(dissenting) :
I regret that I am unable to concur. Under the principles enunciated in Notaro v. United States, 9 Cir., 1966, 363 F.2d 169, approved by this Court in United States v. Harrell, 5th Cir. 1970, 436 F.2d 606, 612 n. 6, I would reverse appellant’s conviction in the instant case.
In Notaro, the following charge on entrapment was rejected:
If, then, the jury should find beyond a reasonable doubt from the evidence in the case that before anything at all occurred respecting the alleged offense involved in this ease, the accused was ready and willing to commit crimes such as charged in the indictment, whenever opportunity was offered and that the Government agents did no more than offer the opportunity, the accused is not entitled to the defense of unlawful entrapment.
On the other hand, if the jury should find from the evidence in the case that the accused had no previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some agent of the Government, then the defense of unlawful entrapment is a good defense and a jury should acquit the defendant.
363 F.2d at 173.
The trial court in the instant case charged:
The burden of proof in this case is on the Government to prove that there was no unlawful or illegal entrapment, and to do that, as they are required to do other things, to do it with the evidence beyond a reasonable doubt. Now, in this case, Harrell offers as a defense that he was unlawfully entrapped. Where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law enforcement officers to commit a crime, he's entitled to the defense of entrapment; because the law, as a matter of policy, forbids conviction in cases like that. On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that government agents provide what appears to be a favorable opportunity is no defense . . . If, then, you, jurors should find from the evidence that, before anything at all occurred respecting the offenses involved here, Harrell was ready and willing to commit crimes such as those charged in this indictment whenever the opportunity presented itself, and the Government merely offered him the opportunity, then Harrell is not entitled to the defense of entrapment, If, on the other hand, you jurors should find that Harrell had no previous intent or purpose to commit any offense as charged in this indictment, and did so only because he was induced or persuaded by some agent of the Government; then the prosecution, the law says, has secured an innocent person, and the defense of entrapment is a good defense and the defendant should be acquitted. (Emphasis added)
In both cases, the first part of the charge properly conveys advice to the effect that appellant was not entitled to the defense of entrapment if the jury should find beyond a reasonable doubt that he was ready and willing to commit the offense and that the government agents did no more than provide the opportunity. In both cases, however, the second part of the charge, pointing directly to the elements of the defense and using the emphasized language, likely created the impression in lay minds that appellant carried the burden on the positive elements of his defense. I thus see no distinction between Notaro and the instant case.
The majority quotes language of the trial court indicating his intent to make clear that the reasonable doubt standard was to be applied to the entrapment defense. I have no doubt that the trial court made a conscientious effort to follow the mandate of this Court in the previous appeal of this case. His failure *660to do so, however, makes any intent on his part irrelevant and necessitates a reversal here.
I respectfully dissent.