290 F.2d 897 (9th Cir. 1961), 17032, Vasquez v. United States

Docket Nº:17032.
Citation:290 F.2d 897
Party Name:Joe VASQUEZ and Joe Garcia Verduzco, Appellants, v. UNITED STATES of America, Appellee.
Case Date:May 15, 1961
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 897

290 F.2d 897 (9th Cir. 1961)

Joe VASQUEZ and Joe Garcia Verduzco, Appellants,


UNITED STATES of America, Appellee.

No. 17032.

United States Court of Appeals, Ninth Circuit.

May 15, 1961

Page 898

Thomas F. Doyle, San Francisco, Cal., for appellants.

Laurence E. Dayton, U.S. Atty., and John Kaplan, Asst. U.S. Atty., San Francisco, Cal., for appellee.

Before HAMLEY, HAMLIN and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge.

Joe Vasquez and Joe Garcia Verduzco were jointly tried and convicted under a one-count indictment charging the sale and facilitation of the sale and transportation of nine grains of heroin in violation of 21 U.S.C.A. § 174. Appealing to this court, they argue that the trial court erred in denying their motion for acquittal and in failing to give a requested instruction.

The evidence shows that William Wong, an agent of the Federal Bureau of Narcotics, approached one Nanette Brugh and asked her to obtain some narcotics for him. He gave her for this purpose four hundred dollars in government funds. Miss Brugh contacted appellants and made arrangements for them to purchase some heroin for her. She gave them the four hundred dollars to use in purchasing the narcotics and told them she would give them some of the heroin in exchange for their assistance.

Appellants obtained the heroin and took it to a motel room which they and Miss Brugh had rented. She then made arrangements to meet Wong and one Frank Gugino who turned out to be a special employee of the Bureau. Appellants drove her to the rendezvous. Miss Brugh had the narcotics with her at that time but concealed them in a car lot before she met the agents. She then met Wong and Gugino and took them to the car lot where she picked up the package of narcotics and gave it to agents. There is no evidence as to where appellants obtained the narcotics.

Arguing from these facts that they were purchasers and not sellers, appellants contend that they could not be convicted of the sale or of facilitating the sale and transportation of the heroin.

United States v. Prince, 3 Cir., 264 F.2d 850, is cited by appellants in support of this position. In Prince it was held that a defendant who acted in the same capacity as these appellants could not be found guilty of selling and facilitating the concealment and sale of narcotic drugs in violation of 21 U.S.C.A. § 174.

The instant indictment charged that appellants 'did fraudulently and knowingly sell and facilitate the sale and...

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