412 F.2d 1181 (10th Cir. 1969), 83-69, United States v. Freeman

Docket Nº:83-69.
Citation:412 F.2d 1181
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Stephen Thomas FREEMAN, Defendant-Appellant.
Case Date:June 20, 1969
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1181

412 F.2d 1181 (10th Cir. 1969)

UNITED STATES of America, Plaintiff-Appellee,

v.

Stephen Thomas FREEMAN, Defendant-Appellant.

No. 83-69.

United States Court of Appeals, Tenth Circuit.

June 20, 1969

Page 1182

Milton C. Branch, Asst. U.S. Atty. (James L. Treece, U.S. Atty., was with him on the brief), for plaintiff-appellee.

Peter J. Wall, Denver, Colo., for defendant-appellant.

Before BREITENSTEIN, HILL and HOLLOWAY, Circuit Judges.

BREITENSTEIN, Circuit Judge.

A jury found defendant-appellant Freeman guilty of selling LSD in violation of 21 U.S.C. §§ 321(v)(3) 331(q)(2). He appeals from the sentence imposed.

A federal agent, Bullock, testified that on July 24, 1967, he purchased five tablets of LSD from the defendant. Two other agents witnessed the meeting of Bullock and the defendant. A government chemist testified that the tablets contained LSD. The defendant took the stand in his own behalf. He testified that he had never seen Bullock before his arrest in August, 1968. He denied making the sale to Bullock. When asked on cross-examination whether he had sold LSD, he replied: 'I have transacted a couple of-- a couple of deals with close friends of mine, * * *.'

The defendant claims that the evidence is insufficient to sustain the verdict. He first points out the lapse of a year between the offense and the arrest. Whatever implications might arise therefrom were for the jury. The indictment was returned well within the five-year limitation period. See 18 U.S.C. § 3282. The matters relating to the

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chain of possession of the tablets from agent Bullock to the chemist and back relate only to the weight to be given the testimony of the chemist. In the final analysis, the verdict depended on whether the jury believed agent Bullock or the defendant. The matter of credibility is for the jury, not for the appellate court.

The argument is also made that entrapment was established as a matter of law. The defense of entrapment is inconsistent with the denial of the transaction. See Rowlette v. United States, 10 Cir., 392 F.2d 437, 438, and Martinez v. United States, 10 Cir., 373 F.2d 810, 811-812. In any event, our review of the record convinces us that agent Bullock merely afforded the defendant an opportunity for the commission of the offense for which he already had the criminal propensity. In such circumstances there is...

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