Following a Petition for Rehearing with Suggestion for Rehearing in Banc and an initial panel vote of two to one to deny the petition, the panel majority votes to and hereby Orders that part III D of its initial opinion, 645 F.2d 1158, be amended to read as follows:
D. William's defense of entrapment.
The most troubling question in the case relates to William Valencia's entrapment defense and the supplementary charge, note 5 supra. It was the judge's thought, and is the Government's position on appeal, that because a defendant cannot be entrapped unless he has had actual contact with a government agent who directly induced him to commit the offense, William was not entitled to have the defense of entrapment through indirect inducement go to the jury.*fn8 We cannot agree with this view. If a person is brought into a criminal scheme after being informed indirectly of conduct or statements by a government agent which could amount to inducement, then that person should be able to avail himself of the defense of entrapment just as may the person who receives the inducement directly.
Our reading of United States v. Swiderski, 539 F.2d 854, 858-59 (2d Cir. 1976), is to this effect.*fn9 The Government argued in that case that since codefendant De Los Santos was not exposed to constant conversations with the government informant, her willpower could not have been broken down. Id. at 858. Thus the Government asserted that there never was any inducement of De Los Santos, who had been brought into the illegal activity by her fiance, Swiderski, who in turn had been in contact with the government agent. Id. at 859. This court rejected that argument and held that De Los Santos was entitled to an entrapment instruction, noting that, since De Los Santos was Swiderski's "fiance and apparently his constant companion," there was a "fair inference that he told her of the importuning by (the informant), if that, in fact, happened." Id. In the present case, there was more than simply the close marital relationship between William and Olga. Olga's testimony revealed that after the inducement to her and prior to the sale underlying the May 17, 1979 sale, Palacio, the allegedly inducing government informant, had made frequent visits to William's and Olga's apartment, which William was unable to leave because of his injuries, during which time Palacio was continually "pushing" and "coercing" Olga to sell cocaine. It also appeared, from Palacio's testimony, that William was aware that a sale was in progress the night before it took place. From all these circumstances the inference might readily be drawn that the inducement had been communicated to William.*fn10 In general, we hold that a vicarious entrapment defense can be presented to a jury only where the defendant first introduces admissible evidence that the agent's inducement was directly communicated to him by another. In this case, however, we remand for a determination by the trial judge whether there was sufficient evidence of direct communication between Olga and William to permit the question of inducement of William to go to the jury. If there was not, the conviction should be affirmed. If there was, William should be given a new trial.
In Swiderski, the alleged inducement of De Los Santos took place not only through an invitation by the informant to have Swiderski attend a "party," an invitation which was conveyed to De Los Santos by Swiderski, but also through the "fear" instilled in both of them by the informant when he sought to sell them cocaine. The Government seeks to distinguish Swiderski by the fact that De Los Santos was physically present with the informant when some of the purported inducement occurred. But the court explicitly said: "(T)he inducement ... was the luring of appellants to a room for a party and the subsequent instilling of fear by the government informer." Id. at 859 (emphasis added). Accordingly, the distinction is unavailing. The Swiderski court clearly contemplated that the invitation could be considered part of the inducement of De Los Santos even though it was communicated to her by her fiance and not directly by a government agent. Indeed, the argument in favor of William here is stronger than it was for De Los Santos since here the indirect inducement allegedly caused William to engage in actual criminal activity, as opposed to merely causing a defendant to appear at a scene where criminal activity was to take place.*fn11
It is apparent that William could invoke the entrapment defense based on communications from Olga despite the fact that the jury found that Olga had not been entrapped. If there is sufficient evidence of inducement by a government agent to permit the case to go to the jury, then the question of entrapment turns on the individual propensity of each defendant who may have been induced. Thus, the jury might well have convicted Olga because it found that she had the propensity to commit the offense. That does not mean, however, that the jury would necessarily find that William also had such a propensity.
The Government has another string in its bow, however, in that it argues that the defense of entrapment should not be available to a defendant who completely denies participation in the criminal acts alleged. The court in Swiderski reserved this question. 539 F.2d at 859 & n.4. As Swiderski pointed out, two cases in this circuit, United States v. Pagano, 207 F.2d 884, 885 (2d Cir. 1953) (per curiam), and United States v. Di Donna, 276 F.2d 956 (2d Cir. 1960) (per curiam), have held that it was not error for a trial judge to refuse to charge entrapment where the defendant denied knowledge of participation in any criminal activity. In United States v. Bishop, 367 F.2d 806, 809 (2d Cir. 1966), however, this court said that there was no need to decide whether a defendant's denial of "the acts alleged to constitute a crime foreclosed the defense of entrapment." Bishop took note of Pagano and Di Donna, and implicitly called those cases into question. Id. at 809 n.4. Subsequent cases in this circuit have treated this as an open question. See United States v. Alford, 373 F.2d 508, 509 (2d Cir.), cert. denied, 387 U.S. 937, 87 S. Ct. 2062, 18 L. Ed. 2d 1003 (1967); United States v. Braver, supra, 450 F.2d (799) at 802 n.7 (2d Cir. 1971); United States v. Licursi, 525 F.2d 1164, 1169 n.5 (2d Cir. 1975); United States v. Swiderski, supra, 539 F.2d at 859 & n.4; United States v. Brown, 544 F.2d 1155, 1159 (2d Cir. 1976). But see id. at 1162 (Bartels, J., concurring).
The other circuits are both literally and figuratively spread all over the map on this question. Indeed, several circuits have either modified or completely changed their positions during the last decade. The First, Third, Seventh, and Tenth Circuits have never permitted a defendant to raise inconsistent defenses,*fn12 while the District of Columbia and Fourth Circuits have consistently permitted such defenses.*fn13 The Ninth Circuit used to prohibit inconsistent defenses, but now permits them.*fn14 The Sixth Circuit has gone in the opposite direction, since it used to allow them, but now apparently prohibits them.*fn15 The Fifth Circuit generally does not permit inconsistent defenses, but has created several exceptions and has begun to question the propriety of the general ban.*fn16 Finally, the Eighth Circuit like the Second leaves the question undecided despite earlier cases indicating inconsistent defenses were impermissible.*fn17
In this situation, where the circuits appear to be in conflict, our own cases are not altogether consistent, and the Supreme Court cases do not address the question,*fn18 we hold that William Valencia, having put the Government on notice in counsel's opening statement of the assertion of the dual defenses of entrapment and non-involvement, is entitled to raise the defense of entrapment since he did not take the stand to deny personally his participation in the transaction and did not affirmatively introduce any other evidence that he was not involved. Although William's counsel in summation articulated his client's position that William was in no way involved in the sale of cocaine and although counsel's examination of Olga was only to elicit the response from her that William never had anything at all to do with cocaine, that is insufficient to withdraw the entrapment defense from William.
In reaching this conclusion, we need go no further than the Fifth Circuit in making the entrapment defense available to a defendant who, having duly notified the Government of the assertions of dual defenses, chooses not to testify and does not introduce any evidence inconsistent with the defense of entrapment.*fn19 See United States v. Groessel, 440 F.2d 602, 605 (5th Cir.), cert. denied, 403 U.S. 933, 91 S. Ct. 2263, 29 L. Ed. 2d 713 (1971). See also United States v. Demma, 523 F.2d 981, 984 (9th Cir. 1975) (en banc). We therefore need not decide whether we would follow the District of Columbia, Fourth, and Ninth Circuits in making the entrapment defense available to a defendant who actually testifies that he did not participate in the alleged criminal activity or uses alibi witnesses to make the same point.
Judgment affirmed as to Olga Valencia; reversed and remanded as to William Valencia.