Earl D. Greene v. United States of America, John Becker v. United States of America, Mike A. Thomas v. United States

Mike A.. Thomas, John Becker and Earl D. Greene, were jointly indicted, tried and convicted on charges involving possession of unregistered distilling apparatus, sale without stamp of distilled *784 spirits, and conspiracy. 1 The three took separate appeals which we consolidated for argument and disposition. While these appeals were pending, defendant ■Greene was murdered. As to his appeal it is, therefore appropriate to remand with directions to vacate the judgment and dismiss the indictment. We reverse the convictions of Thomas and Becker for the reasons stated below.

In September, 1962, Jack Courtney, a special investigator with the Alcohol and Tobacco Tax Division of the United States Treasury Department, assumed the role of an undercover agent in an effort to penetrate what he believed to be an organization which was selling bootleg whiskey. Posing as a gangster or member of the “syndicate,” he was, on September 5, 1962, introduced to defendants Thomas and Becker by Gerald Brown, an informer for the Oakland Police Department. The events which thereafter unfolded reveal almost unbelievable nai'veté on the part of defendants in accepting Courtney as a representative of the…

(dissenting) :

L dissent from the judgments in favor of Becker and Thomas.

Were this a case of assistance urged on reluctant suspects who desired to abandon a project, I would regard it as a case of entrapment. As the majority notes, however, the crime was conceived by appellants and they were, throughout, predisposed to commit it. As I read the record, they were more than predisposed; they were eager to make the big time with the assistance of the government agent in meeting their production problems.

The majority concludes that while this is not a case of entrapment the same underlying objections which render entrapment repugnant are operative here. I disagree. Government involvement throughout was in response to the requests and needs of the appellants, and the extent of involvement was fixed by the extent of those requests and needs. The government agent was doing no more than playing his cover role, which, in *788 terms of involvement and the rendering of assistance, was a demanding one.

Entrapment as I view it is repugnant not because the Government has, through successful infiltration of a conspiracy, become an active participant in a criminal enterprise; it is…

454 F.2d 783 Earl D. GREENE, Appellant, v. UNITED STATES of America, Appellee. John BECKER, Appellant, v. UNITED STATES of America, Appellee. Mike A. THOMAS, Appellant, v. UNITED STATES of America, Appellee. Nos. 22104, 22104-A and 22104-B. United States Court of Appeals, Ninth Circuit. Nov. 23, 1971. Rehearing Denied Feb. 3, 1972. Charles O. Morgan, San Francisco, Cal. (argued), for John Becker. Leonard P. Burke (argued), of Scalora & Burke, Sacramento, Cal., for Mike A. Thomas. James Neil, San Jose, Cal. (argued), for Earl D. Greene. Brewster Q. Morgan, Asst. U. S. Atty. (argued), Dwayne Keyes, U. S. Atty., James J. Simonelli, Asst. U. S. Atty., Sacramento, Cal., for appellee. Before HAMLEY, MERRILL and HUFSTEDLER, Circuit Judges. HAMLEY, Circuit Judge: 1 Mike A. Thomas, John Becker and Earl D. Greene, were jointly indicted, tried and convicted on charges involving possession of unregistered distilling apparatus, sale without stamp of distilled spirits, and conspiracy. 1 The three took separate appeals which we consolidated for argument and disposition. While these appeals were pending, defendant Greene was murdered. As to his appeal it is, therefore appropriate to remand…