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Docket Number

No. 73-1659.

Attorney(S)

Murray M. Silver, Atlanta, Ga., for defendants-appellants. Robert W. Rust, U.S. Atty., Kerry J. Nahoom, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.

Judges

Thomas Gibbs Gee

Acts

Food And Drugs — Drug Abuse Prevention And Control — Control And Enforcement — Offenses And Penalties — Attempt And Conspiracy

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Smart Summary

Summary of Opinion: United States v. Newcomb & Lucas, No. 73-1659 (5th Cir. Jan. 17, 1974)

Factual and Procedural Background

This summary is derived solely from the provided opinion text.

Appellants Steven Paul Newcomb and Wayne E. Lucas, Jr. were tried by jury in the United States District Court for the Southern District of Florida and convicted of conspiracy to possess with intent to distribute approximately 80 pounds of marijuana, in violation of 21 U.S.C. § 846. They appealed, raising seven points; the court considered each and determined that two of those points warranted discussion but that none required reversal. The two issues discussed in the opinion are (1) the trial court's refusal to give an entrapment instruction and (2) denial of defense counsel's motion to inspect the grand jury minutes.

At trial, both appellants testified and denied participating in the charged conspiracy. Newcomb testified that he consistently refused to secure any marijuana for undercover agents and claimed he was arrested while unaware that any marijuana transaction was occurring. Lucas denied awareness of any drug-purchase activity, explained the presence of his car near the offense by reference to renting vehicles and staying at a nearby apartment, and denied being observed entering and leaving the house associated with the marijuana. The jury nonetheless convicted them based on the government's evidence.

Legal Issues Presented

Whether the trial court erred in refusing to instruct the jury on the defense of entrapment, given that each appellant denied commission of the acts constituting the offense but relied on cases (Henderson and Sears) that permit asserting entrapment with regard to particular overt acts.
Whether the trial court erred in denying defense counsel's motion to inspect the grand jury minutes to determine whether the indictment was founded upon hearsay or other incompetent evidence.

Arguments of the Parties

Appellants' Arguments

Appellants contended the trial judge should have given an entrapment instruction to the jury despite each denying commission of the acts constituting the offense; they relied on the exception articulated in Henderson v. United States and Sears v. United States, as explained in McCarty, that a defendant indicted for conspiracy may deny membership in the conspiracy yet assert entrapment as to a particular overt act.
Defense counsel moved to inspect the granted grand jury minutes to determine whether the indictment was based on hearsay or other incompetent evidence, suggesting the indictment might be ill-founded.

Plaintiff-Appellee / Government Position (as reflected in the opinion)

