Appeal from judgment of conviction for conspiring to distribute and distributing heroin, entered in United States District Court for the Southern District of New York, after jury trial. Held: The trial judge erred in refusing to charge the jury on entrapment. Reversed and remanded for new trial.
Moore, Feinberg and Oakes, Circuit Judges.
The principal issue on this appeal by Richard Anglada from a conviction for violating the narcotics laws is whether the trial judge erred in refusing to submit the issue of entrapment to the jury. We hold that he did, and therefore reverse and remand for a new trial.
According to the Government, the evidence in this case showed a typical narcotics transaction. Detective Ralph Nieves testified that on September 3, 1974, he went with a confidential informant, Carlos Santana, to negotiate with one Edward Torres to buy some heroin. Price and place of delivery were agreed upon. When Torres did not appear the next day as planned, Nieves spoke to him on the telephone. Torres told Nieves that he had sent his cousin Richie (appellant Anglada) to meet them because Torres's connection was out of "stuff." On September 6, Nieves and Santana returned to the meeting place. Anglada appeared and was introduced to Nieves by Santana. Anglada assured Nieves that everything was all right, and that Nieves would be buying Torres's stuff, which could "take a five-hit."*fn1 Anglada left for a short while and then came back with George Shaw, who turned over a package of heroin to Nieves for $1,600; Nieves gave $1,000 to Anglada and $600 to Shaw. Anglada and Shaw left and Anglada turned over to Shaw the money Nieves had given him. Nieves and Santana drove away.*fn2
Anglada offered a different version of the transaction. He testified, on his own behalf, that early in September 1974, his fiancee was Maria Matos and Santana was her brother. On the day before the sale, Anglada had a conversation with Santana about getting drugs, which lasted 45 minutes to an hour:
Well, Junior [Santana] was talking to me for quite a while, you know, trying to convince me to do him a favor of getting some drugs for him, and he talked and kept on saying the same things, "Will you do me the favor, will you do me the favor, please. I will come out winning at the end." I told him, "I don't know, Junior." So then he kept on saying, "Please, Richie, I really would appreciate the favor, you know, you are my sister's boyfriend, I want you to help me," and I still told him I wasn't sure. He kept on insinuating with the same thing until he convinced me, and I said, I would let him know.
Anglada also testified that he knew that Santana was an addict and that he had given Santana money for clothes and shoes, which Santana had used for drugs. Anglada admitted that he had gone to Shaw and asked him to sell an ounce to his girl friend's brother. The next day, Anglada brought Shaw to the place where Santana was waiting with Nieves and the transaction occurred. Anglada denied that Torres had told him to deliver a message to Nieves and Santana on September 4 or that he had told Nieves that the heroin was Torres's stuff and that it could take a five-hit. Anglada also testified that he had never used or sold heroin and that he only sold the heroin because Santana was his girl friend's brother. Anglada denied keeping any money from the sale.*fn3
The district judge refused to submit the issue of entrapment to the jury, holding that:
The evidence of propensity is uncontradicted. Anglada, for whatever his reasons, readily assisted Santana's efforts to obtain heroin. He did not question the propriety of undertaking such action, and was fully prepared to complete the transaction on the occasion when he met in the car with Junior, Nieves and Shaw.
The evidence shows that Anglada grasped at the opportunity to deal in drugs, albeit in purported assistance of Junior, but nonetheless freely and voluntarily.
From this statement, it appears that the judge correctly understood the law on entrapment in this circuit but ...