(concurring in the order denying petition for rehearing) :
Since the sole purpose of this concurring opinion is to comment upon the dissent to the order denying the petition for rehearing, the dissent should be read first.
Walton was convicted of two violations of the narcotics and tax laws. He was given concurrent sentences. Walton’s only defense was entrapment. With regard to the first transaction, which occurred about noon on September 20,1967, Walton alleged that he was entrapped by Narcotic Agent Aubrey Abbey and a Government informant, Julius Bishop. Bishop was not present at the time of the second transaction, which took place in the evening of the same day. Walton’s allegation of entrapment on that occasion was therefore limited to the activities of Agent Abbey.
The dissent is directed exclusively to the asserted error of the trial court in preventing Walton from testifying as to what Bishop told him when they met at a tavern prior to the first transaction. For the following reasons I do not believe this asserted error entitles Walton to a rehearing and a reversal of the convictions :
1. Point raised for first time in petition for rehearing. This question was not raised in Walton’s briefs on appeal, nor in oral argument, but was advanced for the first time in his position for rehearing. The question therefore ought not to be considered now unless it involves plain error. Higa v. Transocean Airlines, 9 Cir., 230 F.2d 780, 786, on petition for rehearing; Mitchell v. Greenough, 9 Cir., 100 F.2d 1006.
I do not believe that the exclusion of this evidence constituted plain error affecting substantial rights (Rule 52[b], Federal Rules of Criminal Procedure), thereby permitting consideration of the question at this time. As stated in the opinion, Narcotic Agent Abbey, whom the jury obviously believed, testified that Walton told him that he (Walton) had been successfully peddling narcotics for the last sixteen years. According to Abbey, Walton revealed the exact procedures he followed in bringing narcotics from Hong Kong and Korea and distributing them in the Pacific Northwest. It taxes credulity to believe that such a man could have been unlawfully entrapped by what Bishop may have told him on the morning of September 20, 1967. An additional reason why there was no plain error is set forth under point 4 below.
2. Failure to make an offer of proof. At the trial Walton should have been permitted to testify as to his conversation with Bishop prior to the first narcotics transaction. However, no offer of proof was made demonstrating that such testimony would have revealed anything significant with regard to the entrapment defense. Accordingly, we have no way of ascertaining whether the erroneous sustaining of the objections to these questions was prejudicial to Walton. For all we know, Walton’s testimony concerning Bishop’s conversation would have been wholly innocuous.
The fact that the questions were proper does not excuse the failure to make an offer of proof. On the question of prejudice the problem does not involve the propriety of the questions, but whether they would have elicited any testimony helpful to the party in whose behalf the questions were asked. Only an offer of proof would have revealed this.
Walton asks us to accept two brief excerpts from his testimony (cut off or stricken by the trial court) as a substitute for an offer of proof. One of these excerpts was to the effect that Bishop would buy “two pieces” of “stuff” from Walton. The other was to the effect that Bishop wanted Walton to go with Bishop to get the “stuff” from an unnamed seaman, and that Bishop wanted more “stuff.”
Even if we accept these bits of testimony as offers of proof, it is plain in my opinion that remarks of this character *293made by Bishop, have no tendency to show that Walton was unlawfully entrapped. As stated in the opinion, entrapment is shown where Government agents go beyond the mere affording of opportunities or facilities for the commission of the offense and exert persuasion or pressure of one kind or another which induces the commission of a crime by one who had no disposition to do so.
If Bishop said anything else to Walton, which tended to show entrapment, there should have been an offer of proof covering it. See Fiano v. United States, 9 Cir., 271 F.2d 883, 885. On the fragmentary and informal offer of proof that was made, no prejudice in excluding the testimony was shown.
3. Any error was cured. If there was prejudicial error in excluding this evidence during the course of the trial, it was cured when the trial court reopened the trial to permit Walton to testify concerning remarks made to him by Bishop and the unnamed seaman.
Upon consideration of the entire reporter’s transcript of the reopened trial, quoted in a footnote to the dissent, I do not agree that Walton was unduly restricted in giving such testimony.
Eight questions were asked of Walton during the reopened trial. It may be that, in rejecting the first question asked of Walton after that trial had been reopened, the trial court unnecessarily restricted Walton’s testimony. That question: “Mr. Walton, would you please set forth to the Court the conversation that transpired between yourself and Mr. Bishop at. * * *” probably should not have been cut off.
But any error in this respect was cured a moment later when, in cutting off the second question, which was obviously leading, the trial judge said: “Why don’t you direct his [Walton’s] attention to a specific subject matter which you want him to talk about, and then ask him to relate the conversation ? ” Had counsel for Walton accommodated himself to this suggestion he could have asked Walton about any conversation he had with Bishop relevant to the entrapment defense. But, instead, counsel came back with a question (the third question) which contained a number of recitals which the trial judge was warranted in rejecting.
Counsel then asked Walton a proper question, (the fourth question) “What did Mr. .Bishop state to you once you informed him that the seaman had this stuff? ” Walton began to make an unresponsive answer. His own counsel cut him off by repeating his proper question (the fifth question). Walton answered the question without objection, saying: “That he would take a piece, he wanted a piece, he had some people that wanted quite a bit.”
Counsel then asked Walton whether Bishop asked Walton to get this piece from the seaman (the sixth question). Walton answered “Yes,” without objection. But then Walton went on to make an unresponsive comment about the seaman, and he was again properly stopped by the trial judge. This ended Walton’s examination by his counsel as to his conversation with Bishop. The seventh and eighth questions, pertaining to Walton’s conversation with the seaman, were answered without objection. In my opinion Walton was not limited in testifying to his conversation with either Bishop or the seaman — he just had nothing significant to report relevant to the entrapment defense.
The dissent quotes a remark by the trial court to the effect that Walton would be permitted to tell what the seaman said to Walton. The dissent seems to be making the point that the trial court was thereby preventing Walton from testifying as to what Bishop (rather than the seaman) said. But this remark by the trial court was made with reference to Walton’s unresponsive testimony (in answer to the sixth question) “Yes, and the seaman refused to go along with it.” As indicated above, Walton was permitted to testify as to what Bishop told him.
*2944. Any error related only to the conviction based on the first narcotics transaction. If there was prejudicial error in refusing to permit Walton to testify as to what Bishop told him, it related only to the first narcotics transaction on September 20, 1967. Bishop was not present that evening when Walton made his second sale to Abbey. How could anything Bishop said to Walton at noon on September 20, 1967, with reference to a narcotics transaction shortly to be consummated between Walton and Abbey, “entrap” Walton with reference to a second transaction Walton had with Abbey in the absence of Bishop, at 8:30 p. m. that evening ?
The sentences were concurrent. Therefore error as to the first transaction, which could not have infected the second, need not be noticed. Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 2 L.Ed.2d 321; Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 73 L.Ed. 692; Mendez v. United States, 9 Cir., 349 F.2d 650, 652; Head v. United States, 9 Cir., 346 F.2d 194, 196; Brothers v. United States, 9 Cir., 328 F.2d 151, 157. Federal judges are adjured, by Rule 52(a), Federal Rules of Criminal Procedure, to disregard any error, defect, irregularity or variance which does not affect substantial rights.