Sherman v. United States

The Facts

Defendant charged with the sale of narcotics.  A government informant and defendant initially met in a hospital where they both were being treated for drug addiction.  Informant eventually asked defendant where he could get drugs because they both were experiencing difficulty in overcoming their addictions.  Defendant tried to avoid the issue.  Informant acted as though he was suffering and continuously pressed the issue.  Finally defendant gave in.  Defendant got drugs from his own supplier and gave them to the informant.

Procedural History

Convicted at trial. Reversed due to an improper instruction on entrapment at trial.  Defendant’s defense was entrapment where a federal agent “induced him to take part in illegal transactions when otherwise he would not have done so.”


“Entrapment occurs only when the criminal conduct was the product of the creative activity of law enforcement officials.”

The Issue

Whether the conviction should be set aside on the basis of entrapment.

The Holding

Yes, reversed and remanded. “The function of law enforcement is the prevention of crime and the apprehension of criminals.  Manifestly, that function does not include the manufacturing of crime.”  However, a separate situation occurs where the police officer implants in the mind of citizens the act of committing the crime.  “Congress could not have intended that its statutes were to be enforced by tempting innocent person into violations.”  However, where government officials simply “afford” opportunities to conduct crime is not entrapment.

The informant clearly induced the crime in this case.  The informant attempted multiple times to create the crime after multiple rejections and did so in the context of a recovering drug addict, whose ability to refuse was comparatively reduced.  He “not only procured a source of narcotics but apparently also induced the defendant to return to the habit.”


Defendant is no less guilty because he has been compelled by law enforcement.  The elements of the crime here are satisfied as they are in most/all entrapment cases.  “The courts refuse to convict an entrapped defendant, not because his conduct falls outside the proscription of the statute, but because, even if his guilt be admitted, the methods employed on behalf of the Government to bring about conviction cannot be countenanced”  The majority opinion is in error because they inject an idea that congress could not have intended the prosecution of the crime under the circumstances of entrapment.  Instead of looking at congressional intent as to the particular crime, they should establish a set of standards which exculpates for all crimes on the basis of entrapment.  Entrapment is not novel to any particular crime.  The question should always be “to which the court must direct itself is whether the police conduct revealed in the particular case falls below standards, to which common feelings respond, for the proper use of governmental power.”  The court should use this as the basis rather than asking where the intent to commit the crime originated.

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