clear predisposition to sell heroin in Mexico did not evince predisposition to sell the same heroin in the United States, in violation of independent United States law
How later courts described this case
- clear predisposition to sell heroin in Mexico did not evince predisposition to sell the same heroin in the United States, in violation of independent United States law
Written by the judges who cited it.
The opinion
GRAY, District Judge
(dissenting as to Vega):
It seems to me that the “umbrella” of Carbajal’s entrapment should, indeed, be stretched to cover Vega as well. In our opinion in this case with respect to Carbajal, we refer to Judge Ely’s comment in Notaro v. United States, 363 F.2d 169, 173 (9th Cir. 1966), in which he explained the rationale of Sorrells v. United States, 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 (1932):
“It was not thought to be right and just that a Government should instigate and successfully pursue prosecution for the commission of an act which the prosecuted would not likely have committed but for the importunity of an agent of the Government itself.”
I believe that such comment is equally applicable to Vega.
As has been discussed in the opinion concerning Carbajal’s appeal, the transportation and sale of heroin stemmed directly from the persuasion exerted by the narcotics agent. But for the latter’s activities, Carbajal would not have agreed to make the sale in the United States and would not have been looking for someone to help him with transportation. There is no indication that Vega previously dealt with narcotics in any way or that he was “ * * * awaiting any propitious opportunity to commit the offense.” Cf. United States v. Sherman, 200 F.2d 880, 882 (2d Cir. 1952). Thus, it may be said of Vega, as well as of Carbajal, that he was convicted for having perpetrated a crime that he “ * * * would not likely have committed but for the importunity of an agent of the Government itself.” (See the above quoted passage from Notaro.)
Under the circumstances here concerned, I cannot agree with the majority that “the Government agent played no part in inducing his [Vega’s] crime.” I would reverse as to Vega for the same reasons of enlightened public policy, as embodied in the doctrine of entrapment, that now cause Carbajal to go free. It seems to me that the interests of justice and simple fairness are little served by releasing the one without the other.