Masciale v. United States

PETITIONER:Masciale
RESPONDENT:United States
LOCATION:Philadelphia Board of Public Education

DOCKET NO.: 84
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

Question

  • Oral Argument – January 16, 1958 (Part 2)
  • 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.

    Merrell E. Clark, Jr.:

    Shortly after Kowel’s employment by agent Marshall, he suggested to the defendant that the defendant enter the narcotics business.

    He pointed out to the defendant that there was a lot of money to be made in the narcotics business.

    The defendant, as he testified, Kowel himself did not testify, and the only knowledge we have as to this early stage of the story comes from the defendant.

    What was the defendant’s business?

    Merrell E. Clark, Jr.:

    The defendant, Your Honor, so far as the record showed, I believe the record doesn’t show what his business was, he actually had worked on the waterfront, had been a truck driver, he had two convictions for gambling and one conviction for conspiracy to attempt to commit a robbery.

    But there is no evidence in the record whatsoever, and I believe it’s not contended that he had ever dealt in narcotics previously.

    The defendant testified, as I say his testimony was uncontradicted, that he in the first instance rejected these suggestions.

    He told Kowel he wanted no part in the narcotics business, but Kowel was persistent, repeated his suggestion on two or three separate occasions and finally urged the defendant to meet a big buyer of narcotics from Texas, whom Kowel was going to introduce him to.

    Well, again, the defendant resisted the suggestion, but in the end he consented to meet the big buyer from Texas.

    The meeting took place in Brooklyn on January 14, and as the Court has no doubt surmised, the big buyer from Texas was agent Marshall, and Marshall asked the defendant if he could locate a source of narcotics.

    Marshall testified as to this meeting.

    His testimony in substance was that the defendant was willing, expressed willingness to try to locate a source of narcotics for him, boasted that in his gambling contacts he had known in the past at least of people who were in the narcotics business.

    But he told Marshall and Marshall so testified that he did not know right then any source of narcotics, but he undertook to try to find the source.

    Then his testimony, which of course, I think, we must assume the jury disbelieved that he was just stringing Marshall along, but I think for the purpose of this review we must assume that he was actually at that point willing to find a source of narcotics for the buyer from Texas.

    Felix Frankfurter:

    On cross-examination, was defendant asked as to his prior purchases or addiction to narcotics?

    Merrell E. Clark, Jr.:

    He was asked, Your Honor, I think on direct, I don’t recall.

    Felix Frankfurter:

    Well, on direct.

    Merrell E. Clark, Jr.:

    Yes sir and he was and he testified, he had never dealt with narcotics and never used narcotics.

    Felix Frankfurter:

    say it must be believed a minute ago that the jury rejected his testimony.

    The just had disbelieved that?

    Merrell E. Clark, Jr.:

    Oh no, not as to that, Your Honor.

    I say no.

    Felix Frankfurter:

    Just the statement that is why not?

    Merrell E. Clark, Jr.:

    Well, Your Honor, they might have disregarded it, but if they disregard that, they are left with the case where there is no evidence whatsoever as to whether the man ever had or had not dealt with narcotics.

    Felix Frankfurter:

    You say – do I interpret with that answer that, there being nothing else, there being no other, according to your statement of the fact, there being nothing in the record, assuming the defendant is out altogether, there being nothing in the record, from which they could have inferred, reasonably inferred, his prior relation to narcotics, they couldn’t from his denial, from this own denial have drawn an affirmative conclusion.

    Merrell E. Clark, Jr.:

    Yes Sir.

    Felix Frankfurter:

    That’s what your answer is.

    Merrell E. Clark, Jr.:

    That’s my position.

    Now, following this meeting of January 14, there ensued a period of approximately six weeks during which the defendant undertook to locate a source of narcotics for the buyer from Texas.

    Agent Marshall testified that he spoke to the defendant during that period perhaps ten times, two or three of which were in person, about among other things the defendant’s inability to locate a source of narcotics.

    Merrell E. Clark, Jr.:

    Finally however, the defendant did locate a source of narcotics and on March 1, he introduced Agent Marshall to the middleman Seifert.

    Seifert then introduced Marshall to the seller and the transaction took place.

    Felix Frankfurter:

    You said finally Mr. Clark, finally.

    Merrell E. Clark, Jr.:

    Yes Sir.

