(concurring in part and dissenting in part):
The defense of entrapment is generally said to be based upon either estoppel or public policy. Sorrells v. United States, 287 U.S. 435, 457, 53 S.Ct. 210, 218 (1932). These concepts can only be called into play when someone has acted at the instigation or behest of the Government in inducing the defendant to commit the crime with which he is charged. My colleagues now propose to make the defense available to defendants whom the Government never sought to entice but who were influenced secondhand by a person to whom alone the Government’s inducements were directed. In so holding, the majority have rejected a rule of law that has received the approval of every court hearing criminal appeals in the federal system.
The Supreme Court has expressed the rule very simply. Entrapment, the Court says, deals with the manufacturing of crime by “law enforcement officials and their agents,” Lopez v. United States, 373 U.S. 427, 434, 83 S.Ct. 1381, 1385, 10 L.Ed.2d 462 (1963), with the performance of an illegal *1173act “at the instance of governmental officials,” Sorrells v. United States, supra, 287 U.S. at 451, 53 S.Ct. at 216. According to the Court, “[e]ntrapment occurs only when the criminal conduct was ‘the product of the creative activity’ of law enforcement officials.” Sherman v. United States, 356 U.S. 369, 372, 78 S.Ct. 819, 821, 2 L.Ed.2d 848 (1958) (quoting Sorrells v. United States, supra, 287 U.S. at 451, 53 S.Ct. at 216) (emphasis by Sherman Court). The Court has recognized as a standard entrapment instruction a charge that the jury should acquit if it had “a reasonable doubt whether the defendant had the previous intent or purpose to commit the offense .. . and did so only because he was induced or persuaded by some officer or agent of the government.” United States v. Russell, 411 U.S. 423, 427 n.4, 93 S.Ct. 1637, 1640, n.4, 36 L.Ed.2d 366 (1973).
The substance of this standard instruction was given on three occasions by the court below without objection from defense counsel. However, because both defendants were asserting an entrapment defense, the court also charged over defense objection that if one of the defendants (Mrs. Valencia) was entrapped and then went out and induced another defendant (Mr. Valencia) to become involved, the second defendant (Mr. Valencia) would not be entitled to' the defense of entrapment.1 The majority hold this to be error, stating that “[i]f a person is brought into a criminal scheme after being informed by an intermediary of conduct or statements by a government agent which could amount to inducement, then that person should be able to avail himself of the defense of entrapment just as may the person who receives the inducement directly.” Because I do not believe that the majority correctly state the law of the Second Circuit or of any other Circuit, I dissent.
The leading case in this Circuit on the subject of entrapment is United States v. Sherman, 200 F.2d 880, 882-83 (2d Cir. 1952). There, Judge Learned Hand described the issues of an entrapment claim in language that this Court still follows:
“(1) did [a government] agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offense. On the first question the accused has the burden; on the second the prosecution has it.” Id. (as quoted in United States v. Barnes, 604 F.2d 121, 160 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S.Ct. 1833, 64 L.Ed.2d 260 (1980).)
As Judge Hand interpreted the meaning of inducement, “it was that someone employed for the purpose by the prosecution had induced the accused to commit the offence charged, which he would not have otherwise committed.” United States v. Sherman, supra, 200 F.2d at 882.
In subsequent decisions, this Court has followed in Judge Hand’s footsteps. In United States v. Romano, 278 F.2d 202, 204 (2d Cir. 1960), we said that “in order to sustain the defense of entrapment it must appear that the government or someone acting for the government was the initiator of the defendant’s illegal acts in the sense of having induced the defendant to do what the defendant would otherwise not have been willing to do.”
In United States v. DeAlesandro, 361 F.2d 694, 698 (2d Cir.), cert. denied, 385 U.S. 842, 87 S.Ct. 94, 17 L.Ed.2d 74 (1966), where the alleged inducer was “neither a law enforcement official nor an agent of law enforcement officials”, we again held the defense of entrapment to be inapplicable. Quoting United States v. Romano, supra, we said that “[t]he primary reason for the defense of entrapment is that ‘it is unthinkable that the government should prosecute those whom it has urged to commit [the] crime.’ ” 361 F.2d at 698.
*1174In United States v. Buie, 407 F.2d 905, 908 & n.5 (2d Cir. 1969), aff’d, 396 U.S. 87, 89 S.Ct. 284, 24 L.Ed.2d 283 (1969), we said that entrapment does not arise from inducement by private citizens and approved a charge which stated that entrapment “must come from the government” and “must be done by a government official or somebody acting under his orders and direction.”
