concurring and dissenting:

I concur in the affirmance of Ferro’s conviction. I dissent from the affirmance of Paduano’s conviction because the majority opinion fails to follow United States v. Demma (9th Cir. en banc 1975) 523 F.2d 981 . In Demma , the codefendants both took the stand and admitted that they had agreed to import heroin and to distribute it to an undercover agent. The district court, relying on the Eastman line of cases, refused to instruct the jury on entrapment because the defendants denied having the intent necessary to commit the crimes with which they were charged. Demma specifically requested an entrapment instruction; Brulay did not do so. The majority in Demma overruled Eastman and its ill assorted progeny and reversed both convictions. Judge Wright, concurring with Judge Wollenberg in this case, is reiterating the views of the dissent in Demma , in which Judge Wright joined. The dissenters in Demma disagreed with the majority that reliance upon the Eastman line of cases was plain error and that retroactivity concepts were irrelevant. 1 The dissenters therefore concluded that Brulay’s conviction should not be reversed because he had not properly preserved the entrapment issue in the district court.

The entrapment instruction in this case was clearly erroneous, 2 and reversal is required by Demma . The majority opinion concludes that reversal was not required because (1) Paduano’s counsel did not specifically except to the instruction as it applied to Counts 1 and 3, (2) he must be deemed to have waived the error as a matter of trial strategy, and (3) the error was harmless under the concurrent sentence rule. The majority’s rationale is contrary to Demma and is unsupported by the record.

Because we are dealing with plain error, reversal is required by Demma even if the record were silent about the entrapment issue. However, the record is not silent. Paduano’s counsel specifically objected to *151 instruction number 18. To be sure, he was specific about the application of the instruction to Count 2, but his argument addressed the whole Eastman concept. Surely no more is necessary to protect the issue for appeal.

Instruction 18 was tantamount to a directed verdict of guilt on all three counts, unless the jury found that the defendant was entrapped. Moreover, the district court did not tell the jury specifically that the Government had the burden of proving nonentrapment beyond a reasonable doubt, once the entrapment issue had emerged. No conceivable trial strategy could lead counsel deliberately to waive the error in instruction 18.

The majority opinion’s trial strategy discussion is explicable only if we assume that the unarticulated premise of the majority is that the vice of the Eastman rule is that the rule compelled the defendant to take the stand and there to admit the elements of the offense. Therefore, the majority reasons, a defendant who voluntarily takes the stand and admits some or all of the elements of the offense waives the Eastman error. (“. . . Paduano was not proceeding under any compulsion from the Eastman rule. Whatever the reason for his strategy, Paduano’s counsel did not tailor the presentation of his case to fit the Eastman rule.”) The premise is based on a serious misreading of Sorrells v. United States (1932) 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 ; Sherman v. United States (1958) 356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 ; United States v. Russell (1973) 411 U.S. 423 , 93 S.Ct. 1637 , 36 L.Ed.2d 366 and upon Demma , which applied all three.

The basic error in the Eastman line of cases was the requirement that a defendant had to admit elements of the offense before he could claim entrapment. The most egregious error in perpetuating the original Eastman error was in those district court cases which held that a defendant had to admit the elements of the crime from the stand to enable him to claim entrapment. 3 That extension of Eastman not only violated the rule of Sorrells, Sherman, and Russell , but also impaired a defendant’s constitutionally secured rights. (See, United States v. Demma, supra, 523 F.2d at 986 .)

The Eastman heresy does not depend upon whether a defendant takes the stand, voluntarily or not. The Eastman defendants voluntarily took the stand and denied that they did the acts. The reasoning of Eastman was that a criminal defendant could not assert inconsistent defenses; therefore, a defendant could not deny that he committed the crime and simultaneously claim that he had been entrapped to commit the crime. As we pointed out in Demma , the rationale of Eastman was mistaken, entirely apart from Sorrells, Sherman and Russell . During Eastman’s reign, defendants could and did concede the acts in a variety of ways such as voluntarily taking the stand and not denying the acts, conceding the acts through stipulation of counsel without taking the stand, or, like Sorrells , by voluntarily taking the stand, admitting the acts and asserting entrapment at the same time. Demma and Brulay both took the stand voluntarily. The error in Demma and the error in Paduano are identical, although they surfaced differently. In both, the district court, relying on the Eastman line of cases, required the defendant to concede the element of the crime as a condition precedent to relying on the entrapment defense. The district court in Demma made evident his ruling by refusing to give the entrapment instruction at all because the defendants refused to admit the crime; the district court in Paduano committed the same error by telling the jury that by raising the entrapment defense, Paduano admitted the crime and the jury must find him guilty, unless it found him entrapped.

Demma cannot be escaped by reference to the concurrent sentence doctrine. The same error was made as to all three counts. The error cannot be deemed harmless. *152 What mistake could be more devastating to a defendant than erroneously directing a verdict of guilt, even if the direction is partially conditional?

I would reverse Paduano’s conviction and remand for a new trial.

. In United States v. Hart (9th Cir. en banc 1976) 546 F.2d 798 , we held specifically that retroactivity concepts were irrelevant and that Demma applied in full force to all cases pending on direct appeal when that case was decided.

. Instruction number 18 was as follows:

. United States v. Hart, supra, and United States v. Stagg (9th Cir. 1976) 540 F.2d 1010 , cited by the majority, are illustrations of this manifest error. Our court never adopted this extension of Eastman.