    Felix Frankfurter:

    What is the evidence of ready knowledge on his part?

    Merrell E. Clark, Jr.:

    The evidence on that score, Your Honor, is this, Seifert pleaded guilty and tuned state’s evidence and both he and the defendant testified that they had not known each other on January 14, that is at the time when the defendant was first approached by Marshall to find a source of narcotics.

    They testified they have known each other about a month prior to March 1 and they testified both that the first time the defendant mentioned Seifert the possibility of selling narcotics was March 1, the very day when the defendant introduced Seifert to Marshall.

    Felix Frankfurter:

    Would you mind spelling out in more particularity, the first approach by the government agent was in January what?

    Merrell E. Clark, Jr.:

    Well, Your Honor, the first approach by Kowel was, we contend, and it was conceded a government agent, was either late December or early January.

    Felix Frankfurter:

    At that time you say, is there any evidence that at that time the petitioner here had any kind of relations, never mind how close, had any kind of relations with the source of the supplier?

    Merrell E. Clark, Jr.:

    There is not evidence whatsoever that he had any relations with the source he ultimately located.

    Felix Frankfurter:

    Is that your precise answer?

    Merrell E. Clark, Jr.:

    Yes Sir, I mean to be and I anticipate another question.

    Felix Frankfurter:

    All right!

    What’s the answer to the next question?

    Merrell E. Clark, Jr.:

    The next question is, that the only evidence that he had any connection at all ever with any source of narcotics was Marshall’s testimony that at their first meeting on January 14, petitioner said in the past, in his gambling activities, he had known people in narcotics.

    He no longer knew those people, but he would try to find a source for Marshall.

    That’s the story.

    Felix Frankfurter:

    So now creep along from January 14 on so as to make out — the intent of my question is clear that namely is what generalization, what allowable basis, on the record, what allowable basis is there in the record that he had such relations that he wasn’t that innocent in this business?

    Merrell E. Clark, Jr.:

    Well, Sir, the allowable evidence —

    Felix Frankfurter:

    Meaning not that he was in the business but that —

    Merrell E. Clark, Jr.:

    Yes, that he had contacts.

    Felix Frankfurter:

    We know that.

    Merrell E. Clark, Jr.:

    Well, the allowable evidence sir, I think is no more than this, that he did meet Seifert around February 1.

    We don’t know exactly how.

    They were introduced by a mutual friend in a restaurant, but narcotics both of them said were not discussed.

    There is then a hiatus until March 1, when the defendant ran into Seifert, brought up the question of narcotics.

    Seifert indicated that he had a source and the defendant right then and there arranged a meeting between Marshall and Seifert.

    Felix Frankfurter:

    Was there anything on cross-examination upon which the jury could have inferred that his disavows, his discrediting disavows for cause, I mean, in this field?

    Merrell E. Clark, Jr.:

    Yes sir.

    Merrell E. Clark, Jr.:

    I don’t know of anything, Your Honor, and the government hasn’t suggested anything.

    Now, I mentioned that the defendant had other convictions, two for gambling and one for conspiracy to commit robbery.

    The Court below didn’t refer to those as in any way significant, apparently because they are so unrelated to the narcotics field as perhaps not to indicate any predisposition to sell narcotics.

    Now I will return once again to the Sorrells’ case, because it is virtually all we have to work with.

    It’s the landmark case as I indicated that —

    Felix Frankfurter:

    That is quite so from this Court, but you’ve got a good deal of material in the Second Circuit.

    Merrell E. Clark, Jr.:

    Oh there is a great volume of material below, yes sir.

    The cases are virtually numerous, it’s true.

    The Sorrells case is a landmark case, L. Chadmick was a valid defense.

    It set up rather general standards from which the law of courts were to work in determining whether the defense has been proved or not.

    I mentioned the controlling question is whether the person is otherwise innocent.

    You accept our standards for the purposes of your argument?

    Merrell E. Clark, Jr.:

    Yes sir, I do.

    Felix Frankfurter:

    I notice you say standard.

    I notice you say standard, because there is a decisive difference between the (Inaudible) dissenters might get at it.

    Merrell E. Clark, Jr.:

    Oh yes.

    Felix Frankfurter:

    How do you think that makes no difference?

    Merrell E. Clark, Jr.:

    I go along with the majority of opinion sir.

    Felix Frankfurter:

    All right.

