Sherman v. United States
356 U.S. 369 (1958)
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Rule of Law:
The defense of entrapment is established as a matter of law when undisputed evidence shows that a government agent induced an individual to commit a crime that the individual was not otherwise predisposed to commit.
Facts:
- In late August 1951, a government informer, Kalchinian, met Sherman at a doctor's office where both were apparently being treated for narcotics addiction.
- After several accidental meetings and conversations about their shared struggles with addiction, Kalchinian asked Sherman to find a source of narcotics for him, claiming he was suffering and not responding to treatment.
- Sherman initially refused and tried to avoid the subject.
- Kalchinian persisted with multiple requests, appealing to Sherman's sympathy based on his own feigned suffering.
- Sherman eventually acquiesced and on several occasions obtained narcotics, which he shared with Kalchinian.
- For these transactions, Sherman only charged Kalchinian for the cost of his share plus expenses; there was no significant evidence that Sherman made a profit.
- After initiating this course of conduct, Kalchinian informed Bureau of Narcotics agents about Sherman.
- Federal agents then observed Sherman sell narcotics to Kalchinian on three occasions in exchange for government-supplied money.
Procedural Posture:
- Sherman was indicted in U.S. District Court for three illegal sales of narcotics.
- His first conviction was reversed on appeal by the U.S. Court of Appeals for the Second Circuit due to improper jury instructions on the issue of entrapment.
- Upon retrial in the district court, Sherman was again convicted by a jury.
- Sherman (appellant) appealed to the U.S. Court of Appeals for the Second Circuit, which affirmed the conviction.
- The U.S. Supreme Court granted certiorari to review the appellate court's decision.
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Issue:
Does the defense of entrapment apply as a matter of law when a government informer repeatedly requests a recovering narcotics addict to procure drugs, appealing to sympathy from their shared addiction, and there is insufficient evidence the individual was predisposed to sell narcotics?
Opinions:
Majority - Mr. Chief Justice Warren
Yes. Entrapment is established as a matter of law where the criminal design originates with government officials who implant in the mind of an innocent person the disposition to commit the offense. The undisputed testimony of the government's own informer, Kalchinian, demonstrated that he induced Sherman, who was attempting to overcome his addiction and was hesitant to re-engage with narcotics. Kalchinian's persistent requests, coupled with appeals to sympathy, overcame Sherman's reluctance. The government failed to prove Sherman's predisposition; his two prior narcotics convictions, from five and nine years earlier, were insufficient to show he was ready and willing to sell narcotics at the time, particularly since he was undergoing treatment. The government cannot use an informer to prey on the weaknesses of an individual to 'manufacture crime' and then disown the informer's actions.
Concurring - Mr. Justice Frankfurter
Yes. The conviction should be reversed because the government's conduct was unacceptable, not because of the defendant's character or predisposition. The entrapment defense should be based on an objective test that focuses on whether police conduct falls below the standards for proper use of governmental power. The majority's 'subjective' test, which inquires into the defendant's predisposition, is flawed because it allows a defendant's past criminal record to prejudice the jury. The proper inquiry is whether the police conduct was likely to induce a crime in a person who would normally avoid it. Here, the informer's repeated solicitations and appeals to sympathy were reprehensible police tactics that the courts, in their supervisory capacity, should not countenance, regardless of Sherman's past.
Analysis:
This case reaffirmed the 'subjective' test for entrapment from Sorrells v. United States, making the defendant's predisposition the key element of the defense. The decision clarifies that overwhelming evidence of government inducement, coupled with weak evidence of predisposition, can establish entrapment as a matter of law, requiring dismissal of the charges. Justice Frankfurter's influential concurrence champions the alternative 'objective' test, focusing on police conduct, which highlights the major doctrinal split on this issue that persists today, with most states following the subjective test but a minority adopting the objective approach.
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