Marin v. United States, 18573.

• Decision Date: 31 October 1963
• Docket Number: No. 18573.,18573.
• Parties: Anibal MARIN, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

324 F.2d 66 (1963)

Anibal MARIN, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 18573.

United States Court of Appeals Ninth Circuit.

October 31, 1963.

Frank C. Morales, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, and David R. Nissen, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before MERRILL and KOELSCH, Circuit Judges, and BOWEN, District Judge.

BOWEN, District Judge.

This case began in the Trial Court with the return of the grand jury's indictment in four counts, the first two of which were upon the Government's motion dismissed before trial.

As to the remaining Counts 3 and 4, the appellant, Anibal Marin, Jr., pleaded not guilty and was tried, convicted by a jury and sentenced by the Trial Court to five years imprisonment on each of those Counts 3 and 4 with concurrent execution of sentences. Count 3 charged the appellant with unlawfully selling to a named narcotics agent and facilitating the sale of heroin, a narcotic drug, which as appellant well knew had been imported into the United States contrary to law. Count 4 charged the appellant with having unlawfully received, concealed and facilitated the concealment and transportation of the same narcotic drug which as appellant well knew had been imported into the United States contrary to law.

From those sentences appellant now brings this appeal saying that the only question on appeal is whether appellant was unlawfully entrapped by an agent or special employee of the appellee United States respecting appellant's doing the things charged against him in the indictment. In that connection, appellant more specifically contends (1) that such defense of unlawful entrapment was established as a matter of law, and that the Trial Court erred in denying appellant's motion for acquittal at the close of all the evidence, and (2) that the Trial Court erred in denying appellant's motion for a new trial because the jury did not understand appellant's defense of unlawful entrapment as indicated by their questions addressed to the Trial Judge during the jury's deliberations and the Trial Court improperly instructed the jury respecting unlawful entrapment, and because, as appellant further contends, the appellee's witness, a federal narcotics agent, was impeached.

The Trial Court had jurisdiction under Title 18 U.S.C. § 3231 and Title 21 U.S.C. §§ 173 and 174. This Court has jurisdiction under Title 28 U.S.C. §§ 1291 and 1294.

Appellant in his brief admits that he was a narcotics addict at the time of the alleged offenses and had a previous narcotics law conviction, but appellee contends that at that time appellant was only an occasional narcotics user and not an addict. In his activities here, appellant freely used the jargon of the narcotics trade, and in order to escape detection significantly directed over a devious route the operation of the automobile used to make the narcotics sale, thereby indicating his familiarity with that business. He testified that the narcotics agent had visited his home several times and tried to get him to sell the agent narcotics, both of which facts were denied by that agent.

The agent testified that he and a special employee of the Narcotics Bureau first met appellant at a pastrami stand and that appellant sold them narcotics on that occasion, that later the agent met appellant at the same place when appellant obtained the agent's telephone number, and that thereafter appellant telephoned the agent at his apartment and said he had been trying to contact the agent for three days and that his narcotics supplier was then with him and that the agent could come over and pick up a half ounce of heroin for $150.

According to the agent's testimony, he later, on September 7, 1962, contacted appellant, paid him that sum of money and received from appellant the heroin less a portion which appellant said he had kept as his commission because he was not making any money out of the sale, and the agent, saying to appellant "Well, if that is the way it is, I guess it's okay", permitted appellant to keep that "commission", but the agent denied his making any such commission agreement before the sale. The agent also testified in effect that upon completing the September 7th sale, the appellant said "Well, I'll call you tomorrow. How much more do you want?" and then walked away.

The agent gave further testimony in effect: That the next day, September 8, 1962, appellant again telephoned the agent and said "I'm ready, come on over", and that he could sell the agent two ounces of heroin for $300 per ounce,...