RIVES, Circuit Judge.
Under 18 U.S.C. § 371, the three appellants were convicted of a conspiracy to violate certain sections of the Internal Revenue Code which proscribe the various activities connected with the distilling of non-taxpaid, or moonshine, whiskey. During the period of the alleged conspiracy, that is from August 15, 1954 to February 8, 1955, the appellant George Truitt Robbins was Sheriff of Levy County, Florida; the appellant Dees was a resident of Jacksonville, Florida, charged with having furnished financial backing for the illicit operations; and the appellant Henderson participated in the actual operation of the still.
Three other original defendants were not convicted. John C. Partin, an alleged go-between for the bribery of the sheriff was discharged on motion for judgment of acquittal. The jury returned verdicts of not guilty as to Luther M. White, who admitted furnishing financial aid to the operations but claimed entrapment, and as to Ernest C. Blair, a Supervisor for the Beverage Department of the State of Florida, charged with having accepted bribe money.
No brief has been filed, nor argument made, on behalf of the appellant Dees, but the Government does not move for dismissal of his appeal under Rule 22 of this Court, and we therefore consider his appeal on its merits along with each of the other two appeals.
Claude W. Wood, the principal or star witness for the Government, had been a policeman of Ocala, Marion County, Florida, and while so serving he was also a deputy sheriff of the County. He had, by request, resigned from the police force, after which he moved to Gainesville, Florida, where he worked as a roofer for several months and drove a taxicab for about a month. While Wood was in Gainesville, another Marion County deputy sheriff solicited his aid in the detection of liquor law violators in Marion County, which adjoins Levy County.
Thereafter, in August, 1954, Wood made several trips to see Henderson at Henderson's home some 16 miles east of Ocala, and talked to him about going into the moonshine whiskey business. On the first two occasions, at least, Henderson refused, but he finally succumbed, and he and Wood agreed to go into the moonshine business. Wood then returned to Marion County where he and his wife stayed at the home of his father and mother.
In early September, 1954, the Sheriff of Marion County and some of his deputies carried Wood to a series of conferences with C. M. Starry, District Supervisor of the Florida State Beverage Department, who had the responsibility of supervising the enforcement of the state beverage laws in ten counties, including the counties of Marion and Levy. Ernest C. Blair, a defendant in the case discharged by verdict of not guilty, was one of seven supervisors who worked under Starry. As a result of these conferences with Starry, Wood was, on September 9, 1954, secretly appointed a Special Investigator
Wood testified that Henderson knew of a still pot and condenser in Putnam County which he said belonged to J. B. Dees, one of the appellants; that, on October 6th, Henderson accompanied Wood to Jacksonville to see Dees; that there they arranged for the use of the still pot and condenser and Dees advanced them $107.00 with which to set up some fermenter barrels for him at the still site; that it was at Dees' directions that the place of operations was changed from Marion to Levy County.
On October 12, Henderson and Wood made their "first run", producing seven five-gallon jugs of whiskey. Successive runs were made on October 16, 21, 23, 26 and 27th, November 9 and thereafter. The site of the still was moved twice.
The Federal Government did not enter into the investigation until December 27, when Criminal Investigator William D. Behan of the Alcohol and Tobacco Tax Unit of the Treasury Department, stationed at Miami, was assigned by the Investigator in Charge to assist Wood in the investigation. Under the alias of Forest Crooke, Behan thereafter participated in the illicit operations. Behan was able to give positive testimony connecting Henderson with the operation of the still, Dees with its financing, and Robbins with being bribed to furnish protection in his capacity as Sheriff.
No evidence was offered on behalf of Dees. Henderson admitted his participation in the operation of the illicit distillery, but denied that he had contacted Dees or was otherwise a party to the conspiracy. His principal defense was that he had been entrapped by Wood.
Without dispute, Wood did induce Henderson to enter into the operation of the illicit still, and Henderson was at first reluctant to join. It further appears that, though Wood had resigned as a police officer of the City of Ocala, he had retained his card as deputy sheriff and was qualified and acting as such, and made use of that office in persuading Henderson to enter into the moonshine whiskey business. Nevertheless, the district court declined to charge on entrapment as to Henderson, apparently upon the theory that Henderson denied that he was a party to the conspiracy, and thereby precluded himself from relying on entrapment.
