United States v. Albert Keith Webster

GODBOLD, Circuit Judge,

concurring specially:

I concur in the result but only because I am bound to do so. I have always thought that this circuit is wrong in permitting the prosecution, where the defendant pleads entrapment, to introduce hearsay testimony as tending to prove the defendant’s predisposition to commit the crime or the reasonableness of the government’s actions, or both. The criticism leveled at us by the Ninth Circuit’s opinion in U. S. v. McClain, 531 F.2d 431 (CA9, 1976) is justified.

To understand considerations that are involved one needs to examine the sub-issues *586that make up an entrapment defense, the shifting evidentiary burdens, the quantum of evidence required to satisfy each burden, and the respective roles of trial judge and jury.

An entrapment defense comes to life when the defendant presents a prima facie case that the government’s conduct has created “ ‘a substantial risk that the offense would be committed by a person other than one ready to commit it.’ ” U. S. v. Gomez-Rojas, 507 F.2d 1213 at 1218 (CA5, 1975); Pierce v. U. S., 414 F.2d 163 at 168 (CA5, 1969).1 Whether the defendant makes out a prima facie case of substantial governmental involvement is a question of law for the court. Pierce, supra, 411 F.2d at 168.

Once the court rules that the defendant has satisfied his burden of evidence sufficient to raise a question for the jury of whether there is governmental conduct creating a substantial risk, then the government must come forward with evidence sufficient to prove beyond a reasonable doubt that the defendant was predisposed to commit the offense. U. S. v. Dickens, 524 F.2d 441 (CA5, 1975). If the government adduces enough evidence to get to the jury on predisposition, then the ultimate issue of entrapment is submitted to the jury. Pierce v. U. S., supra.

It is against this background that we must balance the prejudice and probative value of the hearsay admitted in this case against the defendant. The camel’s nose used by the prosecution, and permitted by our cases, is that the evidence gave the government reasonable probability to suspect that the defendant might be engaged in drug activities, and, therefore, tended to prove that the government’s activities with respect to defendant did not create “ ‘a substantial risk that the offense would be committed by a person other than one ready to commit it.’ ” I. e., the risk was not “substantial” because the government had sufficient reason to believe that defendant was not “ ‘a person other than one ready to commit it.’ ”2 Thus the hearsay evidence comes in on an issue of law reserved to the court.3 Once it is in evidence, the real impact is on the issue of predisposition, which is an issue reserved to the jury. In addition, predisposition is not a reasonable probability issue but a “yes” or “no” issue. In truth, all know that usually the real purpose of the evidence’s being offered is its impact on the jury on the issue of predisposition. The final result is that on the ultimate issue of guilt or innocence the defendant is sorely prejudiced by “bad man” evidence. If the offer of “bad man” evidence was offered in some context other than the Byzantine intricacies of entrapment, we would not even consider admitting hearsay. But, hypnotized by the miniscule camel’s nose I have described, we permit the destructive evidence to come in full blast.

Our decisions simply have not addressed these problems but, in a broad-brush fashion, have said that entrapment involves a charge that the government has done bad things to the defendant and therefore it is all right for the government to show that it had good reason to think that the defendant was a bad person (whether he really is or not). This simplistic approach overlooks the *587real considerations that careful scrutiny brings to the surface.

The fallacy of this circuit’s approach is demonstrated by the rationale of our early cases addressing this problem. We permitted hearsay evidence of the defendant’s reputation which, though essentially a hearsay concept, bore upon the government’s “reasonable cause to believe” that I have described above. E. g., U. S. v. Robinson, 446 F.2d 562, 564 (CA5, 1971). But, as the present case demonstrates, we have left the limits of reputation evidence and now roam free, permitting evidence of prior specific acts of some person never even properly identified as the defendant. If predisposition to commit an offense were an issue considered in isolation we would not seriously entertain the notion that the fact of predisposition could be proved by this kind of amorphous report from a faceless informer describing specific incidents committed by an unidentified person.

U. S. v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), does not change the picture but reinforces what I have said. In Russell the defendant acknowledged that the evidence supported the jury finding that he was predisposed and he sought to escape this by urging that protection against over-zealous governmental actions was of constitutional dimension, i. e., that he was unconstitutionally “entrapped” even though he was predisposed. In declining to accede to defendant’s effort, the Court described predisposition as the principal element of the defense and governmental conduct as less significant. This being so, it would seem all the more important that hearsay not slip into the case on the dubious ground that it is somehow relevant to the secondary issue (governmental conduct) when its main prejudicial force strikes at the principal issue (predisposition).

. The Supreme Court has described this same prong of entrapment as “whether the government ‘instigated the crime.’ ” U. S. v. Russell, 411 U.S. 423 at 429, 93 S.Ct. 1637, at 1641, 36 L.Ed.2d 366 at 372 (1973).

. Obviously there is some risk, because the defendant actually might not be a person ready to commit the offense. Determining whether he is or is not is a “yes” or “no” question, not a matter of reasonable probability, and all the good heart and proper motive of the government could not make the answer “yes” if it properly was “no.”

. And even then in a very tangential sense. Usually, in considering the question of law presented to it, the court is focused on evidence of what the government did and not on why it did it. Often the defendant does not implicate the government’s motive; if for no other reason, he will not have access to evidence of motive. It is only on the narrow pinpoint of “no substantial risk” that the defendant is an innocent lamb (an issue of law for the court) that the government is permitted to bring in what amounts to a premature affirmative defense that the defendant is a bad person.