Masciale v. United States, 356 U.S. 386 (1958). · Go Syfert
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Masciale v. United States, 356 U.S. 386 (1958). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case, last quoted 1983 · …engaged in a campaign to persuade him to sell narcotics by using the lure of easy income ✓
cited 2× by 1 distinct case, last quoted 1960 · …whether there was an illegal entrapment in a bribery prosecution is ordinarily a matter which should be submitted to the jury under proper instructions, particularly where the testimony of the accused tends to support the defense, or the evidence with respect to entrapment is co… ⚠ not in text
612 citation events (21 in the last 25 years) across 36 distinct courts.
Strongest positive: United States v. Jeremiah Ybarra (ca5, 2018-09-26) · Strongest negative: United States v. David Post Anderton (ca5, 1980-11-03)
Treatment trajectory · 1958 → 2026 · click a year to view as-of
1958 1992 2026
Top citers, strongest first. 45 distinct citers. How cited ↗
examined Cited "but see" United States v. David Post Anderton (3×) also: Cited as authority (rule)
5th Cir. · 1980 · signal: but cf. · confidence high
But cf. Masciale, 356 U.S. at 388, 78 S.Ct. at 828 , 2 L.Ed. at 861 n.5 (declining to consider a similar question), and the dissent of Justice Frankfurter therein. 4 .
examined Cited as authority (verbatim quote) United States v. Jeremiah Ybarra
5th Cir. · 2018 · quote attribution · 1 verbatim quote · confidence high
generally speaking, a defendant's testimony cannot by itself establish entrapment as a matter of law because, absent unusual circumstances, the jury is almost always entitled to disbelieve that testimony.
discussed Cited as authority (rule) Hernandez, Alexander (2×) also: Cited "see, e.g."
Tex. Crim. App. · 2005 · confidence medium
Id. at 388 (jury was entitled to disbelieve defendant's uncontradicted testimony as to his persuasion by informant who did not testify; thus jury could reject entrapment defense even though raised by defendant's testimony). 25.
examined Cited as authority (rule) United States v. Terry Lee Brooks (3×) also: Cited "see"
8th Cir. · 2000 · confidence medium
It cautions us against disturbing such a finding, citing Masciale v. United States, 356 U.S. 386, 388 (1958), for the proposition that a defendant's own unrebutted testimony4 is insufficient to establish entrapment as a matter of law.
discussed Cited as authority (rule) United States v. Narcisso Yanez
7th Cir. · 1995 · confidence medium
United States v. Mora, 994 F.2d 1129, 1137 (5th Cir.) (citing Masciale v. United States, 356 U.S. 386, 388 (1958) (holding that jury could reject entrapment defense by disbelieving defendant's uncontroverted testimony concerning persuasion by informant)), cert. denied, 114 S.Ct. 417 (1993).
discussed Cited as authority (rule) U.S. v. Mora
5th Cir. · 1993 · confidence medium
Masciale v. United States, 78 S.Ct. 827, 829 (1958) (jury was entitled to disbelieve defendant's uncontradicted testimony as to his persuasion by informant who did not testify; hence jury could reject entrapment defense even though raised by defendant's testimony).
cited Cited as authority (rule) Batson v. State
Alaska · 1977 · confidence medium
This procedure was suggested by Justice Frankfurter in Masciale v. United States, 356 U.S. 386, 389 , 78 S.Ct. 827, 829 , 2 L.Ed.2d 859, 861 (1958) (dissenting opinion). 9 .
discussed Cited as authority (rule) Evans v. State
Alaska · 1976 · confidence medium
This court in Grossman v. State, 457 P.2d 226, 230 (Alaska 1969), held that the court rather than the jury should decide the issue of entrapment, for the policy reasons expressed by Mr. Justice Frankfurter in his concurrences in Sherman v. United States, 356 U.S. 369, 378 , 78 S.Ct. 819, 823 , 2 L.Ed. 2d 848, 855 (1958), and Masciale v. United States, 356 U.S. 386, 389 , 78 S.Ct. 827, 829 , 2 L.Ed.2d 859, 861 (1958).
discussed Cited as authority (rule) UNITED STATES of America, Appellee, v. Jerome DEUTSCH, Appellant