The reasoning of the district court was, of course, correct to the extent that the fact that Henderson had committed illegal acts which furthered the object of the conspiracy did not constitute him a conspirator unless he did so with some knowledge of the conspiracy,
The actual holding in that case was that the appellant was entitled to have the issue of entrapment properly submitted to the jury. Other courts have, however, definitely held that a defendant's denial of one specific act charged, such as a sale of whiskey,
Rule 8(e) (2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. provides that a party may plead as many separate defenses as he has "regardless of consistency". No similar provision occurs in the Federal Rules of Criminal Procedure, and, indeed, no such provision would be appropriate in view of the fact that all possible defenses not raised by appropriate motion are embraced within the plea of not guilty. Rule 12 (a), Federal Rules of Criminal Procedure, 18 U.S.C.A. Indeed, long prior to the adoption of those rules, it had been settled that the defense of entrapment was raised by the plea of not guilty. Sorrells v. United States, 287 U.S. 435, 452, 53 S.Ct. 210, 77 L.Ed. 413. The fact, however, that such a plea raised both issues, that is, that Henderson did not enter into the conspiracy charged and that he was entrapped so to do, does not necessarily mean that he can rely upon both defenses, but simply changes the form of the question by transferring it from the pleadings to the proof. Substantially, the question remains the same.
Corpus Juris states the rule in criminal cases as follows:
To like effect is Abbott, Criminal Trial Practice (4th ed., 1939) § 371, p. 675.
The common goals of all trials, civil and criminal, of issues of fact is to arrive at the truth, and it would seem that inconsistent positions should be permitted or not permitted according to whether they might help or hinder a search for the truth. Perhaps that may depend upon the degree of inconsistency.
In most common law jurisdictions, prior to the advent of statutes or rules like the Federal Rules of Civil Procedure, the admissibility of inconsistent pleadings in civil actions depended upon their degree of inconsistency. With ample citations of authority, the rule is thus stated in 71 C.J.S., Pleading, § 125, pp. 275, 276:
See also, 41 Am.Jur., Pleading, §§ 47, 48.
If the evidence fails to prove by the required standard that the defendant committed the act charged or had the
Was there another reason, a sound reason, which would justify that action of the district court? The authoritative exposition of the doctrine of entrapment as applied in the federal courts is contained in the case of Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; see United States v. Sherman, 2d Cir., 200 F.2d 880, 882. Speaking for the minority, consisting of himself and Justices Brandeis and Stone, Justice Roberts thought the defense was based upon the following rationale:
Chief Justice Hughes, speaking for the Court, concluded his exposition of the rationale of the defense as follows:
See also, Demos v. United States, 5 Cir., 205 F.2d 596, 599.
The majority opinion in Sorrells v. United States, supra, is, of course, binding upon this Court. There it is made clear that the defense of entrapment is permitted not because the defendant is justified or excused on account of having been induced to commit the crime, but because the Court reads out of the definition of the crime itself cases where a person otherwise innocent has been induced by officers of the law to commit the crime in order that he might be prosecuted. To quote further from that opinion:
Again, that opinion expressed the controlling question as follows:
We have been cited to no case and have found none passing upon the question of whether the defense of entrapment can be sustained by proof of acts of inducement on the part of a state officer not under the direction of or in collaboration with any federal officer. Some pertinent authority may not have been discovered because that question has not been raised in brief or argument. The present record, however, does present for decision whether the answer to that question might furnish a sound basis for the action of the district court in declining to charge on entrapment as to Henderson. Hence, at the risk of raising a
Well settled, of course, it is that the doctrine of entrapment does not extend to acts of inducement on the part of a private citizen who is not an officer of the law. Kott v. United States, 5 Cir., 163 F.2d 984, 987. Jindra v. United States, 5 Cir., 69 F.2d 429, 431; Gargano v. United States, 5 Cir., 24 F.2d 625; Newman v. United States, 9 Cir., 28 F.2d 681, 682; Polski v. United States, 8 Cir., 33 F.2d 686, 687; Beard v. United States, 8 Cir., 59 F.2d 940, 941. There are expressions in Sorrells v. United States, supra, and in some of the cases just cited, which indicate that the doctrine of entrapment can be invoked only where the Government, acting through some of its own officers or agents, is chargeable with inducing the commission of the offense. See also, United States v. Sherman, 2d Cir., 200 F.2d 880, 882. On the other hand, some expressions in Sorrells v. United States, supra, and in some of those cases and the language of other authorities, are broad enough to include within the defense the acts of all officers of the law, state and federal, in inducing a person otherwise innocent to commit a crime in order that he might be punished therefor. See Butts v. United States, 8 Cir., 273 F. 35, 18 A.L. R. 143; 15 Am.Jur., Criminal Law, § 336. Expressions either way, however, not called for by the facts or circumstances of the case, are no more than dicta, entitled to weight only in so far as the reasons therefor may justify the language used; and, apparently, in none of the cases has the court had the distinction here presented so clearly in mind as to express its reasons for a ruling one way or the other. The language employed in the decisions is, therefore, of little help to us.
