The opinion
BARTELS, District Judge
(concurring):
I concur in the majority’s decision to reverse but for another reason.
I do not believe that Judge Cooper committed plain error in his supplemental charge to the jury, thus preventing consideration of the defense of entrapment as to the first period of the conspiracy count which the jury might find Brown admitted. Nor can I agree with the defendant’s contention that the district court neglected to charge the jury sufficiently as to reasonable doubt and the burden of proof as they relate to entrapment. I would reverse not because of the specifics above mentioned in the supplemental charge but because the district court adopted the rule of Sylvia v. United States, 312 F.2d 145, 147 (1st Cir.), cert. denied, 374 U.S. 809 , 83 S.Ct. 1694 , 10 L.Ed.2d 1052 (1963), prohibiting inconsistent or alternate defenses of denial of the offense and at the same time interposition of the defense of entrapment.
First Claim of Plain Error
In support of the defendant’s first claim of plain error, the majority asserts that Brown interposed two defenses, (i) entrapment, and (ii) lack of intent, relating to two distinct time periods within the life of the conspiracy, the first being January 1 to January 14, and the second being January 14 to February 15,1975. I agree that since the defenses related to different time periods they were not inconsistent, and I further agree that “Brown was entitled to a charge which would not preclude the jury from considering both defenses.” I believe he received such a charge. I find it difficult to agree that the district court’s supplemental charge “led the jury to believe that the defense of entrapment could be considered only if they found that Brown admitted the conspiracy in toto.” The difficulty with the charge is that the district court adopted the rule in Sylvia v. United States, supra, which prohibits a defendant from asserting simultaneously the inconsistent or alternate defenses that he did not commit the crime and if he did commit the crime, that he was entrapped. Under this rule Judge Cooper was required to charge that the defense of entrapment could not be interposed unless the defendant first admitted the conspiracy. Although the defendant did admit the conspiracy from January 1 to January 14, he did not admit the conspiracy from January 14 to February 15. I am troubled with the majority conclusion that plain error resulted when the district court did not divide the conspiracy charge into two distinct time periods within the life of the conspiracy and charge the the jury that there were two different defenses applicable to the two periods. I find nothing in the court’s charge which required the jury to find that the defendant admitted the conspiracy during both periods, i. e., in toto, before they could consider the defense of entrapment at all. The court simply stated that the conspiracy had to be admitted before the defense of entrapment could be considered.
At the beginning of the main charge, the district court clearly stated that the Government would have to prove intent to conspire beyond a reasonable doubt before the jury could find a verdict of guilty, and naturally such an intent would apply to both periods of the conspiracy. It does not follow that the jury would have inferred from the charge given that if they failed to find an admission to conspire as to the latter period, they were then prevented from considering the defense of entrapment during the former period even if they found that the defendant had admitted conspiracy during that period. The majority assumes that since the defendant did not admit the conspiracy after January 14 the jury must have thought from the charge that they could not consider entrapment before January 14. But this conclusion cannot necessarily be inferred simply because the Judge did not fragment the charge on conspiracy into two different periods. I do not believe *1161 that the jury received this impression particularly since the district court stated in part:
“If you conclude that he admitted the conspiracy, then you apply the defense of entrapment, because you don’t apply entrapment if a man denies he did something, only when he admits he did it.”
In my view this charge did not foreclose the jury’s option of finding the entrapment defense available for any period of the conspiracy less than its entirety. The majority observed that in view of Brown’s testimony concerning conspiracy after January 14, “the jury must have thought that it could not consider the entrapment at all with respect to the conspiracy.” It is impossible to evaluate what factors entered into the jury’s verdict. The jury was not compelled to believe Brown particularly since his testimony that he was “playing along” appears to be incredible in view of his admission of intent as to the first period. In any event, “the jury has the power to bring in a verdict in the teeth of both law and facts,” Horning v. District of Columbia, 254 U.S. 135, 138 , 41 S.Ct. 53, 54 , 65 L.Ed. 185 (1920) (Holmes, J.), if it has not been misled.
Referring to the failure of the court to charge with respect to two different periods within the conspiracy, defense counsel neither requested a divisible charge nor objected to the court’s indivisible supplemental charge. Instead, defense counsel concentrated in his summation on the entrapment issue making no mention of the defendant’s lack of the requisite intent or the two different defenses now asserted. Now that a guilty verdict has been obtained defense counsel for the first time talks about the two different periods and claims plain error. Indeed, defense counsel requested the court to charge that the defendant admitted the entire conspiracy, thus impliedly consenting that there was no necessity to charge specifically as to the different periods within the conspiracy. It is hard to escape the conclusion that counsel deliberately chose this approach as part of the strategy of defense realizing that after the defendant’s admission of intent to conspire with respect to the first period it was unlikely that the jury would find lack of intent for the second period. In this context it would appear to be good defense tactics to emphasize entrapment with respect to the entire period. As Judge Lumbard stated in United States v. Stallings, 273 F.2d 740, 742 (2d Cir. 1960), quoting Edwards v. United States, 265 F.2d 909, 910 (6th Cir.), cert. denied, 361 U.S. 845 , 80 S.Ct. 98 , 4 L.Ed.2d 83 (1959), “ ‘There is no warrant . for relieving the accused of the consequences of what appears to have been a planned defense stratagem, by the device of condemning as ‘clear error’ of the trial court a seemingly calculated risk of defense counsel which happened not to achieve the intended result with the jury.’ ” Here, even if there were plain error, there is no warrant to relieve the defendant of his counsel’s calculated risk.
Second Claim of Plain Error
I find no merit in the defendant’s second claim of plain error in the trial court’s alleged omission to charge on reasonable doubt and on the burden of proof relating to entrapment. The pertinent portion of the charge reads as follows:
“Now, as to the burden of proof on the issue of entrapment. If you should find there is some evidence of enducement, then the government has the burden of proving that such inducement was not the cause or creator of the crime. In other words, the government must prove that this defendant was ready and willing to commit the offense charged. Have I made that clear? I have repeated it backwards and forwards, the same idea, but it is important that you get it. Again, I say I am encouraged by the nodding of your' heads spontaneously and that satisfies me that I need not dwell on entrapment further.”
It is true that there is an omission of the phrase “beyond a reasonable doubt” with reference to the burden of proof in this instance, but the court throughout the charge mentioned again and again that the government must prove its case beyond a *1162 reasonable doubt, and there is little doubt that the jury understood the quantum of proof required. Defense counsel did not object to the omission but again waited for the appeal to raise the issue.
Conclusion
As noted at the beginning, the problems arising from the trial court’s charge are caused primarily by its adoption of the rule in Sylvia v. United States, supra, and the other cases cited in United States v. Swiderski, 539 F.2d 854 , 859 n. 4 (2d Cir. 1976), prohibiting inconsistent or alternate defenses. As stated by the majority, in this Circuit the question continues to remain open, see United States v. Swiderski, supra, and it would be presumptuous for me to predict which of the two standards the Circuit will or should adopt. Nevertheless, since I cannot concur in reversal for the reasons stated by the majority, I do not believe it is inappropriate for me to vote for reversal upon the ground that inconsistent or alternate defenses are permissible and that the trial court should have permitted the same under the rule set forth in Hansford v. United States, 112 U.S.App.D.C. 359 , 303 F.2d 219, 221 (1962); Crisp v. United States, 262 F.2d 68, 70 (4th Cir. 1958); and Scriber v. United States, 4 F.2d 97, 98 (6th Cir. 1925).