2d Cir. · 1972 · confidence medium
In Misciale v. United States, 356 U.S. 386, 388 (1958), the Supreme Court held that a jury was entitled to disbelieve the defendant’s testimony that an informant trapped him into meeting with an undercover agent, notwithstanding the fact that the defendant’s testimony was uncontradicted because of the informant’s failure to testify.
cited Cited as authority (rule) People v. Gonzales
Ill. App. Ct. · 1970 · confidence medium
United States v. Armstrong, supra, at page 1017; Masciale v. United States, 356 US 386, 388 (1958); United States v. Thomas, 351 F2d 538, 539 (CA 2nd 1965).
discussed Cited as authority (rule) United States v. Walter Riley (2×)
2d Cir. · 1966 · confidence medium
Sorrells v. United States, 287 U.S. 435, 452, 457 , 53 S.Ct. 210 , 77 L.Ed. 413 (1932); Sherman v. United States, 356 U.S. 369, 376-378, 385 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958); Masciale v. United States, 356 U.S. 386, 388, 389 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958). 1 The view of the Sorrells majority followed logically from its concept that a case of entrapment was implicitly excepted from the statutory definition of the crime; the minority's view flowed with equal logic from its concept that the defense was for the protection of the court's 'own functions and the preservation of the purity…
discussed Cited as authority (rule) United States v. Clarke
E.D. Pa. · 1963 · confidence medium
Further support for this is found in United States v. Orza, 320 F.2d 574 , at pages 575, 576 (2 Cir. 1963), where in deciding that the issue of entrapment was properly submitted to a jury, the Court stated: “This question was for the jury, see Masciale v. United States, supra, 356 U.S. at p. 388, 78 S. Ct. at pp. 828-829, 2 L.Ed.2d 859 , which could properly have found against the defendant on the basis of the size of the sale, the defendant’s willingness to make it, his representations as to the quality of the narcotics, the ease with which he was able to make almost immediate delivery, a…
examined Cited as authority (rule) United States v. Raul Manfrediz Orza (4×) also: Cited "see, e.g."
2d Cir. · 1963 · confidence medium
This question was for the jury, see Masciale v. United States, supra, 356 U.S. at p. 388, 78 S. Ct. at pp. 828-829, 2 L.Ed.2d 859 , which could properly have found against the defendant on the basis of the size of the sale, the defendant’s willingness to make it, his representations as to the quality *576 of the narcotics, the ease with which he was able to make almost immediate delivery, and his stated willingness to make future sales.
discussed Cited as authority (rule) United States v. Michael Larry Schachel
2d Cir. · 1960 · confidence medium
The question was reconsidered and Sorrells adhered to in Sherman v. United States, 1958, 356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 , and Masciale v. United States, 1958, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 .
discussed Cited as authority (rule) Joe Bruno v. United States
9th Cir. · 1958 · confidence medium
The Supreme Court has considered the defense of entrapment in two recent cases, Sherman v. United States, 1958, 356 U.S. 369 , 78 S.Ct. 819, 821 , 2 L.Ed.2d 848 , and Masciale v. United States, 1958, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 .
discussed Cited "see" United States v. Terry Lee Brooks (2×)
8th Cir. · 2000 · signal: see · confidence high
See id.
examined Cited "see" United States v. David Anderton (3×)
5th Cir. · 1982 · signal: see · confidence high
See Masciale v. United States, 356 U.S. 386, 388 , 78 S.Ct. 827, 828 , 2 L.Ed.2d 859, 861 (1958), where the Supreme Court held that entrapment was a matter for the jury, not the trial court.
examined Cited "see" State v. Olkon (6×)
Minn. · 1980 · signal: see · confidence high
See generally Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958); State v. Poague, 245 Minn. 438 , 72 N.W.2d 620 (1955).
examined Cited "see" Coffey v. State (6×)
