258 F.

2d 94

Howard R. MARSHALL, Appellant,

v.
UNITED STATES of America, Appellee.
No. 5796.

United States Court of Appeals Tenth Circuit.

July 22, 1958, Rehearing Denied Aug. 21, 1958, Certiorari
Granted Nov. 17, 1958, See 79 S.Ct. 153.

George J. Francis, Denver, Colo., for appellant.

Arthur A. Dickerman, Los Angeles, Cal. (Donald E. Kelley, U.S. Atty. for
District of Colorado, Robert S. Wham and James C. Perrill, Asst. U.S.
Attys., for District of Colorado, Denver, Colo., and Leonard D. Hardy,
Atty. U.S. Department of Health, Education and Welfare, Washington,
D.C., on the brief), for appellee.
Before MURRAH, PICKETT and LEWIS, Circuit Judges.
LEWIS, Circuit Judge.

Appellant was convicted on two counts of an information charging violation of

the Federal Food, Drug and Cosmetic Act, 21 U.S.C.A. 301 et seq. The
principal issues before us spring from appellant's contentions that as a matter of
law the defense of entrapment was established and that he was prejudiced
beyond recall by newspaper accounts published during the course of his trial.
Other errors assigned question the jurisdiction of the court and the sufficiency
of the evidence to support the verdicts.

The alleged entrapment centers around the activities of Robert E. Keating, an

inspector for the United States Food and Drug Administration and an
uncontroverted witness for the prosecution. Keating first met appellant in
Denver, Colorado on April 18, 1956. The introduction of the two men was
made at appellant's apartment by mutual friends, was purely social in form and
did not disclose Keating's official employment. The conversation at this initial
meeting was casual and general. On April 23 Keating returned to appellant's

apartment and again visited with appellant and his wife. After some further
social talk, Keating stated that he was driving to Dallas, Texas, that evening and
requested from appellant some stayawake pills to help him in the traveling.
Appellant replied that Keating should obtain and take some No-Doz1 tablets
and drink coffee. Keating replied that he had tried No-Doz and coffee without
obtaining the desired effect and wanted something different. Appellant repeated
his recommendation and the conversation was then diverted into other subjects.
After Keating left the apartment he was hailed by appellant and handed a
package containing five tablets and two capsules. Appellant stated that the
tablets were to be used if Keating became sleepy while driving and that the
capsules should be taken if he was nervous after arriving in Dallas. Chemical
analysis of the tablets established them to be dextro-amphetamine sulfate, a
drug within the meaning of 21 U.S.C.A. 353(b)(1) (B)2 and within the
prohibition of unlicensed dispensing under 21 U.S.C.A. 331(k).3
3

On May 1, Keating again called on appellant, stating that he had 'gotten along
very well' on the Dallas trip and would like a hundred or so of each of the drugs
for a trip to be made to Los Angeles upon the following day. Appellant replied
that he would have to go to the drugstore, refused Keating's suggestion that they
go together, and told Keating to return later. This he did and was handed two
vials containing 50 tablets and 24 capsules later analyzed as the prohibited
drug. Keating paid appellant $15 upon this occasion.

It is undisputed that all of Keating's representations relative to his identity,

occupation, trips and use of drugs were entirely false and that upon each
occasion the atmosphere of social friendship was created by conversation
unrelated to the subject of stay-awake tablets.

The defendant offered no evidence. The issue of entrapment was submitted to

the jury upon instructions not here questioned and the defense was rejected by
conviction. Appellant urges that the court should have ruled as a matter of law
that entrapment was established.

The fountainhead rule and philosophy of entrapment was set out in Sorrells v.
United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413, and very recently
debated in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d
848, and Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859,
both decided May 19, 1958. In Sherman, the court in reviewing the undisputed
testimony of a government witness unanimously concluded that the trial court
was required under the circumstances therein to direct a verdict effectuating the
defense of entrapment as a matter of law. The order of reversal set aside a
verdict of a jury which had considered and rejected entrapment as a defense

submitted to its consideration under instruction of the court. Since the instant
case, as Sherman, involves only consideration of the undisputed testimony of a
government witness with no issue of credibility involved we conclude that
submission of the issue of entrapment to the jury was improper. However, such
submission could not prejudice appellant, in fact could but give him an
unwarranted advantage, unless a directed verdict was required as a matter of
law. A comparison of the activities of Keating with those of the informer in
Sherman, where entrapment was established as a matter of law, and with those
of the government agent in Masciale, where the court held entrapment not so
established, shows the latter case to be persuasive.
7

