Masciale v. United States

RESPONDENT: United States
LOCATION: Philadelphia Board of Public Education

DECIDED BY: Warren Court (1957-1958)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 356 US 386 (1958)
ARGUED: Jan 16, 1958
DECIDED: May 19, 1958

Facts of the case


Media for Masciale v. United States

Audio Transcription for Oral Argument - January 16, 1958 (Part 2) in Masciale v. United States

Audio Transcription for Oral Argument - January 16, 1958 (Part 1) in Masciale v. United States

Earl Warren:

Number 84, Frank Masciale, petitioner, versus United States of America.

Mr. Clark?

Merrell E. Clark, Jr.:

May it please the Court.

This case comes here on writ of certiorari to the Court of Appeals for the Second Circuit.

The Second Circuit Court had affirmed by a divided court the petitioner's conviction of violation of the narcotics laws.

The particular statutes involved are listed on Page 2 of petitioner's brief and are printed in the appendix, but they do not raise the question which is really at issue here.

Petitioner was tried by a jury in the District Court for the Eastern District of New York, and was convicted of unlawfully selling and conspiring to sell an ounce and a quarter of heroin hydrochloride.

He received a three-year sentence.

Upon appeal, a counsel was assigned by the Court of Appeals for the Second Circuit through the New York Legal Aid Society.

Now, the fact is that petitioner did participate in that narcotic sale.

That participation is freely conceded here and was freely conceded on the trial.

The defense was that of entrapment.

In other words, the particular sale of narcotics in which petitioner participated was induced by a Federal agent.

The question presented here is whether the Trial Court erred in submitting the case to the jury, when the undisputed facts showed, first, the inducement by the document; second, the petitioner had not previously dealt in narcotics, or in fact that he was not a user of narcotics; third, that the urging of the government agents had continued for a period of over two months before the petitioner actually committed the illegal act and fourth, whether the government failed to produce any evidence whatsoever of the inducements first offered to the petitioner and his response thereto.

Now, before turning to the facts I would just like mention one decision of this Court as a sort of background to the facts that is the case of Sorrells versus United States, 287 U.S. 435 (1932).

I mention it, because it is to my knowledge the only occasion on which this Court has spoken on the defense of entrapment, and most of what I will say refers to that case as the touchstone.

In that case this Court first held that entrapment was a valid defense, and the Court said the controlling question, the controlling question is, whether the defendant is a person, otherwise innocent, whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its officials?

Now, the facts are these.

The narcotic sale we are concerned with took place in Brooklyn on March 2, 1954.

The purchaser is a man name Marshall, who was a government agent.

The actual seller was never apprehended.

He dealt with Marshall on the telephone, he was never identified, and the government never succeeded in catching him.

Marshall dealt through a middleman, a man named Seifert.

I am sorry to bother you with all this dramatic personae, but it is important, a man named Seifert who introduced agent Marshall to the seller over the telephone and who led agent Marshall to the empty lot, where the ounce and a quarter of heroin had been lodged.

Now, petitioner's role in the transaction was to introduce Marshall, the government agent, to Seifert, the middleman, and that is virtually all he had to do for the transaction.

The story begins chronologically in December 1953, approximately three months before the sale took place when one Kowel appeared in agent Marshall's office and applied for employment as someone familiar with the narcotics business.

Agent Marshall testified that he hired Kowel as a special employee, paid him on an informal basis.

Kowel would come in and say he had spent five or ten dollars in a bar the night before and Marshall would reimburse him.

But there has been no contention as for the purpose of this case, Kowel was anything but an agent of the government.

Kowel was also, and had been for some years, a friend of the defendant.