    That isn’t an applied exception to the — exception to the substantive law?

    Isn’t that the base in the word, isn’t that the majority opinion?

    Merrell E. Clark, Jr.:

    The philosophy of it, yes sir.

    Felix Frankfurter:

    Yeah, that impliedly it isn’t a crime for somebody to do this if he is entrapped into doing it.

    Merrell E. Clark, Jr.:

    The legislature didn’t intend the law to apply.

    Felix Frankfurter:

    To apply.

    Merrell E. Clark, Jr.:

    Exactly.

    Felix Frankfurter:

    I thought it’s a defense, but he hasn’t committed any offense.

    Merrell E. Clark, Jr.:

    Well I am sorry if I used the word defense loosely, Your Honor.

    Felix Frankfurter:

    But I mean, I just want to know.

    Merrell E. Clark, Jr.:

    Yes, that’s right.

    Merrell E. Clark, Jr.:

    I subscribe to that completely.

    Now in deciding this controlling question of whether the person is otherwise innocent, this Court said, the predisposition and criminal design of the defendant are relevant and went to say that defendant could not complain of a searching inquiry into his own conduct and predisposition as bearing on the issue.

    Now sir, within that framework, we say here, that there is no substantial evidence of predisposition or criminal design, and that is, point one of the case.

    The only evidence here is evidence at the most, the willingness to be seduced by the government agent at the time of the meeting with Marshall.

    We submit if that is all that the court below rested its decision upon and we submit that it was erroneous in that regard.

    Felix Frankfurter:

    Let me ask you this Mr. Clark?

    Suppose the government were to concede in a case, not this case at the most, suppose the case cleanly on its facts fit that a government agent got to talking with a fellow in a bar room and said to him, how he did it to make substantial money, it is conceded that the victim as I should call him so, never thought about that before, had no prior knowledge, but suddenly saw opening up of the opportunity.

    Is that case clearly within Sorrells and not a case of entrapment would you say?

    Merrell E. Clark, Jr.:

    I would say that case is a clear case of entrapment, Your Honor, and there should be no convictions.

    Felix Frankfurter:

    I think that was clear, there couldn’t be any controversy about that (Inaudible)

    Merrell E. Clark, Jr.:

    Oh no, I think there will be controversy right here, but —

    Felix Frankfurter:

    But that is in this case.

    Well, you say it is this case.

    Merrell E. Clark, Jr.:

    Yes sir.

    Felix Frankfurter:

    Well take my case in which there is no question of when he knew Seifert and all of the rest, I want to get rid of everything in these questions I put to you, it’s disbelief by the jury of too selling on cross conceded but the fellow never thought of it before and in the course of (Inaudible) opened up, well that’s interesting.

    Merrell E. Clark, Jr.:

    And he immediately accepted.

    Felix Frankfurter:

    Well he doesn’t immediately accept it, he doesn’t, but it is, I want to think about this.

    Merrell E. Clark, Jr.:

    Well sir –

    Felix Frankfurter:

    I mean you can see, the government agent says this is a prospect for his purposes and they have another guy.

    Two months later he finally says, well, it’s something I am going for.

    But that would be a clear case if you think the government would say that is not Sorrells?

    Merrell E. Clark, Jr.:

    I am not sure what do you mean by not Sorrells, Your Honor, I think it’s a clear case of a ballot defense of entrapment.

    Felix Frankfurter:

    Yes, but I mean would it be arguable that that is not within the Sorrells decision?

    Merrell E. Clark, Jr.:

    I think it’s arguable, yes indeed.

    Felix Frankfurter:

    Well what would be the argument, I am curious to know that?

    Merrell E. Clark, Jr.:

    Well sir, as I interpret the majority below, I believe what they have said here is this defendant acquiesced so willingly in the suggestion that that is enough to rebut —

    Felix Frankfurter:

    I want you to see what the case I put.

    This is a brand new world that we have, he thinks about it and two weeks later or a month later he finally engages at the end of — do you think that’s arguably is not covered by Sorrells?

    I don’t know what would be covered by Sorrels then.

    Merrell E. Clark, Jr.:

    Well, Your Honor, I think it’s a clear case —

    Felix Frankfurter:

    But you think your case is this — the case —

    Merrell E. Clark, Jr.:

    This or a sub-clause 2, that they would fall on the same side of the line, yes sir.