In Sherman, the government informer met the defendant at a doctor's office

where both were apparently being treated for narcotics addiction. They
discussed over a period of time their difficulties in overcoming their habits and
finally the informer confessed that he was unable to do so, begging the
defendant to help him find a source of supply. Only after a number of
repetitions of the request did the defendant finally procure the drug for his
acquaintance. The result of this conduct was that the defendant himself returned
to the use of narcotics. Emphasis is placed upon the fact that the government
played upon the known weaknesses of the defendant and that the crime resulted
from the 'creative activity' of the law enforcement officials. See 287 U.S. at
pages 441, 451, 53 S.Ct. at pages 212, 216.

In Masciale, the defendant was introduced to a government agent by an

informer who did not reveal the agent's capacity with the government. The
agent solicited the defendant for an introduction to a supplier of heroin. The
court noted that the factual situation was such as to allow an inference that the
defendant needed no persuasion to commit the crime.

Although in our case the activities of Keating consisted of artifice and deceit to
lay a trap for defendant we believe the activities of the government to be well
within allowable limits. The law will protect the innocent from being led to
crime through the activities of law enforcement officers, Sherman v. United
States, supra, but it will not protect the guilty from the consequences of
subjectively mistaking apparent for actual opportunity to safely commit crime.
Sorrells v. United States, supra; Archambault v. United States, 10 Cir., 224
F.2d 925.

10

During the course of the trial two articles of a reckless nature were published in
local newspapers covering matters far removed in time and place from a factual
report of the trial occurrence. Six of the jurors read one of the articles and two
of the six had read both. The trial court separately interviewed, in the presence

and with the assistance of counsel, each of the jurors and thereafter denied a
motion for mistrial. Each of the jurors indicated the articles would in no way
influence his verdict. 4
11

It is conceded that a motion for a mistrial is addressed to the sound discretion of

the trial judge, and whether it should be granted depends upon all of the
circumstances in the case, United States v. Carruthers, 7 Cir., 152 F.2d 512;
Marson v. United States, 6 Cir., 203 F.2d 904; Webb v. United States, 10 Cir.,
191 F.2d 512. The mere appearance of articles concerning the trial cannot
compel a new trial, for the defense may at times be aided rather than hindered
or the report may only convey to jurors that which they had heard the previous
day in court or amount to fair comment thereon. Miller v. Commonwealth of
Kentucky, 6 Cir., 40 F.2d 820; Klose v. United States, 8 Cir., 49 F.2d 177;
United States v. Pisano, 7 Cir., 193 F.2d 355. A cautionary instruction against
prejudice or consideration of evidence beyond that presented in the courtroom
has been held in such instances to be sufficient safeguard for defendant's rights.

12

It is true that in certain instances the probable influence of newspaper publicity

is so obvious that instructions by the court cannot be held to have preserved
inviolate defendant's rights to a fair trial before an unbiased jury. See
concurring opinion of Justices Jackson and Frankfurter, Shepherd v. State of
Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740; Griffin v. United States, 3
Cir., 295 F. 437. But the difficulties of ever obtaining a jury completely
unknowing and hence presumably unprejudiced in this day of wide coverage
and circulation of newspapers presents a very real problem in the administration
of justice. For this reason, some courts have been led to holding that to secure a
reversal on this ground the defendant must demonstrate that the failure to
declare a mistrial under such circumstances was prejudicial to him, Gicinto v.
United States, 8 Cir., 212 F.2d 8, certiorari denied 348 U.S. 884, 75 S.Ct. 125,
99 L.Ed. 695; United States v. Carruthers, supra.

13

Had the instant trial been to the court alone it would be unquestioned that the
court would be capable of and would divorce the extraneous matters from his
mind and be perfectly free to continue with the trial. The care with which the
trial court explored the knowledge and feeling of the individual jurors indicated
to him that each juror was similarly qualified to proceed without prejudice. We
cannot say the trial court abused its discretion in accepting as true the solemn
statements of the individual jurors that no improper influence would carry over
into their deliberations. See United States v. Postma, 2 Cir., 242 F.2d 488.
Strengthening our view that the trial court did not err in denying a mistrial is
the completed record of the trial for, as stated in Kotteakos v. United States,
328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557:

14

'In the final analysis judgment in each case must be influenced by conviction
resulting from examination of the proceedings in their entirety, tempered but
not governed in any rigid sense of stare decisis by what has been done in similar
situations. * * * Necessarily the character of the proceeding, what is at stake
upon its outcome, and the relation of the error asserted to casting the balance
for decision on the case as a whole, are material factors in judgment.' 328 U.S.
at page 762, 66 S.Ct. at page 1246.

