dissenting.
Because I believe that a jury instruction on the affirmative defense of entrapment which fails specifically to place the burden of proof on the Government is deficient and cause for reversal, I dissent. The majority attempts to distinguish United States v. Landry, 257 F.2d 425 (7th Cir. 1958), and United States v. Gardner, 516 F.2d 334 (7th Cir.), cert. denied, 423 U.S. 861, 96 S.Ct. 118, 46 L.Ed.2d 89 (1975), from this appeal, but the court today effectively overrules both of these opinions. The majority contends that Landry and Gardner apply only in a “close case” on the entrapment issue and that the instant case is not close. Considering the instructions in their entirety, the majority concludes that “[although it is preferable to specifically allocate the entrapment burden of proof to the government in the entrapment instruction, we believe that the jury in this case was adequately and properly instructed.” Supra, p. 1029. In other words the majority says that a defect in an affirmative defense instruction can be cured (in some cases) by considering the instructions as a whole. Landry and Gardner do not stand for this proposition.
The Landry court noted that:
The government in the main attempts to justify the instructions on the basis that they must be considered in their entirety, that the jury was told that the government had the burden of proving defendant guilty beyond a reasonable doubt and, further, that in any event no prejudicial error was shown. This is a stock argument and in some cases will suffice. In this case, however, where the record presents a close question on the issue of entrapment, we think the jury should have been instructed that the burden was upon the government to satisfy the jury beyond a reasonable doubt that the defendant was not entrapped into committing the acts alleged which, absent entrapment, constituted the offenses. See O’Brien v. United States, 7 Cir., 51 F.2d 674, 677; Ryles v. United States, 10 Cir., 183 F.2d 944, 945. We further are of the view that failure to so instruct the jury was prejudicial.
United States v. Landry, supra, 257 F.2d at 430. If Landry were the only case which dealt with this problem, the majority’s contention might well be correct. But Landry does not stand alone. Addressing the same *1031issue eighteen years later this court in Gardner stated that “[T]he jury was not misled and . . . the burden was properly placed” where the trial court’s charge “. . . stated that the burden is on the Government to prove beyond a reasonable doubt that the defendant was not entrapped.” United States v. Gardner, supra, 516 F.2d at 348 (emphasis in original). Without making any reference to whether a case was close, the Gardner court set out in the margin an entrapment instruction and explicitly stated:
The instruction should also make clear that the burden is on the Government to prove beyond a reasonable doubt that the defendant was not entrapped.
Id. at 348 n. 11. Based on the above the instructions given by the trial court in the present case were plainly erroneous.
Any doubts regarding this interpretation of Landry and Gardner should have been dispelled by our opinion in United States v. Jackson, 569 F.2d 1003 (7th Cir. 1978). In Jackson the court confronted the problem whether a trial court’s failure to read an instruction regarding the Government’s burden of proof on the issue of self-defense (an affirmative defense like entrapment) was plain error. The Jackson court found that defense counsel did not properly object to the instruction but held that:
When the record contains evidence sufficient to support a finding of self-defense, it is the government’s burden to prove beyond a reasonable doubt that the defendant did not act in self-defense. See Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); United States v. Corrigan, 548 F.2d 879, 883 (10th Cir. 1977). Failure to give this instruction, if properly objected to, is ground for reversal.
Id. at 1008 n. 12. In the instant case the record does contain evidence sufficient to support a finding of entrapment, and defendant properly objected to the entrapment instruction as given. The fact that Jackson involved self-defense while this appeal concerns entrapment is irrelevant. Both entrapment and self-defense are affirmative defenses and, for the purpose of the allocation of the burden of proof, they are indistinguishable. Thus the Landry-Gardner-Jackson trilogy requires reversal.
Assuming arguendo that a defect in an entrapment instruction can be cured by considering the instructions as a whole, the instructions here failed adequately to inform the jury that the prosecution’s burden of proof applied to defendant’s affirmative defense. Emphasis must be placed on “the importance of avoiding confusion as to the burden of proof when an affirmative defense such as entrapment, insanity, or self-defense is asserted.” United States v. Corrigan, 548 F.2d 879, 881 (10th Cir. 1977). In Corrigan the court determined that the instructions taken as a whole did not cure a self-defense instruction which failed specifically to allocate the burden of proof to the Government. Finding the instructions inadequate the court stated:
We are not saying the burden of proof should be reiterated in each separate instruction. In the case of an affirmative defense, however, the potential for misinterpretation is too great to permit ambiguity. An affirmative defense admits the defendant committed the acts charged, but seeks to establish a justification or excuse. In the absence of clear instructions, it is not unlikely that the jury would infer that the government has borne its burden and that it is up to the defendant to establish his justification. This is contrary to the standard of proof beyond a reasonable doubt on all elements of the offense; the defense of self-defense is directed toward negating the element of criminal intent. The best policy is summarized in Notaro v. United States, [363 F.2d 169, 175 (9th Cir. 1966)].
