(specially concurring):
I concur in the opinion written by my Brother RUBIN. But I must state briefly what I understand the court to be deciding.
As the majority point out, based on United States v. Sherman, 200 F.2d 880 (2d Cir. 1952), entrapment is concerned with two areas of evidence, the evidence of what the government did (the “inducement”) and the evidence of whether the defendant is one not likely or not ready to commit the crime (the “predisposition”). Sherman, repeatedly followed in this circuit and elsewhere, also establishes that the burden of proof of governmental activity is on the defendant and the burden of proof of predisposition is on the government. I understand that we do not depart from that principle.
If all the evidence establishes without contradiction that the government did not employ methods of persuasion or inducement that would create a substantial' risk that the offense would be committed by a person who was not ready to commit it, then there is nothing to go to the jury. If there is evidence which, if believed by the jury, would show that the government engaged in conduct which created a substantial risk that the offense would be committed by a person other than one ready to commit it, and if the jury could conclude, from all the evidence, that the defendant was not ready to commit the act (i. e., was not predisposed), then the matter must go to the jury; in this circumstance the court cannot take from the jury the question of whether the governmental conduct in fact did lead an innocent into transgression or did overcome the scruples of a person who otherwise would have resisted temptation.
For reasons stated in my dissent in Snowden v. United States, 384 F.2d 357, 358 (5th Cir. 1967) I do not draw my conclusions from what my associates in this case, drawing from a cryptic fragment of a sentence in Snowden, say is implicit in that decision.