In United States v. Reed, 526 F.2d 740, 743 (2d Cir. 1975), cert. denied, 424 U.S. 956, 96 S.Ct. 1431, 47 L.Ed.2d 361 (1976), we cited with approval the Ninth Circuit case of United States v. Sanchez, 440 F.2d 649 (9th Cir. 1971), and held that “since the invitation to participate came, not from the Government but from appellant’s co-conspirator, there was no question of fact on the issue of inducement.”
It is extremely unlikely that Judges Friendly, Mulligan, and Gurfein, the able and experienced panel in United States v. Swiderski, 539 F.2d 854 (2d Cir. 1976), would have agreed among themselves to overturn the established doctrine of the above-cited cases without so much as a passing reference to the cases themselves. The fact of the matter is that they reached no such agreement, and they were not required by the evidence to do so. The thrust of the defense in Swiderski was that both Swiderski and his codefendant, Mariza De Los Santos were enticed or lured to an apartment by the Government informer for the purpose of “turning on” or “snorting” cocaine and were there forced to buy a quantity of cocaine for fear of bodily harm. Judge Gurfein, writing for the Court, said that if Mariza was induced to aid in the purchase of cocaine, “the inducement, on her testimony, was the luring of appellants to a room for a party and the subsequent instilling of fear by the government informer.” Id. at 859. A reading of appellants’ briefs in Swiderski makes crystal clear their own contention that the inducement which brought De Los Santos to the apartment came directly from the Government informer and that the cocaine came into her possession as a result of coercion exercised by the informer.
Assuming in the instant case that the informer was a Government agent, it is undisputed that there were no conversations between Mr. Valencia and the informer prior to the purchase of cocaine.2 It is also undisputed that Mrs. Valencia at no time acted in cooperation with the Government or under the Government’s direction and control for the purpose of getting her husband involved. She was not “employed for the purpose by the prosecution”, United States v. Sherman, supra, 200 F.2d at 882, and she conveyed no information to Mr. Valencia, wittingly or unwittingly, at the government’s behest. Indeed, both the informer and Mrs. Valencia testified that Mr. Valencia did not get involved in the cocaine transaction and had nothing at all to do with it.
The burden was on William Valencia to show that the Government induced him to participate in the illegal transaction. United States v. Braver, 450 F.2d 799, 801-03 (2d Cir. 1971), cert. denied, 405 U.S. 1064, 92 S.Ct. 1493, 31 L.Ed.2d 794 (1972). My brothers’ inference of a conversation between Mr. and Mrs. Valencia falls far short of satisfying this burden, particularly where there is no showing that the inferred conversation took place at the behest of the Government. In short, Mr. Valencia was not entrapped by the Government informer and, as the trial court charged, “[he] couldn’t be entrapped by his wife.” A review of the law in other circuits shows this to be the universally accepted rule.
United States v. Sanchez, supra, 440 F.2d 649, cited by this Court in United States v. Reed, supra, 526 F.2d at 743, is only one of a series of Ninth Circuit cases holding that “a defendant may not seek shelter under the defense of entrapment claimed by another.” See United States v. Gonzales, 461 F.2d 1000, 1001 (9th Cir.) (per curiam), cert. denied, 409 U.S. 914, 93 S.Ct. 230, 34 *1175L.Ed.2d 175 (1972). This rule is based sometimes upon the defendant’s lack of standing to raise the issue, United States v. Castanon, 453 F.2d 932, 934 n.1 (9th Cir.), cert. denied, 406 U.S. 922, 92 S.Ct. 1788, 32 L.Ed.2d 122 (1972), and sometimes upon the failure of the evidence to establish the elements of estoppel against the Government. Carbajal-Portillo v. United States, 396 F.2d 944, 946-48 (9th Cir. 1968). Pertinent citations from other circuits are as follows: Whiting v. United States, 321 F.2d 72, 76 (1st Cir.), cert. denied, 375 U.S. 884, 84 S.Ct. 158, 11 L.Ed.2d 114 (1963):
“If the inducement had come from parties having no connection with the government it would absolve him in no degree.”
United States v. Laverick, 348 F.2d 708, 713 (3d Cir.), cert. denied, 382 U.S. 940, 89 S.Ct. 391, 15 L.Ed.2d 350 (1965):
“It is obvious that a private individual may only be an entrapping party when an agency relationship exists between himself and the Government.”
United States v. Perl, 584 F.2d 1316, 1322 n.5 (4th Cir. 1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1050, 59 L.Ed.2d 92 (1979):
“[Entrapment] requires a showing that the government and the entrapper have an established relationship such that the government is estopped from denying responsibility for the entrapment.”