Alaska · 1978 · signal: see · confidence high
See Masciale v. United States, 356 U.S. 386, 388 , 78 S.Ct. 827 , 2 L.Ed.2d 859, 861 (1958) (jury may disbelieve uncontradicted defendant testimony on entrapment).
examined Cited "see" United States v. Gilmore (3×)
W.D.N.Y. · 1977 · signal: see · confidence high
See Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958); United States v. Gurule, 522 F.2d 20, 24 (10th Cir.), cert. denied, 425 U.S. 976 , 96 S.Ct. 2177 , 48 L.Ed.2d 800 (1976); United States v. Jett, 491 F.2d 1078, 1080 (1st Cir. 1974); United States v. Pugliese, 346 F.2d 861, 863 (2d Cir. 1965).
examined Cited "see" State v. Mojica (3×)
Idaho · 1973 · signal: see · confidence high
See, Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958), reh. den. 357 U.S. 933 , 78 S.Ct. 1367 , 2 L.
examined Cited "see" United States v. Raymond Brown and Steven Liley (6×)
8th Cir. · 1972 · signal: see · confidence high
See, Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958); Cf. Sherman v. United States, 356 U.S. 369 , 78 S.Ct. 819 , 2 L.Ed.2d 848 (1958).
examined Cited "see" United States v. Kenneth Algene Ford (3×)
5th Cir. · 1971 · signal: see · confidence high
See Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.
examined Cited "see" Bennie Ray Smith v. United States (3×)
9th Cir. · 1971 · signal: see · confidence high
See Masciale v. United States, 1958, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 ; United States v. Padilla, 9 Cir. 1970, 433 F.2d 962 .
examined Cited "see" United States v. Curry (3×)
N.D. Ill. · 1968 · signal: see · confidence high
See Masciale v. United States, 356 U.S. 386, 388 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958).
examined Cited "see" Vivian Brown v. United States (3×)
9th Cir. · 1967 · signal: see · confidence high
See Masciale v. United States, 1958, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 .
examined Cited "see" Vivian Brown v. United States (3×)
9th Cir. · 1967 · signal: see · confidence high
See Masciale v. United States, 1958, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 .
examined Cited "see" James J. Rush v. United States of America, Alfred J. Dennis v. United States (3×)
8th Cir. · 1967 · signal: see · confidence high
See Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 , and also Rogers v. United States, supra. Judgment affirmed in accordance with this opinion.
examined Cited "see" Victor A. Enciso v. United States (3×)
9th Cir. · 1967 · signal: see · confidence high
See Masciale v. United States, 1958, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 .
examined Cited "see" Calvin Rogers v. United States (6×)
8th Cir. · 1966 · signal: see · confidence high
See, Masciale v. United States, 1958, 356 U.S. 386, 388 , 78 S.Ct. 827 , 2 L.Ed.2d 859, 861 , rehearing denied, 357 U.S. 933 , 78 S.Ct. 1367 , 2 L.Ed.2d 1375 .
examined Cited "see" United States v. Dillard Morrison (3×)
2d Cir. · 1965 · signal: see · confidence high
See Masciale v. United States, 356 U.S. 386, 388 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958); United States v. Pugliese, supra at 861 of 346 F.2d.
examined Cited "see" United States v. Louis Pugliese, A/K/A \Feety (3×)
unknown court · 1965 · signal: see · confidence high
See Masciale v. United States, 356 U.S. 386, 388 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958).
discussed Cited "see" Richard Sylvia v. United States (2×)
1st Cir. · 1963 · signal: see · confidence high
See Masciale v. United States, 1958, 356 U.S. 386, 388 , 78 S.Ct. 827 , 2 *147 L.Ed.2d 859; Sandoval v. United States, 10 Cir., 1960, 285 F.2d 605 .
examined Cited "see" Louis P. Hattem v. United States (3×)
9th Cir. · 1960 · signal: see · confidence high
See Mr. Justice Frankfurter’s dissenting opinion in Masciale v. United States, 356 U.S. 386 , at page 389, 78 S.Ct. 827 , at page 829, 2 L.Ed.2d 859 .
examined Cited "see" James H. Childs v. United States (3×)
D.C. Cir. · 1959 · signal: see · confidence high
