United States v. Carter

Citation326 F.2d 351
Decision Date31 December 1963
Docket NumberNo. 14089.,14089.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Johnny CARTER, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Donald J. LaVarre, Chicago, Ill., for appellant.

Frank E. McDonald, U. S. Atty., John Powers Crowley, Asst. U. S. Atty., James P. O'Brien, U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., of counsel, for appellee.

Before SCHNACKENBERG, CASTLE and KILEY, Circuit Judges.

CASTLE, Circuit Judge.

Johnny Carter, the defendant-appellant, was convicted following a trial before the court without a jury on a six-count indictment charging offenses1 relating to the unlawful transfer, sale and possession of narcotics on two specific occasions some four months apart. He was found guilty on all six counts and a general sentence of imprisonment for a period of six years was imposed. Defendant's appeal is prosecuted in forma pauperis.

Defendant's sole contention is that the judgment order of the District Court should be reversed on the ground that the record establishes entrapment as a matter of law.

In resolving the issue raised by defendant's contention we must view the evidence in a light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; United States v. Coduto, 7 Cir., 284 F.2d 464. As a reviewing court it is not our function to weigh the evidence and determine credibility of witnesses. United States v. Jones, 7 Cir., 302 F.2d 46; United States v. Ziemer, 7 Cir., 291 F.2d 100. An examination of the record reveals testimony of government witnesses clearly sufficient to warrant the trial court in finding that the defendant acquired, possessed, transferred, sold and delivered marihuana and cocaine as charged in the indictment. The testimony of government narcotic agents and a government informer as to these activities is direct and positive. The sales and deliveries involved were in each case made to a government narcotic agent pursuant to previous arrangements between the defendant and the informer. The predisposition of the defendant to commit the offenses is equally supported by the record. There is testimony of conversations in which the defendant gave assurance as to the quality of the narcotics he handled and vouched for accuracy of measure as to the quantity supplied — that he "measured the stuff himself". Such assurances are not the indicia of circumstances in which an innocent victim is being entrapped. Moreover, defendant's trial testimony in which he denied the marihuana transaction is inconsistent with a claim of entrapment on that occasion. United States v. Kaiser, 7 Cir., 138 F.2d 219, 220.

Defendant's claim of entrapment with respect to the cocaine transaction is based on his testimony that the government informer-witness approached him at the Post Office, where both were employed, and told him that a cousin of the witness was in need of narcotics but that the witness did not want his cousin to know he was peddling narcotics and requested defendant to assist him in the transaction; that although money was passed between defendant, the informer-witness, and a government agent (represented to be the "cousin") no possession, sale or delivery of narcotics by the defendant took place — that defendant had never sold narcotics to anyone. It is apparent from the remarks made by the trial judge at the time of...

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13 cases
  • United States v. Varelli
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 11, 1969
  • United States v. Banks
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • December 11, 1972
  • U.S. v. Nicosia
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • November 25, 1980
    ...into committing it. In this Circuit, United States v. Roviaro, 7th Cir.1967, 379 F.2d 911, and cases there cited; United States v. Carter, 7th Cir.1963, 326 F.2d 351, absent admission of the act an instruction on entrapment will not be submitted to the jury. United States v. Johnston, supra......
  • United States v. Shameia
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 31, 1972
    ...this Circuit is that a denial of the commission of the acts charged is inconsistent with a defense of entrapment." United States v. Carter, 326 F.2d 351, 353 (7th Cir. 1963): "Moreover, defendant\'s trial testimony in which he denied the marihuana transaction is inconsistent with a claim of......
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