The government's evidence, as presented at trial according to the opinion, gave little or no reason to infer that either defendant had been entrapped; the government's case did not support a claim that the agents induced the defendants to commit any act.
Regarding the grand jury minutes, the government presented testimony to the grand jury (the agent in charge testified), and the record provided no indication that the grand jury's independence or integrity had been compromised such as to require production of the minutes.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in This Case
Canal Zone v. Risbrook, 454 F.2d 725 (5th Cir. 1972)	General rule that entrapment defense is unavailable to a defendant who denies commission of the acts constituting the offense charged.	The court cited Risbrook as the prevailing rule in the circuit and applied it to reject appellants' request for an entrapment instruction when appellants denied committing the acts charged.
United States v. Groessel, 440 F.2d 602 (5th Cir. 1971)	Reinforces the general rule that entrapment is unavailable where the defendant denies committing the acts constituting the offense.	Cited alongside Risbrook as part of the circuit's general approach to entrapment claims; used to support denial of entrapment instruction here.
Henderson v. United States, 237 F.2d 169 (5th Cir. 1956)	Holds that a defendant indicted for conspiracy may deny membership in the conspiracy yet assert entrapment as to a particular overt act—i.e., defenses may be inconsistent so long as proof of one does not necessarily disprove the other.	The court recognized Henderson as an exception to the general rule but concluded the exception did not apply here because appellants did not admit any culpable overt act that they claimed was induced by government agents.
Sears v. United States, 343 F.2d 139 (5th Cir. 1965)	Similar to Henderson; additionally emphasized that where the government's case in chief injects substantial evidence of entrapment, a defendant is entitled to an adjusted charge to the jury.	The court noted Sears' emphasis that substantial entrapment evidence in the government's case supports an entrapment instruction. The court found no such evidence in this case.
McCarty v. United States, 379 F.2d 285 (5th Cir. 1967)	Explains that inconsistent defenses are permissible only if proof of one defense does not necessarily disprove the other; holds that if proof that a defendant did not commit the acts constituting the offense necessarily disproves entrapment, the inconsistency is too great.	The court relied on McCarty to explain why appellants' denials precluded an entrapment instruction: here, denial of committing the acts would necessarily disprove any claim of entrapment because appellants admitted no culpable acts that could have been induced.
Costello v. United States, 350 U.S. 359 (1956)	Establishes that an indictment based exclusively on hearsay is not constitutionally invalid and that a defendant is not entitled to litigate the sufficiency of the grand jury's evidence.	The court applied Costello to reject the contention that defense counsel was entitled to grand jury minutes to test the sufficiency of the grand jury evidence; Costello supports non-disclosure absent a showing of grand jury impairment.
United States v. Klaes, 453 F.2d 1375 (5th Cir. 1972)	Applied Costello's principle in the Fifth Circuit context regarding grand jury evidence and non-disclosure.	Cited as authority consistent with the holding that a defendant may not insist on disclosure of grand jury minutes merely to test the sufficiency of the evidence.
United States v. Gower, 447 F.2d 187 (5th Cir. 1971)	Further Fifth Circuit precedent supporting non-reviewability of grand jury evidence sufficiency by defendants.	Cited alongside Klaes to support denial of inspection of grand jury minutes.
United States v. Cruz, 478 F.2d 408 (5th Cir. 1973)	Describes the "best evidence" rule (as used by some Second Circuit judges) as a supervisory guideline to determine whether the independence and integrity of the grand jury have been impaired.	The court relied on Cruz to treat the best-evidence argument as a supervisory consideration and found no indication that the district court abused its discretion in refusing to produce the grand jury minutes.
United States v. Leibowitz, 420 F.2d 39 (2d Cir. 1969)	(Second Circuit) Example of cases applying a doctrine that could discredit an indictment based on hearsay where certain criteria are met (see footnote in opinion).	Included in the opinion's footnote as part of the Second Circuit authorities describing circumstances under which grand jury minutes disclosure might be warranted; cited for context but not applied to find abuse here.
United States v. Malofsky, 388 F.2d 288 (2d Cir. 1968) (dicta)	(Second Circuit dicta) Discusses circumstances under which an indictment based on hearsay might be discredited.	Cited in a footnote as illustrative Second Circuit authority; the court did not treat it as controlling or as establishing abuse of discretion here.
United States v. Umans, 368 F.2d 725 (2d Cir. 1966) (dicta)	(Second Circuit dicta) Referenced regarding the limited circumstances that might justify disclosure of grand jury minutes.	Cited in the opinion's explanatory footnote; not applied to overturn the district court's ruling.
United States v. Beltram, 388 F.2d 449 (2d Cir. 1968) (dissent)	Dissenting opinions cited in the footnote as further discussion of the Second Circuit's approach to grand jury minutes disclosure.	Referenced in the opinion's footnote for context concerning dissenting views in Second Circuit authority; not relied on to find error here.
United States v. Payton, 363 F.2d 996 (2d Cir. 1966) (dissent)	Dissenting opinion cited in the footnote concerning the Second Circuit's handling of grand jury minute disclosure.	Mentioned in the opinion's footnote for contextual discussion of the doctrine; the court did not apply it to conclude that disclosure was required.

