Lumbard, Chief Judge, and Friendly and Kaufman, Circuit Judges.
This appeal raises troublesome issues in an area of the criminal law under constant review -- the entrapment defense. John Bishop was found by a jury to be guilty of 6 counts of possession, sale and delivery of counterfeit money, and 1 count of conspiracy.*fn1 He received a sentence of 5 years on each of the 7 counts, to run concurrently. We affirm his conviction.
During the winter of 1964-65, a great many counterfeit bills appeared in the downtown business area of Brooklyn. One James Jackson was arrested by Secret Service agents on January 9, 1965 when he passed a counterfeit bill in Mays Department Store. Concerned over two felony charges already pending against him, Jackson readily agreed to cooperate with the agents in their efforts to apprehend "Cadillac Bobby," a reputed trafficker in counterfeit money, and other associates.
During the next 3 weeks Jackson unsuccessfully tried to put the agents in contact with "Cadillac Bobby," and toward the end of the month it was decided to abandon these efforts and to concentrate instead on the other individuals who were involved in the counterfeiting. On January 29, Jackson arranged a meeting at the Club Coronet between a friend of his, Ernest Duncan, and undercover agent Jesse Spratley, who was introduced to Duncan only as "Bobby." Duncan, who was unaware that Jackson had become an informer, took Spratley and Jackson to the Random Billiard Hall where they met Tyrone Thompson. Agent Spratley, still posing as "Bobby," told Thompson that he wished to buy $1000 of counterfeit money. The 4 men left the billiard parlor and proceeded by taxi to 932 Myrtle Avenue to meet Thompson's "connection." While the others remained outside, Thompson led Spratley to the third floor of the building and instructed him to remain there while he went up the stairs. At this point in the sequence of events there is some confusion as to what exactly occurred, for 10 or 15 minutes later Thompson called to Spratley from the floor below. The prosecutor argued in his summation that Thompson had gone over the roof from 932 Myrtle Avenue to No. 928, the building where Bishop lived, arranged a meeting, left No. 928 and walked back to No. 932 via the street. When he returned, Thompson told Spratley that his "connection" was not at home, and then pointing to a black Buick bearing New York license plate KD 6570, stated that it belonged to his "connection." The car was registered in the name of John Bishop, residing at 928 Myrtle Avenue.
At 9:00 P.M. that same day, Spratley and Jackson returned to the billiard hall to meet Thompson, and at his direction the 3 men went by taxi to the Elks Bar. Close to this location, Thompson left the taxi, informing the other two to remain inside it because he would soon return. Several minutes later he emerged from the bar with Bishop, and remained in sight for a few moments. Soon they reentered the bar only to reappear once again at the door. At that time Jackson saw something pass from Bishop to Thompson; Spratley, however, saw nothing. Leaving the Elks Bar, Thompson returned to the parked cab and sold Spratley 96 counterfeit $10 bills for $250. Spratley asked if he could buy another $5000 in the future, and Thompson replied that the matter would have to be discussed with his contact. Thompson then left Jackson and Spratley and drove off with Bishop in the latter's black Buick.
The second "buy" was arranged on February 5, 1965. This time the government established a "stake-out" with 2 surveillance units at the Elks Bar. Spratley, along with special agent Joseph Gasquez, picked up informer Jackson and proceeded to the billiard hall where they met Thompson. The 4 men then drove along Washington Street and parked around the corner from the Elks Bar. Thompson left the car and walked in the direction of the bar. After a few preliminaries he returned and told Spratley to accompany him so that he could talk to "his man." Near the entrance of the Elks Bar, the 2 men met Bishop, who handed Spratley a stack of 51 counterfeit $10 bills. The agent returned to the car "to inspect" the money, at which point Gasquez signaled to the other agents who moved in and arrested Thompson and Bishop.
With this distilled version of the evidence particularly relevant to the points raised on this appeal, we approach our discussion of the law.
The defense of entrapment was given extensive review and consideration in Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413 (1932),*fn2 where the Supreme Court stated:
The defense * * * is not simply that the particular act was committed at the instance of government officials. * * * The issues raised and the evidence adduced must be pertinent to the controlling question whether the defendant is a person otherwise innocent whom the Government is seeking to punish for an alleged offense which is the product of its own officials. 287 U.S. at 451, 53 S. Ct. at 216.
The defense of entrapment presents, as Judge Learned Hand indicated, two distinct issues: "(1) did the 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." United States v. Sherman, 200 F.2d 880, 882 (2d Cir.1952). On the first of these issues -- "inducement" -- the accused bears the burden, ibid.,*fn3 the government, however, must prove the ...