See Masciale v. United States, 1958, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 ; Hunt v. United States, 1958, 103 U.S.App.D.C. 309 , 258 F.2d 161 ; United States v. Abdallah, 2 Cir., 1945, 149 F.2d 219, 222, note 1 .
examined Cited "see, e.g." Soriano v. State (3×)
Okla. Crim. App. · 2011 · signal: see also · confidence low
See also Masciale v. United States, 356 U.S. 386, 388 , 78 S.Ct. 827, 828 , 2 L.Ed.2d 859 (1958) (rejecting entrapment appeal where jury rejected defense and evidence was sufficient for jury to find defendant "was ready and willing to search out a source of narcotics and to bring about a sale"). [21] Compare Russell, 411 U.S. 423, 428-36 , 93 S.Ct. 1637, 1641-4 (maintaining primacy of "predisposition" as central issue in entrapment defense), with id. at 436-39 , 93 S.Ct. at 1645-46 (Douglas, J., dissenting, joined by Justice Brennan) (preferring approach of concurring Justices Roberts and Fran…
examined Cited "see, e.g." Hernandez v. State (3×)
Tex. Crim. App. · 2005 · signal: see also · confidence low
United States v. Rodriguez, 43 F.3d 117, 127 (5th Cir.1995) (internal quotations omitted); see also United States v. Mora, 994 F.2d 1129, 1137-38 (5th Cir.1993) (although government did not introduce any evidence directly contradicting defendants’ stories about *500 undercover agent’s threats, there was evidence that cast doubt upon their credibility). 23 . 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958). 24 .
examined Cited "see, e.g." United States v. Peter Guevara (6×)
7th Cir. · 1979 · signal: see, e.g. · confidence low
See, e. g., Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958); United States v. Garcia, 562 F.2d 411 (7th Cir. 1977).
examined Cited "see, e.g." Richert v. State (3×)
Fla. Dist. Ct. App. · 1976 · signal: see also · confidence low
See also, Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958).
examined Cited "see, e.g." United States v. Francis Gurule A/K/A Frank (3×)
10th Cir. · 1975 · signal: see also · confidence low
See also, Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958).
examined Cited "see, e.g." United States v. Dale Ray Haley, United States of America v. Steven Paul Liley, United States of America v. Charles Lee Miller, United States of America v. Donald Lee Olenchak, United States of America v. Roger Lee Sheehan (3×)
8th Cir. · 1972 · signal: see also · confidence low
See also Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958).
examined Cited "see, e.g." United States v. Haley (3×)
8th Cir. · 1971 · signal: see also · confidence low
See also Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958).
examined Cited "see, e.g." United States v. Charles Taylor Thompson, William Edward Tanner and James Benjamin Campbell (3×)
6th Cir. · 1966 · signal: see also · confidence low
See also Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 , rehearing denied, 357 U.S. 933 , 78 S.Ct. 1367 , 2 L.Ed.2d 1375 ; Lopez v. United States, 373 U.S. 427 , 83 S.Ct. 1381 , 10 L.Ed.2d 462 , rehearing denied, 375 U.S. 870 , 84 S.Ct. 26 , 11 L.Ed.2d 99 .
examined Cited "see, e.g." United States v. Robert Jones (3×)
2d Cir. · 1966 · signal: compare · confidence low
Compare Masciale v. United States, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 (1958).
examined Cited "see, e.g." Guillermo Serna Jasso v. United States (3×)
5th Cir. · 1961 · signal: see also · confidence low
See also the case of Masciale v. United States, 1958, 356 U.S. 386 , 78 S.Ct. 827 , 2 L.Ed.2d 859 .
Retrieving the full opinion text from the archive…
Masciale
v.
United States
84.
Supreme Court of the United States.
Jun 23, 1958.
356 U.S. 386
1958 U.S. LEXIS 1025
Merrell E. Clark, Jr. argued the cause and filed a brief for petitioner., James W. Knapp argued the cause for the United States. On the brief were Solicitor General Rankin, Warren Olney, III, then Assistant Attorney General, Beatrice Rosenberg and Robert G. Maysack.
Warren, Frankfurter, Douglas, Harlan, Brennan.
Cited by 192 opinions  |  Published