Court's Reasoning and Analysis

The court considered the entrapment issue in light of controlling Fifth Circuit authority and the appellants' testimony. The analytical steps undertaken were as follows:

The court began with the established circuit rule (Canal Zone v. Risbrook and United States v. Groessel) that a defendant who denies commission of the acts constituting the offense cannot ordinarily invoke the entrapment defense.
It then reviewed the recognized exception found in Henderson and Sears, as explained in McCarty: inconsistent defenses are allowable when proof of one does not necessarily disprove the other, and a conspiracy defendant may deny membership in a conspiracy yet claim entrapment as to a particular overt act.
The court emphasized Sears' further point that where the government's own case supplies substantial evidence of entrapment, the charge should be adjusted accordingly.
Applying these principles to the facts, the court found that neither appellant admitted to any culpable overt act that he claimed was induced by government agents. The only acts admitted were innocuous (renting cars, presence near the scene, associating with undercover agents), and there was no rational basis to claim the government induced these innocuous acts into criminal conduct. Because appellants denied committing the incriminating acts, allowing an entrapment defense would create an impermissible inconsistency under McCarty.
On the grand jury minutes issue, the court relied on Costello (and Fifth Circuit applications such as Klaes and Gower) to state the principle that an indictment based on hearsay is not automatically invalid and that defendants are not entitled to litigate grand jury evidence sufficiency. The Cruz decision was invoked to describe the "best evidence" rule as a supervisory guideline; the court noted that the procedural safeguards of the grand jury were not shown to be compromised here because the government's agent testified to the grand jury and there was no reason to suspect the indictment was ill-founded.
The court concluded that the district judge did not abuse his discretion in refusing to produce grand jury minutes and that the appellants were not entitled to an entrapment instruction under the circumstances.

Holding and Implications

Holding: The court AFFIRMED the convictions and the district court's rulings.

Implications:

The direct effect is that the convictions of appellants Newcomb and Lucas for conspiracy to possess with intent to distribute marijuana were upheld; the trial court's refusal to give an entrapment instruction and its refusal to order production of grand jury minutes were found not to be reversible error.
The opinion applies existing Fifth Circuit precedent (Risbrook, Groessel, Henderson, Sears, McCarty) and reiterates Costello and Fifth Circuit authority (Klaes, Gower, Cruz) regarding non-disclosure of grand jury minutes; it does not announce a new legal rule or overrule existing precedent. The court explicitly declined to expand the entrapment exception where a defendant denies committing the acts constituting the offense and where the government's proof did not inject evidence of entrapment.

End of summary. This document reflects only the content and holdings contained in the provided opinion and does not add information beyond that text.

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UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. STEVEN PAUL NEWCOMB AND WAYNE E. LUCAS, JR., DEFENDANTS-APPELLANTS.

PER CURIAM:

Appellants Newcomb and Lucas were tried before a jury in the United States District Court for the Southern District of Florida and found guilty of conspiracy to possess with intent to distribute some 80 pounds of marijuana, in violation of 21 U.S.C. § 846. We have considered each of the seven points raised on appeal and conclude that, while two merit discussion herein, none requires reversal of their convictions.

Although each appellant took the stand and vigorously denied his participation in the conspiracy charged, both complain that the trial judge erred in refusing to give an entrapment instruction to the jury. Undiscouraged by the general rule in this circuit as stated in Canal Zone v. Risbrook, 454 F.2d 725 (5th Cir. 1972), and United States v. Groessel, 440 F.2d 602 (5th Cir. 1971), that the defense of entrapment is unavailable to one who denies commission of the acts constituting the offense charged, they argue that they fall within the qualification to it expressed in Henderson v. United States, 237 F.2d 169 (5th Cir. 1956), and Sears v. United States, 343 F.2d 139 (5th Cir. 1965). The rationale of these latter two cases was explained in McCarty v. United States, 379 F.2d 285, 286-287 (5th Cir. 1967), as follows:

In both Sears and Henderson the defendant was indicted for conspiracy and raised the issue of entrapment with regard to a particular overt act. The court held in both cases that the defendant could deny being a party to a conspiracy and yet raise the issue that any overt acts done by him were done because of entrapment. The rationale of these cases was that inconsistencies in defenses in criminal cases are allowable so long as the proof of one does not necessarily disprove the other. Henderson, supra, 237 F.2d at 173, Sears, supra, 343 F.2d at 143. In both cases proof that the defendant was not a member of a conspiracy would not have necessarily disproved that he was entrapped into committing a particular overt act. In the instant case, however, proof that McCarty did not commit the acts constituting the sole offense charged necessarily disproves that he was entrapped into doing the offense. We hold this to be too great a degree of inconsistency in defenses to be permitted.

