(concurring in part and dissenting in part).
This case presents the question of entrapment by federal officers, a problem which has troubled the conscience of the court on other occasions. Mr. Justice Roberts, concurring in Sorrells v. United States, 287 U.S. 435, 459, 53 S.Ct. 210, 219, 77 L.Ed. 413 (1932), stated the principle as follows:
“The applicable principle is that courts must be closed to the trial of a crime instigated by the government’s own agents. No other issue, no comparison of equities as between the guilty official and the guilty defendant, has any place in the enforcement of this overruling principle of public policy.”
At page 457 in the same opinion, 53 S.Ct. at page 218, Mr. Justice Roberts expanded on this principle:
“ * * * The protection of its own functions and the preservation of the purity of its own temple belongs only to the court. It is the province of the court and of the court alone to protect itself and the government from such prostitution of the criminal law. The violation of the principles of justice by the entrapment of the unwary into crime should be dealt with by the court no matter by whom or at what stage of the proceedings the facts are brought to its attention. * * ”
Similarly, Mr. Justice Frankfurter has expressed concern over the Government’s creation of crime:
“ * * * Furthermore, a test that looks to the character and predisposition of the defendant rather than the conduct of the police loses sight of the underlying reason for the defense of entrapment. No matter what the defendant’s past record and present inclinations to criminality, or the depths to which he has sunk in the estimation of society, certain police conduct to ensnare him into further crime is not to be tolerated by an advanced society. * * * ” Sherman v. United States, 356 U.S. 369, 382-383, 78 S.Ct. 819, 826, 2 L.Ed.2d 848 (1958).
Irrespective of these and other expressed misgivings as to the Government’s participation in crime, it is still the law that presenting a predisposed suspect, who is ready, willing and able to commit crime, the opportunity to do so is not entrapment. See Hansford v. United States, 112 U.S.App.D.C. 359, 362, 303 F.2d 219, 222 (1962), and cases there cited. The issue presented by this appeal, however, is not entrapment as a matter of law, but entrapment as an issue for the jury. Did the prosecution prove to the jury’s satisfaction beyond a reasonable doubt that the defendant was ready, willing, and able to sell the drugs and that the Government merely presented him the opportunity to violate the law? The defendant requested an instruction on entrapment to assist the jury in deciding this issue and it was refused, the trial court ruling, “There is no evidence of entrapment in this case. *410No evidence at all to warrant a charge on entrapment.”
In so ruling, the trial court was obviously in error.1 The Government’s evidence shows that the purchases from the defendant were made by a Government agent, using a drug addict as an intermediary, and by the intermediary himself, both purchases being made with Government money. The evidence further shows that the agent and the informant sought out the defendant and asked for the drugs, the drug addict informant assuring the defendant that the Government agent “was O.K.” Incidentally, the Government’s evidence also shows that the informant was paid by the Government for his work and that a possession of narcotics charge previously filed against him was dismissed.
Under these circumstances, it cam hardly be said there was no “showing of the kind of conduct by Government-agents which may well have induced the' accused to commit the crime charged.”' Lopez v. United States, 373 U.S. 427, 434-435, 83 S.Ct. 1381, 1385-1386, 10-L.Ed.2d 462 (1963). Without doubt, by offering to buy, the Government induced the defendant to sell. “As pointed out by Mr. Justice Frankfurter in his Sherman concurrence, the particular sale to an officer or police agent is always one induced by the purchaser.”2 The question, to be answered by the jury, then is: would he have sold to anyone he considered safe?3 Thus a jury issue on entrapment was raised and a charge on entrapment should have been given as to the sale counts in the indictment. Johnson v. United States, supra, Note 3.4
. The possession counts and the sale counts must be distinguished. As to possession, it is of coui'se true that there can be no entrapment if an accused had the narcotics in his actual custody at the very moment he was first approached by Government agents. If he should leave them after that first approach, however, to go and fetch the narcotics, then the issue of entrapment would be raised as to possession also.
. Trent v. United States, 109 U.S.App.D.C. 152, 154, n. 2, 284 F.2d 286, 288, n. 2 (1960). To the same effect, see Hansford v. United States, supra, 112 U.S.App.D.C. at 364, 303 F.2d at 224.
. In United States v. Sherman, 2 Cir., 200 F.2d 880, 882-883 (1952), Judge Learned Hand also stated the rule in two parts:
“Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the of-fence charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first questíon the accused has the burden; on the second the prosecution has it. * * * ”
See also United States v. Masciale, 2 Cir., 236 F.2d 601 (1956), affirmed, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859 (1958). The Hand doctrine has been adopted in this Circuit. Hansford v. United States, supra, 112 U.S.App.D.C. at 364, 303 F.2d at 224; Johnson v. United States, 115 U.S.App.D.C. 63, 317 F. 2d 127, 129 (1963).
. In Johnson, supra, Note 3, Judge Fahy wrote:
“ * * * Here the evidence does not show, as sometimes is the case, that personal importuning or coercive tactics were used by the ofScer to persuade appellant. We do have, however, the furnishing by the officer of Government money, itself a persuasive factor, to an intermediary acting for the officer in carrying out the tansaction, with a ‘reward’ to the accused of a part of its fruit. This is enough to raise a factual issue of official inducement for the jury to decide one way or the other. * * *” 115 U.S.App.D.C. at 64, 317 F.2d at 128.