The apparent analogy which comes most readily to mind is the doctrine of the search and seizure cases under which evidence obtained by an illegal search or seizure by state officers, not made for the purpose of aiding in the prosecution of a federal offense, and in which no federal officer has taken any part, is admissible notwithstanding the illegality of the search or seizure. Boyd v. United States, 116 U.S. 616, 618, 6 S.Ct. 524, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652; Byars v. United States, 273 U.S. 28, 47 S.Ct. 248, 71 L.Ed. 520; Gambino v. United States, 275 U.S. 310, 313, 316, 317, 48 S.Ct. 137, 72 L.Ed. 293; Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782; Lustig v. United States, 338 U.S. 74, 69 S.Ct. 1372, 93 L. Ed. 1819; Rea v. United States, 350 U.S. 214, 216, 217, 76 S.Ct. 292. Those cases, however, rest upon reasoning not here applicable, principally upon disciplinary considerations tending to practical respect for the Fourth Amendment. True, those cases are based also on the conclusion that state officers, under such circumstances, are not agents of the Federal Government.
The former jeopardy cases would seem to establish that, in the enforcement of their criminal laws, the state and federal governments occupy the positions of separate sovereignties. 15 Am.Jur., Criminal Law, § 394, and cases there cited.
It can plausibly be argued that, since the United States and the States are each autonomous, and the employees of the one are not the agents of the other, the defense of entrapment to commit a crime against the United States cannot be based upon acts of inducement by a state officer. In our opinion, however, that conclusion does not necessarily follow. State officers do not stand in the same relation to the United States as if they were private citizens, or were officers of a foreign sovereignty. To the contrary, all executive officers of the several states are bound by oath or affirmation to support the Constitution of the United States. Art. VI, Clause 3 of the Constitution; 4 U.S.C.A. § 101.
It was at an early date questioned whether the Congress could constitutionally impose upon state officers the power and duty to enforce federal criminal law, Prigg v. Pennsylvania, 16 Pet. 539, 615, 10 L.Ed. 1060; but that
In the present instance, Congress has imposed no affirmative duty upon the state officers to enforce the federal criminal law. It was, nevertheless, entirely proper and permissible for the state officers to cooperate to that end. In the language of Mr. Justice McKenna speaking for the Court in Hoke v. United States, 227 U.S. 308, 322, 33 S.Ct. 281, 284, 57 L.Ed. 523:
Professor Corwin has well remarked (Constitution of the United States of America, Revised and Annotated, 1952, at page 739): "Nowadays, there is constant cooperation, both in peacetime and in wartime, in many fields between National and State Officers and official bodies." While state officers are not agents of the United States, yet under the cooperative conception of the federal system, they bear to the Government a much closer relationship than strangers.
The just rule seems to us to be that, when a state officer has induced a person otherwise innocent to commit a crime in order to punish him therefor, the United States cannot take over the task of punishment by prosecuting for the federal offense without allowing the defense of entrapment, the same as if the inducement had been by a federal officer. The moral wrong in each instance is equally grave, and each is equally outside of and contrary to the spirit of the statute defining the federal offense. In our opinion, the same high public policy in the maintenance of the integrity of administration which precludes the enforcement of a federal criminal statute, when Government officials have lured persons otherwise innocent to its violation in order that they might be punished, is sufficiently broad to include acts of inducement on the part of all officers of the law, state and federal alike. We, therefore, find no sound basis for the action of the district court in declining to charge on entrapment as to Henderson.
Robbins admits his acceptance of the bribe money and having promised protection for the moonshine operation, as testified to by Wood and Behan, but defends on the ground that he had no criminal intent. He insists that he was merely feigning participation in the conspiracy to lay a trap for the "big boys", the financial backers of the criminal activities. To corroborate his contentions as to his good faith activity as a law enforcement officer, he produced the jailer, several members of the sheriff's force, a local constable, a policeman, and a county judge, all of whom to some extent substantiated his claims of having reported the substance of his interviews with Wood and Behan, his receipt of their bribe money, and its preservation as evidence against them. However, there is other evidence showing that, during the several months of his participation in the scheme, Robbins never reported the existence or progress of his own investigation to any state or federal officials charged with any independent responsibility and duty of liquor law enforcement, nor did he ever arrest any of the participants in the actual illicit distilling operations even though he admittedly knew who they
The judgments of conviction against Dees and Robbins are affirmed, and that against Henderson is reversed, and his case is remanded for a new trial.
Affirmed in part and in part reversed and remanded.
The district court charged the jury as follows:
"An overt act alone, without an unlawful agreement or understanding, is not a criminal conspiracy. In other words, Mr. Henderson has here based his defense entirely on the fact that while he committed these overt acts of assisting in the setting up of a still and in the manufacture of moonshine he knew nothing about the conspiracy, he didn't see Partin, he didn't see the Sheriff, he didn't see Blair, he didn't do any of those other things that he is charged with doing in the indictment, and which the Government witnesses testified that he did do. Now, don't you see when you come to Henderson how it narrows down to what you have got to consider in this case to determine his guilt or innocence. If you believe the Government witnesses insofar as his activities in the other respects and disregard his testimony, then he was a party to the conspiracy. If you have a reasonable doubt as to whether or not he participated in any other acts other than the mere operation of the still and the manufacture of moonshine whiskey, then he wouldn't be guilty of this conspiracy."