “the accused was ready and willing to commit the offence charged, whenever the opportunity offered”, and that he “stood ready to procure heroin *606for anyone who asked for it”. I think that my colleagues, by reading these expressions entirely out of their context, have misinterpreted the interpretation we gave Sorrells in Sherman’s case.
. Presumably there would be same result with respect to a common law crime, if there were such a thing in the federal system.