concurring.
Were it not for the entrapment instruction exception which this court has long recognized, I would affirm.
The entrapment instruction which was given was not as explicit as it might have been in placing on the government the burden of proving that the defendant was not entrapped. On the other hand, there was no suggestion in the instruction that entrapment was an affirmative defense which the defendant had the burden of proving before he was entitled to acquittal.
Throughout the instructions the jury was continually reminded where the burden of proof lay on all the issues. It was plainly stated:
The entire burden of proof is upon the government from the beginning to the end of trial, and this burden of proof never shifts from the government to the defendant, and the defendant is not bound to prove his innocence, offer any excuse, or explain anything.
If any juror in the case, considering the instructions as a whole as the jury was instructed to do, had any belief that the burden rested on the defendant to prove his innocence by reason of entrapment, I would have serious doubts about the qualifications of that person to serve on the jury.
I believe it is time to reexamine our rule which seems to me has now become crystalized to an extent not contemplated by Landry. In that case the court noted that the evidence constituted a “close question on the issue of entrapment.” I do not view the evidence in the present case as close. There is no need for an inflexible entrapment instruction rule which requires us to ignore the realities in a particular case.