    And my reason for it, it’s really kind of expressed by Judge Frank below than by me.

    He discusses the majority of decisions on Page 119 of the record, and then says in his words which to me are very persuasive.

    If my colleague’s distinction between easy and a difficult persuasion is adopted, how will it work?

    Just what is an easy seduction, what is its measure?

    After how long a period of official instigation is a defendant’s literal infarction of a statute not a crime?

    Will it be a crime if he yields to be detected as blandishment at the end of two or three months but not at the end of 8 or 10?

    In other words, I think any case which rests for its rebuttal of the defense on the defendant’s willingness, whether it’s instantaneous or in your case, two or three months, I think any case where that is the only evidence to rebut the defense, the defense is not rebutted, because I think it’s unworkable.

    I think there must be evidence of predisposition of some past conduct which will justify what this Court said in the Sorrells case is a questionable practice on the part of law and enforcement officials, only justified as a device or a strategem to catch somebody who they can’t otherwise catch, who is engaged in the criminal activity.

    Now, there is no evidence here, no evidence here of past sales of narcotics, no evidence of narcotic use, no evidence, in fact, on the contrary, clear proof that this defendant was unprepared on January 14 to sell narcotics, because assuming the greatest willingness, it took him six weeks to find even a middleman who could lead the agent to somebody with narcotics.

    Harold Burton:

    What about Kowel’s statement to Marshall (Inaudible) in past, wasn’t there some evidence (Inaudible)?

    Merrell E. Clark, Jr.:

    I don’t believe it is evidence of that, Your Honor.

    In the first place of course it was pure heresy as far as the truth of it was concerned.

    I think it’s admissible because it was part of the circumstances which got Marshall moving in the direction of the defendant.

    But so far as being evidence of past activity, I don’t believe it was evidence of that.

    Was (Inaudible) limited?

    Merrell E. Clark, Jr.:

    Was it limited at the trial?

    Yes.

    Merrell E. Clark, Jr.:

    No sir, it was not.

    Now, there is a second ground here Your Honors which applies to this case, I think more, specifically than the general matter I have been discussing, and that is, even if ready acquiescence is enough, it must at least be ready acquiescence expressed to the first persuader.

    In other words, it is not right for the court to say, oh, I have missed a defendant.

    When Marshall came to you, you said, fine, I will go and locate you a source.

    That’s not enough because absent — the defendant’s testimony, the record is silent on the persuasion practiced on him by the first government agent Kowel.

    So that even on this issue of willingness or this rebuttal to the defense of entrapment based on defendant’s willingness there is, we contend, a fatal hole in the government’s case.

    The defendant testified as to it at length, described his reluctance, as ultimately reluctant to yielding Kowel’s persuasion and of course the jury disbelieved it, but once again, if it is disbelieved, there is no evidence whatsoever of what Kowel said to the man or what his reaction was to it.

    Those are the two grounds, Your Honor, the first that willingness alone is not enough, there must be some evidence of predisposition, past conduct or preparedness, and even if this Court were to decide that ready acquiescence might be evidence, if you will, of predisposition, in this case there was not prima facie proof of willingness because the record of silent, as far as the government is concerned of the artifices practiced.

    Felix Frankfurter:

    What kind of charge did the court give?

    What kind of charge?

    Merrell E. Clark, Jr.:

    The court for its charge, Your Honor, really quoted from the first Sherman case in the Second Circuit.

    Merrell E. Clark, Jr.:

    In other words, it charged that once —

    Felix Frankfurter:

    Are you content with the charge?

    Merrell E. Clark, Jr.:

    Pardon me?

    Felix Frankfurter:

    Are you content with the charge?

    Merrell E. Clark, Jr.:

    Well, yes sir, we are content with the charge, yes, we are.

    Felix Frankfurter:

    The charge got submitted to proper standards of the jury.

    Merrell E. Clark, Jr.:

    Yes, they did.

    Felix Frankfurter:

    And that way you say the case shouldn’t have been allowed to go to the jury at all?

    Merrell E. Clark, Jr.:

    Yes sir.

    Felix Frankfurter:

    Where is the charge?

    In the Sherman case, is that the case that Judge Learned handled?

    Merrell E. Clark, Jr.:

    Yes sir.

    The charge is at Page —

    Felix Frankfurter:

    Which, there were two Sherman cases, I remember.

