Forman, Freedman and Seitz, Circuit Judges.
Defendant appeals from a conviction on two counts, one charging the unlawful sale and the other the unlawful possession of counterfeit currency.
Able counsel appointed to represent him urges a number of contentions on his behalf: (1) the defense of entrapment should have prevailed as a matter of law because the government failed to prove defendant's predisposition to commit the offense; (2) the trial judge erred in charging the jury that a presumption of truthfulness should be accorded the testimony of witnesses; (3) the charge erred in describing the possession necessary to constitute the crime; (4) the government's evidence showed that defendant was a procuring agent as a matter of law; and (5) the charge erred in limiting the operation of any unfavorable inferences to be drawn from the failure to produce witnesses.
The record begins with an informer's introduction of a federal narcotics agent named Peterson to the defendant on July 13, 1962 at a music shop where the informer worked. Peterson was not affiliated with the Secret Service, which normally handles counterfeit cases, but was employed in the New York City office of the Federal Bureau of Narcotics. He came to Newark, New Jersey on special assignment at the direction of his district supervisor, on the morning of July 13th. There he met with Secret Service agents and the informer. Later in the day he went with the informer to the music shop where the defendant was awaiting them. On direct examination Peterson testified that the informer introduced him "as a person who wanted to buy counterfeit notes", although he later on cross-examination omitted this in referring to the introduction. According to Peterson, the informer thereupon went to the rear of the store and immediately afterward, without Peterson saying anything further, the defendant "asked me if I was interested in buying some papers of $20 denomination which was a very good quality. I told him I was, and I asked him if the paper would be the same as that I had previously seen before. He said it would be." There was some preliminary discussion regarding price and it then became clear that the defendant would have to obtain the counterfeit currency from someone else. The informer drove them to a bar to obtain $500 in counterfeit currency from the supplier. Defendant entered the bar alone and then returned to tell Peterson that the supplier, who was later identified as one Brianza, would not sell less than a full package of $1,000 in counterfeit currency. Although defendant agreed to meet with Peterson later that evening, he did not appear, but five days later, under circumstances which Peterson could not explain, defendant returned to the music store and resumed negotiations with Peterson in the presence of the informer. An appointment was arranged for Peterson to purchase a full $1,000 package from defendant at a restaurant that evening. This time defendant appeared for the appointment, but after going alone to meet his supplier returned and told Peterson that the supplier had already sold the package, but that he could secure another later in the evening. Ultimately that evening defendant delivered 49 counterfeit $20 bills.*fn1 Both at the original meeting and at the meeting at which the counterfeit currency was passed, defendant had requested from Peterson an additional $10 "for his troubles".
It is evident, of course, that prior to the July 13th meeting there must have been discussion in the Federal Building at Newark between Peterson and his new supervisors and other agents who had worked on the case, as well as with the informer. The government, however, presented only two witnesses in addition to Peterson. One, Agent Marass, testified concerning the counterfeit nature of the bills, and said that he knew nothing of what Peterson had said to the informer, although he had instructed Peterson on the part he was to play. He also revealed that the informer had been in custody for counterfeiting activities and had agreed to "cooperate" with the government in undercover work. The other government witness, Agent Powis, testified to the surveillance of the defendant on the evening the currency was passed, in confirmation of Peterson's testimony. He acknowledged that a second agent was in charge of the case and that certain other agents had taken part in it. These agents, whose identities were revealed in the testimony, were available to defendant, but the informer was unavailable at the time of trial.
In an often quoted passage in United States v. Sherman, 200 F.2d 880, 882-883 (2 Cir. 1952), Judge Learned Hand isolated the two elements in entrapment, which for brevity have been labeled "inducement" and "predisposition": "(1) Did the agent induce the accused to commit the offence charged in the indictment". This need not be trickery or fraud, but "includes soliciting, proposing, initiating, broaching or suggesting the commission of the offence charged". "(2) If so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first question the accused has the burden; on the second the prosecution has it."*fn2
Because the government must prove a defendant's guilt beyond a reasonable doubt, this formulation which imposes upon a defendant a burden of proof as to "inducement," has tended to create confusion regarding the nature of the burden of proof and even as to the nature of the defense of entrapment itself. See Notaro v. United States, 363 F.2d 169, 174 (9 Cir. 1966); Sagansky v. United States, 358 F.2d 195, 202-203 (1 Cir. 1966). In the present case the element of "inducement" was shown in the government's testimony and the trial judge therefore in effect treated it as established as a matter of law and did not submit this element to the jury for its determination. Neither the defendant nor the government makes any complaint at this. Defendant urges, however, that under the evidence the trial judge should have found that entrapment was established as a matter of law because there was no evidence to go to the jury on "predisposition."
The propriety of inquiring into the "predisposition" of the defendant is authoritatively answered for us by Sorrells v. United States, 287 U.S. 435, 451-452, 53 S. Ct. 210, 216, 77 L. Ed. 413 (1932). Chief Justice Hughes, speaking for the majority, there said: "* * * If the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense." Sorrells has been subjected to severe and weighty criticism because of the obvious difficulties it imposes upon a defendant in allowing the government to offer evidence of his past conduct and current inclinations.*fn3 The Supreme Court, however, has consistently refused to overrule Sorrells and it remains our governing rule.*fn4 Indeed, the court very recently reiterated on the authority of Sorrells that "it is settled that when the defense of entrapment is raised, evidence of prior conduct tending to show the defendant's predisposition to commit the offense charged is admissible."*fn5
We have held that conduct such as the defendant's immediate and spontaneous response to Agent Peterson is adequate evidence of predisposition.*fn6 It was evidence here of the defendant's eagerness to engage in the criminal activity as soon as the occasion when he could do so was made known to him. The jury, therefore, could well have found that Agent Peterson opened the door to the defendant and that defendant's subsequent conduct did not spring from any influence of the government but was the product of his own desire. In the very recent case of Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966), the defendant admitted that he had sold marihuana to an undercover agent who had telephoned him and said that he had been told by a mutual friend that the defendant might be able to supply the narcotic. To this the defendant responded that he could "take care of" the agent, and directed him to come to his home to consummate the sale. In the course of its decision that the use of a government undercover agent did not violate the Fourth Amendment, the Supreme Court indicated that there was no basis for a claim of entrapment.
We conclude, therefore, that there was sufficient evidence of predisposition to warrant submission of the issue to the jury and that there was no ground upon which the trial judge could have declared the defense of entrapment established as a matter of law.
What is striking, however, is the absence from the record of any explanation of how the meeting of July 13th was arranged and what may have passed between the informer and the defendant before the meeting. In this area, in which there is such a lack of testimony, one cannot avoid some wonder whether there was conduct which would have shed clearer light on both inducement and predisposition. As the case now stands, however, there is on the record no evidence of prior communication between the defendant and the government either directly or through the informer. Moreover, the defendant chose not to call the other government agents, although their identities were disclosed to him and they were available as witnesses. He could also have sought the aid of the court in locating the informer.*fn7 Indeed, he could have gone into this with Agent Marass, who had already testified ...