Before CLARK, Chief Judge, and MEDINA and HARLAN, Circuit Judges.
Defendant was charged in the indictment with two substantive offenses under 18 U.S.C. § 201; the first, the making of a promise to pay one Thomas Dugan, a government narcotics agent, $4,000 for the purpose of influencing him to violate his lawful duty to the United States, the second, the payment to Dugan of $2,500 in currency for the same purpose. The jury disagreed as to the first count, but found defendant guilty on the second. The appeal from the judgment of conviction raises a number of points, which we find it unnecessary to discuss, including some based upon undignified and improper remarks by the trial judge. An unjustified and prejudicial interruption of counsel's summation, however, the harmful effect of which was magnified by erroneous and confusing instructions on the subject of entrapment, in effect took from the jury the central issue contested at the trial; and there must be a new trial.
The factual background has to do with the defendant, Nani, a family of Piacentis, and the government agent Dugan. The events in issue occurred in the period between September 14, 1952, during the evening of which day Dugan had certain conversations with Frank Piacenti, and November 1, 1952, when Nani was taken into custody immediately after handing over $2,500 in cash to Dugan.
On March 7, 1952, Dugan had arrested Nani in Brooklyn, New York, on a narcotics charge pending against Nani in California. Prior to the sequence of events commencing in September, Peter Piacenti, one of five Piacenti brothers, had been arrested in California on a narcotics charge and, a few days prior to September 14, Dugan and certain other government agents had visited the house of Joseph Piacenti in Brooklyn, where they searched the premises and interrogated Sarah Rozzione, a sister of the Piacentis. Dugan testified that a newspaper clipping was found relating the facts about Nani's arrest; and there is evidence in the record to justify an inference that Nani and at least some of the Piacentis had dealings together, which may or may not have related to the traffic in narcotics.
The principal issue in the case was the familiar one of entrapment; and the substance of Nani's defense was that the idea of the alleged bribery was conceived by Dugan and that, with no predisposition whatever to commit such an offense, Nani was lured on and induced to hand over the money. Added to this was testimony by Nani that Dugan had held a gun against him on the occasion of their first meeting in the fall of 1952 and that the continuing fear thus induced was an additional reason for delivering the cash to Dugan. There was more than sufficient evidence in the testimony of several government agents, and in the undisputed attendant circumstances, to warrant the jury in rejecting Nani's claims as sheer fabrication. But the questions of fact raised by the conflicting versions of what took place as the various incidents developed should have been submitted to the jury in such fashion as to make it reasonably clear what the issues raised by the claim of entrapment were and to permit the jury to decide these issues without so circumscribing and limiting them as to distort and confuse the whole picture.
The scene opens with Dugan and Frank Piacenti talking together on the evening of Sunday, September 14, at The Show Boat bar in Brooklyn. Frank had telephoned to Dugan and suggested the meeting. Later in the evening Joseph Piacenti joined them. On the issue of what was said the versions of Dugan on the one hand and the Piacentis on the other are in irreconcilable conflict. Dugan testified that Nani's name was first brought into the conversation by Frank; that Frank, after asking what could be done for his brother Peter and after being informed that Peter had better plead guilty and cooperate with the government, had said "would money help" and added "not me, I haven't got any money but Nani has." This was followed up, according to Dugan, by Frank's suggestion that Dugan talk to Nani, to which Dugan replied, "I told him that I would speak to anyone if they wanted to speak to me."
The opposite version of the conversation, as testified by Frank Piacenti, was that Dugan was the one who first brought Nani into the conversation saying, "There is a man that is worth plenty of money." Moreover, if Frank is to be believed, Dugan said "I would give my right arm to get this man" (meaning Nani), and it was Dugan who suggested that Frank get in touch with Nani, and who said, "I think for the price of a Cadillac maybe we can straighten things out."
Nani's testimony fits into the pattern of that of Frank; and it is not in dispute that Frank was given Dugan's supervisor's telephone number and Nani called Dugan up, and this led to a series of meetings and conversations with respect to which the testimony is again hope-lessly conflicting.
Nani was pretty well discredited on cross-examination and his counsel faced a formidable task on summation. But he proceeded with some skill to approach the issue of who at the initial conference at The Show Boat bar, originated the idea of a meeting between Dugan and Nani. After dwelling on the fact, as testified by Nani and the two Piacenti brothers, Frank and Joseph, that they barged in on Nani at his home at four o'clock in the morning of the Sunday in September above referred to, and told Nani to call Dugan, the following occurred, in the course of summation by counsel for Nani:
"Frank says, and if Frank lied then he deliberately, with malice aforethought, went out to get Nani into trouble. If he didn't lie, then Dugan deliberately, with malice aforethought, went out to get Nani into trouble - either one of the two of them - and as far as I can see the facts, it makes no difference.
"The Court: Yes, there is, Mr. Singer. There is quite a difference. I say that there is no evidence here of any entrapment or any coercion by Frank and the Government is not responsible for any coercion by Frank, even if the Government employees did it or nobody did it. You follow my instructions and do not say it makes no difference that Frank tried to entrap him or not, because there is not one bit of evidence -
"Mr. Singer: May I respectfully except to your Honor's ruling, and I say as to having named someone, to draw the conclusion that I think can be ...