    Merrell E. Clark, Jr.:

    Yes sir, the second one is following me right here today; the first one was the one Learned Hand wrote the opinion.

    Felix Frankfurter:

    And it’s from the first one that the charge —

    Merrell E. Clark, Jr.:

    First one that the charge came, that’s correct.

    Felix Frankfurter:

    Where is that?

    Merrell E. Clark, Jr.:

    It’s at Page 97 of the printed transcript.

    If I may summarize briefly on it, I think it is a proper standard.

    The court said in substance that once inducement by the government has been shown, the government has the burden of showing that the defendant was ready and willing without persuasion to commit the offense shown and our contention is here that there is no evidence from which the jury could find that the defendant was ready and willing without persuasion to commit the offense.

    Earl Warren:

    Mr. Knapp.

    James W. Knapp:

    May it please Your Honor, it seems that the defense’s contention is really this, and I am not sure that he what hasn’t almost abandoned or one of them.

    I may be incorrect in that, but there were two government agents.

    He says I was trapped by both of them, at least that’s what I thought he was arguing until I heard him argue and he seems to admit that as to the approach by the government agent Marshall that the evidence shows willingness and readiness on the part of the petitioner to engage in the narcotics traffic.

    And I say to Your Honors that if that is the case and we will show (Inaudible) to contend of course that willingness is not enough, that we have to show more than willingness to make out that there was no entrapment in this issue.

    But he admits that the testimony, as far as Marshall was concerned, is that the defendant was ready and willing to engage in the narcotics traffic on January 14, 1954, when Marshall first approached him about it and I would like to read for Your Honor the testimony of Marshall in that respect.

    He said, Chappy, Jack and I then sat down in one of the booths —

    William J. Brennan, Jr.:

    Where are you reading from?

    James W. Knapp:

    From record, Page 6, Your Honor.

    William J. Brennan, Jr.:

    Thank you.

    James W. Knapp:

    And almost immediately we started to discuss the narcotics traffic.

    I told Chappy that I was interested in large quantities of drugs, heroin to be exact, and not as a street pusher.

    And if I may quote, but that I have transacted my business, posed as a seller out of New York City, and I was only interested in good and large quantities.

    And he should tell me right away if he is not the person to see, then we will finish this conversation pleasantly right then and there.

    Now, that’s what his initial approach to the defendant was, but the defendant didn’t tell him he was not willing.

    He questioned the man as to his knowledge of the narcotics traffic.

    The entire topic was to find out my extent of my — of the narcotics traffic and then Mr. Masciale told me and this is record Page 7, Your Honor that primarily he was a gambler and that he was not a narcotics trafficker as such, that his business was mostly gambling, but that he knew the right people in the narcotics traffic.

    He further said that up to a week ago or a week prior question that would have been a week prior to January 14th, prior to January 14th he knew or he had a very good source which could supply me with X amount of quality of heroine, but that somehow he had a falling out with these people.

    He said further that he knew someone whom he considered high up in the narcotics traffic and to whom he could introduce me in that I was able to get and I can quote this, “88% pure heroine” from this source.

    Felix Frankfurter:

    Now suppose there was an introduction.

    Suppose if this is clear, but after that there was an introduction, but that he had nothing to do with it, an exposit would be admitted by the government that he need to either profited by or dealt with it or anything else, but that having talked with Marshall he said that, well, I am not n this business, but I know some people who are.

    Would he become a aider and abettor or a coconspirator, do you think?

    James W. Knapp:

    Well, if he produced the man, of course he would, because he would, because he was —

    Felix Frankfurter:

    Oh, he did produce the man.

    He introduces, I know this fellow.

    You want to know somebody in the narcotics business, Mr. Jones is in the narcotics business.

    That would make him a coconspirator?

    James W. Knapp:

    I do not think that what go far enough to making an aider and abettor.

    Felix Frankfurter:

    Will it make him a coconspirator?

    James W. Knapp:

    I think it is a close question, Your Honor.

    It might very well make it a coconspirator.

    Felix Frankfurter:

    But it is fact that — assume this.

    Assume that he had no prior dealing that government had to concede that this fellow had no prior narcotics connections or record, but in the world in which he moved he also knew people where in the narcotic business and he sat down with a government agent who I notice almost immediately started to discuss.

    I don’t what that means.