15

Here no affirmative defense was offered, neither the appellant nor a witness for
him testified in his behalf; he was content to rely upon the hope of a failure of
proof by the prosecution. The evidence was uncontroverted that he committed
the crime and his contention that he was entitled to go to the jury on evidence
of entrapment appearing in government testimony was, as we have held,
without merit. Under all of the circumstances of the case, therefore, a jury
properly instructed and acting in accordance with its duty could but return a
verdict of guilty. We find no area for prejudice to occupy, even if it existed.

16

Appellant's other contentions require little discussion. Asserting in the

alternative that the federal court had no jurisdiction to try this offense because
the drug, although shown to have traveled in interstate commerce, was no
longer within federally protected traffic or that Congress constitutionally lacked
the power to grant such jurisdiction, appellant cites the controlling case of
United States v. Sullivan, 332 U.S. 689, 68 S.Ct. 331, 92 L.Ed. 297. Both
propositions were settled in that case contrary to appellant's position on facts
sufficiently similar to preclude argument.

17

21 U.S.C.A. 331(k) makes it an offense to do any act with respect to a drug

which results in its being misbranded while the article is held for sale after
shipment in interstate commerce. The Supreme Court in the Sullivan case
refused to give a restrictive interpretation to the statute because Congress
intended to give protection to the ultimate consumer from the moment of the
introduction of a drug into interstate commerce to the time of final delivery,
regardless of intermediate intrastate transactions. It was there held that the Act
as thus construed does not exceed the constitutional power of Congress under
the Commerce Clause or invade the powers reserved to the states.

18

The prosecution's case showed that the dextro-amphetamine sulfate tablets

were manufactured in New York and that they were ultimately dispensed by
appellant in Colorado. Apparently in this, as in most cases, it was impossible to
trace the route taken in interstate commerce or to show that appellant received
them from an interstate sale, but under the language of the statute and the
interpretation of the Supreme Court, intervening sales are immaterial.

Archambault v. United States, supra.

19

Appellant finally argues that the proof that the drugs were manufactured in
New York was incomplete, basing his argument on the fact that the tablets
were compared for identification purposes with similar tablets previously
collected from various manufacturers by the laboratory of the Food and Drug
Administration. However, this comparison with the 'reference collection' was
only preliminary and the investigation was concluded at the plant of the New
York pharmacal company where identification both chemical and physical was
made by the testifying witness. There is no merit in appellant's contention that
the fact of interstate shipment was not adequately proved.

20

Affirmed.

21

MURRAH, Circuit Judge (dissenting).

22

We all appreciate the necessity for maintaining the inviolability of jury trials
and our inescapable duty to vouchsafe them in the administration of justice.
And, we know that we can do so only by wholly disinterested jurors whose
judgments are based only upon a consideration of competent proof produced in
open court. See Southern Pacific Co. v. Klinge, 10 Cir., 65 F.2d 85; Little v.
United States, 10 Cir., 73 F.2d 861; Stone v. United States, 6 Cir., 113 F.2d 70;
Briggs v. United States, 6 Cir., 221 F.2d 636. We recently had occasion to reemphasize our solicitude in this regard. Consolidated Gas & Equipment Co. v.
Carver, 10 Cir., 257 F.2d 111. And see also Rubenstein v. United States, 10
Cir., 227 F.2d 638, certiorari denied 350 U.S. 993, 76 S.Ct. 542, 100 L.Ed. 858.
Our problem is to achieve this ideal in an environment where crime and
violence are exploited by news media and jurors are likely to be exposed, and
consciously or unconsciously influenced by the emotional impact of the
exploitation. In earlier times juries were completely insulated from all outside
contacts. In modern times, the rules have been relaxed to allow jurors to
separate under appropriate admonition not to read news accounts of the case on
trial or to discuss the case with anyone, or to allow anyone to discuss it with
them. Jurors have been trusted to observe these admonitions, and our faith has,
in the main, been vindicated. We have indulged in the assumption that mere
opportunity for prejudice or even corruption is no proof of it. See Holt v.
United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021.