To this construction of the Henderson doctrine we add that the court in Sears emphasized that there the government's own case in chief injected substantial evidence of entrapment into the case and that, therefore, the defendant was entitled to have the charge adjusted to the evidence. See Sears, supra, 343 F.2d, at 143.

Here the government's case gave little or no cause for inference that either of these two defendants had been entrapped. Neither defendant's testimony accused the government agents of successfully inducing him to do anything. To the contrary, Newcomb emphatically testified that he consistently refused to secure any marijuana for the undercover agents and was "busted" while totally ignorant that any marijuana transaction was being conducted. Lucas' characterization of his own actions was, if possible, even more exculpatory: he denied that he was even aware that anyone was trying to purchase drugs. His story was that, after renting one car for himself and another for Mr. Newcomb and a friend, he met a girl in whose apartment on the same street as the "stash pad" he stayed for several days, thereby explaining the presence of his car in the vicinity of the crime. He denied that he was the person seen by agents coming and going from the house to which the marijuana was being brought.

The rule expressed in Henderson and Sears requires at the least that a defendant admit to some culpable act which he claims he was entrapped into committing. Here the only acts admitted by appellants were the purely innocuous ones of renting cars, being innocent bystanders in the vicinity of the crime, and (in the case of Newcomb) associating with undercover agents who were interested in purchasing marijuana. A collision of vacuums was thus presented; there was, and could be, no rational claim the government induced, and thereby entrapped, Newcomb or Lucas into performing such unincriminating acts. Appellants' real problem was that the jury chose to believe the government's evidence that they directly participated in the conspiracy.

The only other point on appeal that merits any discussion is defense counsel's contention that his motion to inspect the granted jury minutes should have been granted to enable him to determine whether the indictment was founded upon hearsay or other "incompetent" evidence. In the first place, the Supreme Court has decided, in Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956), that an indictment based exclusively on hearsay evidence is not constitutionally invalid and that a defendant is not entitled to litigate the sufficiency of the evidence presented to the grand jury. See United States v. Klaes, 453 F.2d 1375 (5th Cir. 1972); United States v. Gower, 447 F.2d 187 (5th Cir. 1971). Secondly, as we stated in United States v. Cruz, 478 F.2d 408 (5th Cir. 1973), the "best evidence" rule advanced by some Second Circuit judges serves simply as a supervisory guideline to be employed by courts in determining whether or not the independence and integrity of the grand jury have been impaired. Here there is no indication that the court below abused its discretion in not ordering the grand jury minutes produced for defendants. The trial judge, like this court, was given no reason to suspect that the indictment was ill-founded. Quite to the contrary, it was not even necessary for the grand jurors to rely on hearsay. The government agent in charge of the case testified before the grand jury. There, as at trial, presumably he was able to testify from first-hand information.

This rule would discredit an indictment based on hearsay where (1) nonhearsay evidence is readily available; (2) the grand jury is misled into believing it was hearing direct testimony rather than hearsay; and (3) there is a high probability that had the grand jury heard the eyewitnesses it would not have indicted. See United States v. Leibowitz, 420 F.2d 39 (2d Cir. 1969); United States v. Malofsky, 388 F.2d 288 (2d Cir. 1968) (dicta); United States v. Umans, 368 F.2d 725 (2d Cir. 1966) (dicta). See also dissenting opinions in United States v. Beltram, 388 F.2d 449, 451 (2d Cir. 1968); United States v. Payton, 363 F.2d 996, 999 (2d Cir. 1966).

Were we to hold that grand jury minutes must be turned over so that defense counsel could satisfy his mere suspicion that the indictment was based on insufficient evidence, grand jury proceedings would effectively be open at the whim of the defense. This we are not disposed to do.

Affirmed.

UNITED STATES v. NEWCOMB