Lead Opinion

Mr. Chief Justice Warren

delivered the opinion of the Court.

This case presents the same issue as Sherman v. United States, ante, p. 369, decided this day: Should petitioner’s conviction be set aside on the ground that as a matter of law the defense of entrapment was established? Cf. Sorrells v. United States, 287 U. S. 435. Petitioner was convicted on three counts, two of which charged him with the illegal sale of narcotics and one with conspiracy to make a sale.[1] The issue of entrapment went to the jury,[2] [*387] and conviction followed. The Court of Appeals for the Second Circuit affirmed. 236 F. 2d 601. We granted "certiorari. 352 U. S. 1000.

The evidence discloses the following events. On January 14, 1954, petitioner was introduced to government agent Marshall by a government informer, Kowel. Although petitioner had known Kowel for approximately four years, he was unaware of Kowel’s undercover activities. Marshall was introduced as a big narcotics buyer. Both Marshall and petitioner testified concerning the ensuing conversation. Marshall testified that he immediately made it clear that he wanted to talk about buying large quantities of high-grade narcotics and that if petitioner were not interested, the conversation would end at once. Instead of leaving, petitioner questioned Marshall on his knowledge of the narcotics traffic and then boasted that while he was primarily a gambler, “he knew someone whom he considered high up in the narcotics traffic to whom he would introduce me [Marshall] and that I was able to get — and I can quote this — ‘88 per cent pure heroin’ from this source.” Marshall also stated that petitioner gave him a telephone number where he could be reached. In his testimony petitioner admitted that he was a gambler and had told Marshall that through his gambling contacts he knew about the narcotics traffic. He denied that he had then known any available source of narcotics or that he said he could obtain narcotics for Marshall at that time. Petitioner explained that he met Marshall only to help Kowel impress Marshall. Petitioner also said that it was Marshall who gave him the telephone number. It is noteworthy that nowhere in his testimony did petitioner state that during the conversation either Marshall or Kowel tried to persuade him to enter the narcotics traffic. In the six weeks following the conversation just related Marshall and petitioner met or spoke with each other at least ten times; petitioner kept[*388] telling Marshall that he was trying to make his contact but was having trouble doing so. Finally, on March 1, 1954, petitioner introduced Marshall to Seifert, who sold some heroin to Marshall on the next day. Petitioner even loaned his sister’s car to Seifert in order to get the narcotics. It was this sale for which petitioner was convicted.

In this case entrapment could have occurred in only one of two ways. Either Marshall induced petitioner, or Kowel did. As for Marshall, petitioner has conceded here that the jury could have found that when petitioner met Marshall he was ready and willing to search out a source of narcotics and to bring about a sale.[3] As for Kowel, petitioner testified that the informer engaged in a campaign to persuade him to sell narcotics by using the lure of easy income. Petitioner argues that this undisputed testimony[4] explained why he was willing to deal with Marshall and so established entrapment as a matter of law. However, his testimony alone could not have this effect. While petitioner presented enough evidence for the jury to consider, they were entitled to disbelieve him in regard to Kowel and so find for the Government on the issue of guilt. Therefore, the trial court properly submitted the case to the jury.[5]

The judgment of the Court of Appeals is

Affirmed.

1

See 26 U. S. C. §§2553 (a), 2554 (a); 21 U. S. C. § 174, and 18 U. S. G. § 2.

2

The charge to the jury was not in issue here.

3

Well might petitioner concede this, for despite petitioner’s version of the meeting and his explanation for being there, the jury could have believed Marshall and have inferred from his narration that petitioner needed no persuasion to seek a narcotics buyer.

4

We conclude from the argument that neither party even attempted to subpoena Kowel.

5

For the reasons stated in Sherman v. United States, ante, p. 369, we decline to consider the contention that this case should be reversed and remanded to the District Court for a determination of the issue[*389] of entrapment by the trial judge. This issue was never raised by the parties. The question of entrapment was submitted to the jury, and the charge to the jury was not put in issue by petitioner either here or in the Court of Appeals.

Dissent

[*389] Mr. Justice Frankfurter,

whom

Mr. Justice Douglas, Mr. Justice Harlan, and Mr. Justice Brennan join, dissenting.

The trial court in this case, according to the views expressed in my concurring opinion in Sherman v. United States, ante, p. 378, should itself have ruled on the issue of entrapment and not left it to determination by the jury. On a mere reading of the cold record the evidence for sustaining such a claim seems rather thin. But the judge who heard and saw the witnesses might give different weight to the evidence than the printed record reveals. Accordingly, I would remand the case to the District Court for determination of the issue of entrapment by the trial judge. If he should conclude, as the jury was allowed to conclude, that the claim of entrapment was not sustained, the conviction would stand. If he reached a different result, the indictment should be dismissed. This seems, on my view of the law, a better disposition than for this Court to decide that no harm was done in leaving the question to the jury because as a matter of law there was no entrapment.