23

The necessity for conducting trials in an environment where separated jurors

are almost unavoidably exposed to news comment, has led some courts to
accept the 'standard judicial hypothesis that cautioning instructions are

effective' to eradicate the contaminating effect of inflammatory exposures,

unless there is a 'clear and present danger' of the deprivation of a
constitutionally protected fair trial. See Chief Judge Clark in United States v.
Leviton, 2 Cir., 193 F.2d 848, 857. See also Reining v. United States, 5 Cir.,
167 F.2d 362; United States v. Allied Stevedoring Corp., 2 Cir., 241 F.2d 925;
United States v. Postma, 2 Cir., 242 F.2d 488; Henslee v. United States, 5 Cir.,
246 F.2d 190. Many cases on the subject are collected in an Annotation, 31
A.L.R.2d 417.
24

I agree with Judge Frank (dissenting in the Leviton case, 193 F.2d at page 865)
that 'trial by newspaper', even in the very midst of irresponsible news comment,
is neither inevitable nor tolerable. Without assaying to curb extraneous
comment on trials, it is my belief that jurors, while engaged in the trial of a
case, can be appropriately and conveniently insulated from exposure to public
emotionalism, which often attends criminal cases. Emphatic admonitions by the
trial court at the very outset of the trial against the reading of newspapers or
listening to news media, would go a long way toward safeguarding the trial
against insidious and inflammatory matters. The trial court is, to be sure, the
first and best judge of what is calculated to contaminate the jury or may have
the ineradicable effect of doing so. Appellate courts should interfere only when
matters of judicial policy are involved. In my opinion, matters of policy
affecting the administration of criminal justice are involved here and it is my
duty to speak.

25

Of course intrusions may be only trivial or innocuous and certainly curable by

appropriate admonitions. It is important that mistrials or new trials not be
granted for 'trifling reasons'. See Southern Pacific Co. v. klinge, supra. They
may not be calculated to or have the effect of unduly influencing a juror, either
consciously or unconsciously. But the newspaper article to which some of the
jurors in this case were exposed stated not only the developments in the
courtroom, it went on to state categorically that the accused had a 'record of
two previous felony convictions'; that while serving a forgery sentence in a
state penitentiary, he had testified before a state legislative committee then
studying new state drug laws; that he had told the committee of having
practiced medicine with a twenty-five dollar diploma received through the
mails; and had written and passed prescriptions for dangerous drugs. The other
newspaper article to which some of the jurors were exposed related that the
accused had been arrested with his wife; that she had been convicted on drug
charges in the same court and sentenced to jail.

26

Since the accused elected to stand mute and did not offer his character as a
defense, these statements were inadmissible and manifestly prejudicial. See

Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168. Indeed,
no attempt was made to inject these matters into the trial of the case, and the
court would have doubtless dealt firmly with any attempt to do so. Recognizing
the gravity of the matter, the court conducted a searching inquiry concerning
the jurors' exposure to the newspaper articles and elicited from each of the
jurors who had read them a vow that he or she was uninfluenced thereby, and
would try the case as if they had not read them. The inquiry was as careful and
the responses as positive as one could expect, and if we are to take the jurors'
conscientious word for their state of mind, we must assume that all extraneous
knowledge of the accused's prior and damaging record was completely
banished from the jurors' minds and did not influence their consideration of his
only defense of entrapment. But, the 'naive assumption that prejudicial effects
can be overcome by instructions to the jury * * * all practicing lawyers know to
be unmitigated fiction.' See Jackson concurring in Krulewitch v. United States,
336 U.S. 440, 453, 69 S.Ct. 716, 723, 93 L.Ed. 790.
27

Without questioning the thoroughness of the judicial inquiry, or impugning the

conscientiousness of the jurors' avowals, it is my firm conviction that no juror
could try this accused on the issue of whether he was in fact induced by the
government to commit the act for which he was on trial as if they did not know
that his past record and moral traits inclined him toward it. I cannot believe that
the untrained human mind is capable of any such nice discriminations. It is too
much to expect a juror, sensing the impropriety of having read an extraneous
and prejudicial account of a case he is then trying, to admit any prejudicial
effect.