“The desire of a careful judge to avoid language which to him may seem unnecessarily repetitive should yield to the paramount requirement that the jury in a criminal case be guided by *1032instructions framed in language which is unmistakably clear.”
United States v. Corrigan, supra, 548 F.2d at 883.
In light of the “paramount requirement" that affirmative defense instructions be “unmistakably clear,” the instructions in the instant case were not sufficient. The majority, concluding that the instructions on entrapment were not “vague or ambiguous," bases its holding on a general statement extracted from the middle of the fifth instruction. This particular instruction states that the “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.” This instruction does not explicitly cover the situation where, as here, the defendant does offer an excuse. And “[a] specific instruction which is defective in respect to the burden of proof is not remedied by correct general statements of the law elsewhere given in the charge unless the general statement clearly indicates that its consideration must be imported into the defective instruction.” DeGroot v. United States, 78 F.2d 244, 253 (9th Cir. 1935). The general instruction relied on by the majority states three times that the Government’s burden of proof applies to “every essential element and fact allegation of the charges in the indictment.” But nowhere in this instruction is it “clearly indicated” this principle applies to the entrapment issue. Accordingly, the possibility that there was confusion or misunderstanding was not eliminated by this or any other general instruction. Furthermore, the fact that the burden of proof was reiterated in some of the other instructions (e. g., instructions 5, 6, 11, and 12), but left out of the entrapment instruction easily could have led the jury to speculate that the burden of proof on the entrapment issue was different, that is, on the defendant rather than the Government.
Finally, this court’s decision is in direct conflict with a recent Fifth Circuit decision. United States v. Wolffs, 594 F.2d 77 (5th Cir. 1979). The court there held that it was reversible error not to instruct the jury specifically that the Government has the burden to prove beyond a reasonable doubt that there was no entrapment. I quote from the Fifth Circuit’s opinion at length:
The language of an entrapment instruction must unmistakably apprise the jury that the burden is upon the government to prove beyond a reasonable doubt that, before anything at all occurred respecting the alleged offense for which the defendant is being prosecuted, the defendant was ready and willing to commit such crimes whenever an opportunity was afforded, and that government agents did no more than offer the opportunity. The instruction also must be unmistakably clear in informing the jury that if the evidence in the case leaves a reasonable doubt as to whether defendant had the predisposition to commit an offense of the character charged, apart from the government inducement or persuasion, the defendant must be found not guilty.
The government also argues on this appeal that the district court’s general charge on the government’s burden of proving guilt beyond a reasonable doubt cures any defect with the specific portion of the charge dealing with entrapment. This argument was also made and rejected in Notaro.
In reaching our conclusion, we have been mindful of [our] obligation to consider the instructions in their entirety. The jury was properly informed, in a general instruction, as to the burden of proof which rested upon the prosecution; however, we cannot assume that it carried the advice of the general instruction into application to the instruction emphasizing the specific elements of the defense [of entrapment]. The possibility that there was confusion or misunderstanding is strengthened, not eliminated, by view of the instructions as a whole. *1033363 F.2d at 176. We find the same to be true in the case sub judice. The absence of any “reasonable doubt” language within or in close proximity to the specific instruction on entrapment reasonably could have confused the jurors into believing that a lesser standard of proof applied to the defense. An example of “reasonable doubt” language sufficiently connected to the entrapment instruction is found in United States v. Smith, 588 F.2d 111 (5th Cir. 1979).
Id.
Having read all the instructions, I am left with the impression that the instructions on the entrapment issue were not “unmistakably clear.” United States v. Corrigan, supra, 548 F.2d at 883. This impression is not changed by the majority’s assertion that a flexible rule is needed to deal with the differing circumstances of particular cases. Supra, 1029. While it is true that two cases may have different circumstances, the burden of proof on the Government is identical if the record contains sufficient evidence to support a finding of an affirmative defense. The burden does not shift with “differing circumstances”; it is always the same and the rule governing instructions should be rigid. An entrapment defense may be so strong as to warrant a court to say that the defense has been proved as a matter of law; however, if there is any evidence of entrapment — and there was here — a correct entrapment instruction is required. The trial court failed to give this instruction and, accordingly, defendant’s conviction should be reversed.