    There is the fact that a government agent sits down with somebody who is into the gambling world and the gambler finds his talk interesting and listens to him, does that show readiness to commit crime, willingness, ready and willing?

    What is ready and willing mean?

    He does not say, shut up, I am not interesting in narcotics and I do not want listen to it.

    I know the Supreme Court cases and this may get me into trouble.

    James W. Knapp:

    I do not think it is merely sitting down and discussing it, but when you consider all other facts here did not merely discuss it.

    James W. Knapp:

    He went further.

    He went further here.

    He said that Masciale told me he is primarily a gambler that he is not a narcotics trafficker as such, but that he knew the right people, that he had a very good source which could supply me with an excellent quality of heroine, but somehow he had had a falling out with him, and that he knew someone he considered high in the narcotics traffic to whom he could introduce me, and that I was able to get 88% pure heroin.

    It is much further than just sitting down and having an accidental conversation in which he mentions the man’s name where he might able to get it.

    Now that is a different situation.

    He is going further and he has taken the ball after it has been given to him and he is running with it.

    He says he can talk.

    Felix Frankfurter:

    The question that I ask you is because I think to me it makes a lot of difference whether you are to imply into the statute a limitation by Congress that it is not making it a crime for a man who does not shut up of a government agent who talks about his businesses.

    Says, I do not want to hear about it.

    I am not interested, but listens to what might be very interesting tale and gets interested although there is no antecedent proof that that man was going to embark upon that kind of business except by the enticement of an agent or whether you take the view of Justice Roberts’ concurring opinion that this is shabby business for the government to do.

    It makes all the difference in the world I think to me whether this is an implied exception in the statute or that this is the kind of a thing that should not be encouraged by having the government go in the business of having people commit crimes who vouch for their activity when they are committing it.

    James W. Knapp:

    Now as I understand at this Sorrells’ case resulted in just that conflict among his bench.

    Felix Frankfurter:

    That’s right.

    James W. Knapp:

    And the majority of the Court, there was one judge who said it was not entrapment at all and the majority opinion said there is not any offence.

    This isn’t where you plea in bar say I did it with —

    Felix Frankfurter:

    You are quite right about that.

    James W. Knapp:

    He says this is no offense.

    Now the reason it is not an offense is that the government will not be presumed to intent — the right of the Congress to intent the conviction of people who are enticed and induced into the commission of the government’s agent.

    It is the government’s duty to prevent crime and not to incite it, the real freedom of man.

    Felix Frankfurter:

    Now what I want to know is whether this being a criminal case so that the reliance of the usual arguments for a hearing to a case from my point of view does not apply applied to this.

    What I want to know is rather the government rests on the assumptions that Sorrells case — the problem of entrapment is concluded by the theory on which the Sorrells case was decided.

    James W. Knapp:

    Your Honor, please, we, of course, agree with the theory of the Sorrells case, but as I believe Mr. Judge Hand pointed out in the (Inaudible) case afterwards that it did not solve everything.

    It was a general laying down the principles of law which the District Courts and Circuit Courts had to work in and they had to find the means of carrying out this mandate of this Court.

    Perhaps, that is where we have no trouble.

    Felix Frankfurter:

    But I am suggesting something else Mr. Knapp.

    I am suggesting that it may make a difference whether you would take the ground on which the court, you rightly say the court, I prefer to say a court instead of majority, the majority makes the court, what you take the ground of the court in recognizing entrapment and saving a defendant or of the court or that you take the view of the Robert’s view, to me it makes a difference.

    James W. Knapp:

    I understand Your Honor and I think I understand the reason, because if the position of the majority and of the court has a final say is that it is no offense, it is a not guilty plea and it is showing in which you are entitled to finding not guilty.

    He did not commit it.

    And in that respect, the Sorrells case, those it seems to me the courts did not bother whether he is entrapped or not is not simply what was done, what was asked, but what was his mental process at the time.

    Was he a person who was otherwise innocent who would not have ever committed this or ever done this thing if it had not been brought out and suggested and induced and incited by the government?

    James W. Knapp:

    Now when we get to that question of what was his mental process at the time the only way we can ever tell is by the evidence and by what the factual situation is.

    Here in this case how do we tell his mental process, by what he said, his willingness to go along with it.

    Earl Warren:

    We’ll recess now Mr. –

    James W. Knapp:

    Excuse me –