491 F.2d 184 (9th Cir. 1974), 73-2503, United States v. Greenbank

Docket Nº:73-2503.
Citation:491 F.2d 184
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Edward W. GREENBANK, Defendant-Appellant.
Case Date:January 28, 1974
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 184

491 F.2d 184 (9th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellee,

v.

Edward W. GREENBANK, Defendant-Appellant.

No. 73-2503.

United States Court of Appeals, Ninth Circuit.

January 28, 1974

Rehearing Denied Feb. 28, 1974.

Page 185

Larry L. Debus (argued), of Debus, Busby & Green, Phoenix, Ariz., for defendant-appellant.

William C. Smitherman, U.S. Atty., Patricia Whitehead, Ronald A. Lebowitz,

OPINION

Before WRIGHT and CHOY, Circuit Judges, and EAST, 1 Senior District Judge.

EAST, Senior District Judge:

The defendant-appellant, Edward W. Greenbank (Greenbank), William T. Laakman and Betty Rose Laakman (the Laakmans) were indicted on one count of violating 21 U.S.C. 841(a)(1) and (b) (possession with intent to distribute a quantity of a controlled substance) and on one count of violating 21 U.S.C. 846 (conspiracy).

Greenbank and the Laakmans were jointly tried before a jury on April 17 through 19, 1973, and Greenbank was found guilty on both counts as charged. The district court had Greenbank's motion for judgment of acquittal for both counts under advisement, and thereupon granted the motion as to the possession count and entered appropriate order. Greenbank was sentenced to custody on the conspiracy conviction and appeals. We affirm. Greenbank's assignments of error are consolidated as follows:

1. The district court should have granted defendant's motion for a verdict of acquittal on the conspiracy charge because of the total enmeshment, from beginning to end, of a paid government agent in the criminal enterprise culminating in a denial of due process under the United States Constitution.

2. The cumulative effect of the numerous instances of prosecutorial misconduct throughout the trial constituted plain error and a new trial should have been granted, notwithstanding the fact that defense counsel withdrew his motion for a mistrial prior to closing argument.

3. The sentence imposed by the district court judge was invalid in that it

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was based on an erroneous and misleading presentence report.

Assignment of Error 1:

Greenbank candidly concedes in his briefs that the rationale and holding of United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (April 24, 1973) (Russell-Supreme Court), forecloses any defense of entrapment under the facts of this case. In fact, Greenbank states 'he never asserted entrapment as a defense.' Yet it is fair to note that the jury trial was had during the advent of Russell-Supreme Court and while the rationale and holding of United States v. Russell, 459 F.2d 671 (9th Cir. 1972) (Russell-Circuit Court), was viable. It is manifest from the district court's jury instruction requested by Greenbank and objected to by the government that Greenbank's theory of defense throughout the trial and submission to the jury was based upon the broadened Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210 77 L.Ed. 413 and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, principle of the defense of entrapment as enunciated in Russell-Circuit Court, supra, viz:

'that a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise.'

That view or concept makes the essential element of the defense turn on a measuring or calibration of the type and degree of governmental involvement in the criminal venture, rather than absence on the part of the accused a predisposition to commit the crime. It was that very concept that was flatly rejected in Russell-Supreme Court. Furthermore...

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