United States v. Garcia, 546 F.2d 613, 615 (5th Cir.), cert. denied, 430 U.S. 958, 97 S.Ct. 1608, 51 L.Ed.2d 810 (1977):
“Entrapment cannot result from the inducements of a private citizen but must be the product of conduct by governmental agents.”
United States v. Thompson, 366 F.2d 167, 173-76 (6th Cir.), cert. denied, 385 U.S. 973, 87 S.Ct. 512, 17 L.Ed.2d 436 (1966):
“ ‘Unlawful entrapment can only exist where a law enforcement officer or an agent of the government suggests or induces or persuades a person to commit an offense. An agent of the government may include, of course, any person acting upon the instructions or directions of any law enforcement officers of the United States.’ ”
United States v. Perkins, 190 F.2d 49, 52-53 (7th Cir. 1951):
“As we understand his contention, Perkins says that Riley was first entrapped and hence the entire transaction was vitiated ab initio, and that the defense of entrapment is likewise available to him. The mere statement of the proposition condemns it . . ..”
Beard v. United States, 59 F.2d 940, 941 (8th Cir. 1932):
“It is not entrapment that one has been induced by some other than a person acting for the government to commit a crime . . ..”
Holloway v. United States, 432 F.2d 775, 776 (10th Cir. 1970):
“Before the defense can fairly be said to have been presented, there must be some showing of conduct by government agents which may well have induced the accused to commit the crime charged.”
United States v. Mayo, 498 F.2d 713, 716 (D.C.Cir.1974):
“It is fundamental that a defense based on entrapment requires the ‘inducement by an official .... The entrapment defense does not extend to inducement by a private citizen ....’ If, however, a Government official uses a private citizen as an agent, and in such manner induces an otherwise unwilling person to commit an offense which that person would not have committed but for the inducement, then the defense will lie. (Footnotes omitted).3”
I have gone into this issue in some detail because I am convinced that the majority have delivered an unwarranted, yet resounding, blow to law enforcement efforts. If their “pass it along” concept of inducement is now to become the law of this Circuit, claims of entrapment will shortly *1176be forthcoming from individuals the government never knew existed. Moreover, because of the problems facing the government in proving what has transpired between co-conspirators, claims of secondhand or derivative entrapment will be hard to defend against. In reversing William Valencia’s conviction, the majority have made bad law. I therefore dissent from that reversal.
Because there was no error in the trial court’s charge on entrapment, it was unnecessary for the majority to reach out and decide the issue of inconsistent defenses. Because my colleagues have seen fit to do so, I have no recourse but to add my own brief comments.
I think the case will be rare in which a defendant denies committing the crime with which he is charged but asserts that if he did commit it he was entrapped into doing so. However, if a defendant is to be permitted to rely on these inconsistent defenses, he should make clear his intention to do so. He should not be permitted to claim only lack of involvement and then, after the proofs are closed, ask for a charge on entrapment. Where entrapment is claimed, the Government has the burden of proving the defendant’s predisposition to commit the crime. Proof of prior and subsequent criminal conduct is admissible, and often indispensable, for this purpose. United States v. Warren, 453 F.2d 738, 745 (2d Cir.), cert. denied, 406 U.S. 944, 92 S.Ct. 2040, 32 L.Ed.2d 331 (1972); United States v. Koska, 443 F.2d 1167, 1169 (2d Cir.) (per curiam), cert. denied, 404 U.S. 852, 92 S.Ct. 92, 30 L.Ed.2d 92 (1971). Defense counsel should not be allowed to maneuver the Government out of introducing whatever proof it has on the issue of defendant’s predisposition. United States v. Bishop, 367 F.2d 806, 809-10 (2d Cir. 1966).
I concur in affirming the judgment as to Olga Valencia but dissent in reversing the judgment as to William Valencia.
. Counsel for William Valencia did not argue in either opening or summation that William had been entrapped by Maria Palacio, the Government informer. His contention, a weak one at best, was that William was entrapped on May 17, 1979 by Government agent Guzman,' who deliberately handed William the money for the drugs that were being purchased from Mrs. Valencia.
. The informer testified as follows:
Q: Did you speak to William Valencia before there was a purchase of cocaine?
A: No. He didn’t get involved in anything. He didn’t say anything at all.
. See also section 2.13 of The American Law Institute’s Model Penal Code, which provides that entrapment may be perpetrated only by a “public law enforcement official or a person acting in cooperation with such an official