(dissenting) :
I would affirm.
*960I accept, as do my brethren, Judge Learned Hand’s analysis of the defense of entrapment:
“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 question the accused has the burden; on the second the prosecution has it.” United States v. Sherman, 200 F.2d 880, 882-883 (2d Cir. 1952).
I differ with the majority over what constitutes inducement. The majority believes that the accused satisfies his burden on the issue of inducement by showing a mere offer by a government agent to purchase narcotics. I find no justification for this position.
Under the authorities much more serious police misconduct must be shown. See, e.g., Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381 (1963); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819 (1958); Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, (1958); Berry v. United States, 116 U.S.App.D.C. 375, 324 F.2d 407, 409 (1963), cert. denied, 376 U.S. 959, 84 S.Ct. 972 (1964); Hester v. United States, 303 F.2d 47 (10th Cir.), cert. denied, 371 U.S. 847, 83 S.Ct. 80 (1962); United States v. Lile, 290 F.2d 225 (6th Cir. 1961); United States v. White, 223 F.2d 674, 676 (2d Cir.), cert. denied, 350 U.S. 888, 76 S.Ct. 143 (1955); Note, Entrapment: An Analysis of Disagreement, 1965 B.U.L.Rev. 542, 553 n. 70 (1965); Note, Entrapment, 73 Harv. L.Rev. 1333, 1336 (1960).
In Sherman v. United States, 356 U.S. 369, 373, 78 S.Ct. 819, 821 (1958), the Court held that it was “patently clear that petitioner was induced” by the unsavory conduct of the police informer because:
“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. One request was not enough, for Kalchinian tells us that additional ones were necessary to overcome, first, petitioner’s refusal, then his 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.” (Emphasis added.)
In Lopez v. United States, supra, 373 U.S. at 434-35, 83 S.Ct. at 1385, the Court said:
“The conduct with which the defense of entrapment is concerned is the manufacturing of crime by law enforcement officials and their agents. Such conduct, of course, is far different from the permissible stratagems involved in the detection and prevention of crime. Thus before the issue of entrapment can fairly be said to have been presented in a criminal prosecution there must have been at least some showing of the kind of conduct by government agents which may well have induced the accused to commit the crime charged.” (Emphasis added.)
All of the cases cited by the majority as “condemning a failure to put the issue [i.e., entrapment] to the jury” are readily distinguishable from the case at bar since they involve allegations of serious police misconduct.
The principal justification for the defense of entrapment is that it deters wrongful police conduct. Entrapment cases often arise in situations (e.g., illegal sales of narcotics, liquor or firearms) in which no unwilling victim is involved, and in which it would be virtually impossible to detect or prove the commission of a crime without an offer to purchase. As the Commentary to the *961Model Penal Code, § 2.10 at 16 (Tentative Draft No. 9, 1959) notes:
“The principal difficulty in defining the police conduct which gives rise to the defense has lain in the fact that some tactics employing misrepresentation and persuasion are necessary to successful police work and ought not to be forbidden. In many cases the need for techniques of this sort clearly overbalances the risk of inducing offending by the innocent. * * * Misrepresentation by a police officer or agent concerning the identity of the purchaser of illegal narcotics is a practical necessity. * * * Therefore, the law must attempt to distinguish between those deceits and persuasions which are permissible and those which are not.”
See Sorrells v. United States, 287 U.S. 435, 441, 53 S.Ct. 210, 212 (1932) (“Artifice and stratagem may be employed to catch those engaged in criminal enterprises”).
In view of the authorities, I cannot understand why my brothers have shifted the burden against the government and hold that appellant’s “production of any evidence negating propensity, whether in cross-examination or otherwise, requires submission to the jury, however unreasonable the judge would consider a verdict in favor of the defendant to be.”
In contrast with the police conduct in all of the cases cited by the majority, appellant has not sustained his burden of showing inducement. All that we have here is a mere offer to purchase narcotics and swift acceptance.
It is true that appellant quoted Agent Paschal as saying that he and his wife were “sick” (i. e., suffering the effects of withdrawal), but this is irrelevant since appellant also testified that the large quantity of narcotics purchased and Paschal’s statements led him to believe “that he [Paschal] was a seller.”
Moreover, appellant testified as to the second transaction that Paschal “asked me could I get him more stuff,” and “I told him I don’t know, I’d havje to get out and see.” There was no mention of sickness.
This case is indistinguishable from United States v. Lile, 290 F.2d 226 (6th Cir. 1961), where the district judge properly refused to charge on entrapment. See United States v. Place, 263 F.2d 627, 629, (2d Cir.), cert. denied, 360 U.S. 920, 79 S.Ct. 1439 (1959).