(dissenting).
I dissent. The defendant requested an instruction on entrapment, which was refused. In Brainin v. United States, 314 F.2d 460, rehearing denied, 317 F.2d 69 (5th Cir. 1963), relied on by the majority, the defendant did not ask an instruction and on appeal claimed there was entrapment as a matter of law.
This Court, in Suarez v. United States, 309 F.2d 709 (5th Cir. 1962), held that entrapment “is an issue to be decided by a jury, unless the evidence admits of no other interpretation but that the defendant was entrapped.”
In Kivette v. United States, 230 F.2d 749 (5th Cir. 1956) this Court adopted the oft-quoted two-step analysis of entrapment cases which Judge Learned Hand had laid out in United States v. Sherman, 200 F.2d 880, 882-883 (2d Cir. 1952):
“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.”
There was more than adequate evidence in this case to make a jury question on inducement. The government did not produce evidence sufficient to even make a jury question on predisposition.