United States v. Vincent Zambardi

WATERMAN, Circuit Judge

(concurring).

I concur in the result reached by the majority. However, I wish to add a little to their analysis, for I do not believe they deal sufficiently with one problem raised by Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848. In Sherman, 356 U.S. at page 374, 78 S.Ct. at page 822, the Court stated that entrapment is a defense not only to the initial act of tainted inducement but also as to subsequent acts which are the product of the original overture. It seems clear to me that here the acts on January 9th would not have occurred but for the acts occurring on January 7th, acts which Judge Palmieri has held to constitute entrapment. Thus, although defendant has not established entrapment as a matter of law as to either count as the majority opinion points out, there is an inconsistency in Judge Palmieri’s disposition of the defense of entrapment on the two counts. The majority hold that United States v. Maybury, 2 Cir,, 274 F.2d 899, is inapplicable here because they find no inconsistency in the disposition of the two claims of entrapment. I, on the contrary, find there is inconsistency ; but, even so, Maybury does not hold that there must be reversal in all cases where the trial judge, sitting as trier of fact in a criminal case, renders an inconsistent decision. Maybury requires reversal when there is an inconsistent appraisal of the credibility of evidence necessary to sustain the count upon which the defendant has been convicted. In this case we know that Judge Palmieri found the Government’s evidence as to defendant’s conduct on January 9th to be credible because it was on the basis of this evidence that Judge Palmieri refused to allow the defense of entrapment as to the conspiracy count (R. 150). Had Judge Palmieri considered defendant’s conduct on January 9th as bearing on defendant’s character on January 7th, a matter which Sherman, supra, 356 U.S. at pages 372-373, 78 S.Ct. at pages 820-821, states to be of crucial importance in evaluating a defense of entrapment, quite likely he would have refused to allow the defense of entrapment to the substantive count. Thereby, to be sure, the inconsistency would have been avoided, but defendant would remain convicted just the same on the substantive count. Hence, on a substantially different rationale than that of the majority, I, too, would hold that Maybury is inapplicable here.