Opinion · Court of Appeals for the D.C. Circuit

United States v. Errol F. Neuman, United States of America v. Michael Neuman

436 F.2d 285

Type
Opinion
Court
Court of Appeals for the D.C. Circuit
Jurisdiction
Federal
Date
1971-03-22
Topic
general

PER CURIAM: Appellants were convicted of acquiring and transferring marijuana in violation of 26 U.S.C. §§ 4744(a) and 4742(a) (1964). The evidence against them is ironclad. They sold hashish, without the required order forms, to two Government undercover agents who arrested them on the spot. On appeal they raise a single issue: whether the defense of entrapment was properly raised over the objection of appellants and evidence of predisposition to commit the crime charged properly admitted against them. The trial court ruled that appellants had in effect raised the issue of entrapment by the questions asked by their counsel of Government witnesses and the Government informer produced by appellants as an adverse witness.

Citator

UpLaw has not yet analyzed United States v. Errol F. Neuman, United States of America v. Michael Neuman. The absence of a flag is not a finding that it is good law.

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pending
Cited by
7 opinions
UNITED STATES v. NEUMAN,436 F.2d 285(D.C. Cir. 1970)
UNITED STATES of America v. Errol F. NEUMAN, Appellant. UNITED STATES of
America v. Michael NEUMAN, Appellant.
Nos. 23694, 23695.
United States Court of Appeals, District of Columbia Circuit.
Argued September 18, 1970.
Decided October 29, 1970.
Petition for Rehearing Denied November 24, 1970.
Certiorari Denied March 22, 1971.
See 91 S.Ct. 1190.
Page 286
Mr. David Povich, Washington, D.C., for appellants.

Mr. John O'B. Clarke, Jr., Asst. U.S. Atty., with whom Messrs. Thomas A. Flannery, U.S. Atty., and John A. Terry, Asst. U.S. Atty., were on the brief, for appellee. Mr. James R. Phelps, Asst. U.S. Atty., also entered an appearance for appellee.
Before WRIGHT, McGOWAN and ROBINSON, Circuit Judges.
PER CURIAM:
Appellants were convicted of acquiring and transferring marijuana in violation of 26 U.S.C. § 4744(a) and 4742(a) (1964). The evidence against them is ironclad. They sold hashish, without the required order forms, to two Government undercover agents who arrested them on the spot. On appeal they raise a single issue: whether the defense of entrapment was properly raised over the objection of appellants and evidence of predisposition to commit the crime charged properly admitted against them. The trial court ruled that appellants had in effect raised the issue of entrapment by the questions asked by their counsel of Government witnesses and the Government informer produced by appellants as an adverse witness.

Since a plea of entrapment admits commission of the act charged,1we question whether the defense of entrapment can ever be raised exceptin termsby the accused. We have been cited to no case and have found none which holds that the defense can be held to have been raised by inference, implication or estoppel based on ambiguous actions of defense counsel.2Obviously, however, it would be unfair if defense counsel could both put the issue of entrapment before the jury through his questioning and still keep the Government from presenting evidence of predisposition by declining formally to pleadPage 287entrapment as a defense and by declining to request an entrapment instruction at the conclusion of the trial. Consequently, when defense counsel asks questions thought to be suggestive of entrapment, he should be instructed to plead the defense or abandon the line of questioning.

The error in raising the defense and admitting the evidence of predisposition over the objection of the accused in the circumstances of this case is harmless error, however, beyond any doubt.CompareLopez v. United States,373 U.S. 427,434-437,83 S.Ct. 1381,10 L.Ed.2d 462(1963).

Affirmed.
  1. Some circuits refuse to allow the defense of noncommission of the act charged where the defense of entrapment is also made.SeeHarris v. United States, 5 Cir.,400 F.2d 264(1968). In this circuit we permit the alternative defenses. Hansford v. United States, 112 U.S.App. D.C. 359, 361,303 F.2d 219,221(1962) (en banc). ↩
  2. The questions asked by defense counsel were primarily classic credibility questions relating to inducements offered the informer for his cooperation. ↩