343 F.2d 139 (5th Cir. 1965)
Julian Sears, sheriff of Coffee County, Georgia, was convicted in the district court after a separate trial on an indictment charging him with conspiring with Harris Johnson, Beecher Wright, and other persons unknown to violate the Internal Revenue laws relating to the possession of an unregistered distillery. The alleged co-conspirators were jointly indicted but a severance was granted.1
The government's case centered on the testimony of Dorsey Davis, a former bootlegger employed by federal agents as an undercover agent and informer.2 Davis approached the agents offering to help secure evidence against Sears based on their past collaboration in the whisky business and his desire to see Sears caught. The agents agreed to pay him $10.00 a day for expenses plus a substantial sum if successful, and Davis ultimately received an $800.00 fee while possibly earning up to $10,000 total across cases.3
Davis first contacted Sears on July 2, 1963, proposing to resume illegal whisky operations and requesting protection in exchange for $250.00 a week, which Sears accepted.4 Davis then arranged with Johnson and Wright, who had an illegal still in operation, to operate it as co-venturers, with Davis working at the still to acquire an interest. On September 4, 1963, Davis reapproached Sears, tendered the first $250.00 payment after some hesitation by Sears, and they agreed to meet each Wednesday night in a secluded area.5
Over the next four weeks, Davis met Sears in the woods and paid him $250.00 each time.6 Sears agreed to warn Davis of federal agents by placing a pine top in the left rut of the trail to the still.7 Although Sears had no direct contact with Johnson or Wright and did not know their names, a tape recording of one meeting showed that Sears knew Davis was not alone in the enterprise.8 Davis and federal agent Hayes operated the still, delivering production to Johnson, while Wright assisted only initially before withdrawing.9
Davis had been hired on a contingent fee basis specifically to produce evidence against Sears.10 Davis instigated the scheme by seeking out Sears and suggesting the illegal collaboration, and he harbored a grudge against Sears. Sears had previously destroyed 95 illicit distilleries during his less than three years as sheriff and showed reluctance when first tendered the payment due to an upcoming election. Sears appealed his conviction to the Fifth Circuit.
Whether the evidence was sufficient to prove that Sears conspired with Johnson and Wright?11
It is firmly established that it is not necessary for a conspirator to know the identity of his co-conspirators or the exact role which they play in the conspiracy.12 Government informers may serve as the connecting link between co-conspirators when the defendant agrees to furnish protection with knowledge that others are assisting in the illegal enterprise.
Yes. The established facts show that although Sears had no direct contact with Johnson and Wright and did not know their names, a tape recording of one clandestine meeting demonstrated that Sears knew Davis was not alone in the enterprise.13 By agreeing to furnish protection for $250.00 a week and to use a pine top warning signal, Sears plainly intended to assist the unknown persons working with Davis.14
The facts further establish that Davis and Johnson operated the still as co-venturers with Wright assisting initially, and all production was delivered to Johnson except one purchase by agents. These specific facts satisfy the rule that a conspirator need not know the precise identities or roles of others, allowing the informer Davis to connect Sears to Johnson and Wright.15
The evidence was sufficient to support the conspiracy charged between Sears, Johnson, and Wright.16
Whether the district court erred in refusing a cautionary instruction that the jury could convict only upon finding Sears knew others were assisting Davis?17
Although the evidence was sufficient to support the conspiracy charged, it was not the province of the jury to convict Sears merely upon finding that he had accepted money from Davis and furnished protection.18 There can be no indictable conspiracy with a government informer who secretly intends to frustrate the conspiracy.19 The jury must find that Sears knew that there were others assisting Davis in his illegal whisky activities.20
Yes. The established facts reveal that Davis was an undercover agent secretly intending to frustrate the conspiracy and was not named as a co-conspirator, while Sears had no direct contact with Johnson and Wright.21 The district court refused the requested cautionary instruction despite the posture of the evidence, under which the jury may well have believed that it could convict Sears simply by believing that he agreed with Davis and accepted bribes from him.22 The facts show four weekly payments of $250.00 and the pine top agreement occurred after Davis had arranged the still with Johnson and Wright, making the knowledge element essential to link Sears beyond the informer alone.23
The district court erred in refusing to give the cautionary instruction.24
Whether entrapment is available as a defense to a defendant who denies committing the charged acts when the government's own evidence injects substantial proof of entrapment?25
Where the government's own case in chief injected substantial evidence of entrapment into the case, the defendant is entitled to raise the defense by motion for acquittal and by requested instruction to the jury.26 The ultimate goal of the criminal trial, the ascertainment of truth, permits no other course.27 A criminal defendant should not forfeit what may be a valid defense merely because the defendant elected to put the government to its proof.28
Yes. The established facts demonstrate that the government's own witnesses, including Davis, Hamilton, and Higginbotham, testified that Davis was hired on a contingent fee basis specifically to produce evidence against Sears. Davis instigated the scheme by seeking out Sears and suggesting the illegal collaboration. Davis harbored a grudge against Sears.
Sears denied the acts at trial but introduced no entrapment evidence himself. Yet the government's case in chief supplied the substantial proof of inducement, including Sears's reluctance due to an upcoming election and his prior record of destroying 95 illicit distilleries. These facts allow the defense without impermissible inconsistency.29
Entrapment is available as a defense under these circumstances even though the defendant denies committing the charged acts.30
Whether the district court erred in denying a motion for acquittal on entrapment as a matter of law and in refusing to instruct the jury on entrapment?31
The fundamental question in entrapment is whether the government agents actively induced the defendant to commit the crime charged or merely afforded him an opportunity to do so.32 A contingent fee arrangement to produce evidence against a particular named defendant as to crimes not yet committed constitutes entrapment as a matter of law in the absence of justification.33 Justification may include knowledge that the defendant was engaging in illegal activities or careful instructions to the informer.34
No. The district court did not err in denying the motion for acquittal on entrapment as a matter of law.35 Yes. The district court erred in refusing to instruct the jury on the entrapment defense.36 The established facts show that Davis approached the agents and informed them that Sears had accepted payoffs in the past, furnishing adequate grounds to believe Sears was engaging in illegal activities, and that Sears was a state law enforcement officer sworn to uphold the law, which made investigation more difficult and supplied justification for the contingent fee.37
However, the facts also establish that Davis sought out Sears to suggest the scheme, worked on a contingent fee basis, had a grudge against Sears, and that Sears showed reluctance when first tendered the payment while having destroyed many stills previously, creating sufficient evidence upon which a jury would have been authorized to find that government agents actively induced Sears to commit the crime.38
The district court did not err in denying the motion for acquittal on entrapment as a matter of law but did err in refusing to instruct the jury on the entrapment defense.39