28

If the jury is yet to be the factual judge of the defense of entrapment and the
predisposition of the accused rather than the conduct of the government is to be
the legal test, i.e. see Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2
L.Ed.2d 848; and Masciale v. United States, 356 U.S. 386, 78 S.Ct. 827, 2
L.Ed.2d 859, prior record and moral traits become of primary importance in the
determination of that vital issue. For in cases like this where entrapment is the
only defense, prior convictions of the same offense are to be sure the best
evidence to show essential predisposition. This brings us face to face with Mr.
Justice Frankfurter's warning of the 'Danger of prejudice in such a situation'.
For, said he, 'The defendant must either forego the claim of entrapment or run
the substantial risk that, in spite of instructions, the jury will allow a criminal
record or bad reputation to weigh in its determination of guilt of the specific
offense of which he stands charged.' Concurring, Sherman v. United States,
supra, 356 U.S. at page 382, 78 S.Ct. at page 826. The only escape from the
dilemma is to commit the issue of entrapment to the court. But, so long as it
remains a jury question, record and reputation to prove predisposition or lack of

it must be relevant, competent and admissible. Harbold v. United States, 10

Cir., 255 F.2d 202. If so, such evidence ought certainly to be produced in open
court with the traditional right of confrontation and cross examination. If they
are to be excluded, as in this case, they ought not be permitted to seep into the
jury room to poison the minds of the jurors on the vital issue which divides
guilt and innocence. In sum, it is my view that if the extraneous matter
disclosed in the newspapers articles is forbidden, it is ineradicably prejudicial.
If it is competent and admissible, it ought to be imparted to the jury in open
court. In any event, I would reverse for a new trial.

No-Doz is a patented product sold freely over the counter

21 U.S.C.A. 353(b)(1). 'A drug intended for use by man which-'(B) because of its toxicity or other potentiality for harmful effect, or the
method of its use, or the collateral measures necessary to its use, is not safe for
use except under the supervision of a practitioner licensed by law to administer
such drug * * *
'(C) * * * shall be dispensed only (i) upon a written prescription of a
practitioner licensed by law to administer such drug. * * * The act of dispensing
a drug contrary to the provisions of this paragraph shall be deemed an act which
results in the drug being misbranded while held for sale.'

21 U.S.C.A. 331. 'The following acts and the causing thereof are hereby
prohibited:
'(k) The alteration, mutilation, destruction, obliteration, or removal of the whole
or any part of the labeling of, or the doing of any other act with respect to, a
food, drug, device, or cosmetic, if such act is done while such article is held for
sale (whether or not the first sale) after shipment in interstate commerce and
results in such article being adulterated or misbranded.'

Typical of the responses received by the court is that of the juror Bottinelli
'The Court: Morning, Mrs. Bottinelli, sit down right there. What I am inquiring
about, Mrs. Bottinelli, are a couple of newspaper articles about this case, one of
them appeared in the Post last night and one of them in the News this morning.
Did you read either one of these pieces?
'Mrs. Bottinelli: Yes, I did, I read the one in the News.

'The Court: The one in the News this morning?

'Mrs. Bottinelli: Yes.
'The Court: Did anything you read in that item prejudice you in any way against
the defendant?
'Mrs. Bottinelli: No, I would try to be as fair as I could.
'The Court: Would what you read influence you in any way in reaching a
verdict on the case?
'Mrs. Bottinelli: No.
'The Court: You could lay that out of your mind entirely and decide the case on
the evidence you hear from the witness stand?
'Mrs. Bottinelli: The evidence I've got to understand is whether he sold the
medicine, so that would have nothing to do from this.
'The Court: You would decide that from the evidence in the courtroom?
'Mrs. Bottinelli: Yes, and not the rest.
'The Court: You wouldn't have in mind this article you read in the newspaper
whether he is guilty or innocent, is that right?
'Mrs. Bottinelli: That's right.
'The Court: Do any of you want to ask any further questions? All right, Mr.
Francis.
'Mr. Francis: I realize you want to be as fair as possible and certainly we would
not have this jury if we didn't think every member was fair. Do you feel in your
heart and without restraint that if you were in the defendant's position, that is to
say, sitting where Mr. Marshall is sitting, and your own mind is as it is now as
a result of having read the paper, that you could still feel that you could
absolutely, impartially listen to the case and bring in a verdict?
'Mrs. Bottinelli: Yes, I think I could.
'Mr. Francis: Fine, thank you very much.
'The Court: Thank you very much.'