546 F.2d 613 (5th Cir. 1977), 75-4469, United States v. Garcia

Docket Nº:75-4469, 75-4487.
Citation:546 F.2d 613
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Amador GARCIA, Jr., Defendant-Appellant.
Case Date:February 03, 1977
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 613

546 F.2d 613 (5th Cir. 1977)

UNITED STATES of America, Plaintiff-Appellee,

v.

Amador GARCIA, Jr., Defendant-Appellant.

Nos. 75-4469, 75-4487.

United States Court of Appeals, Fifth Circuit

February 3, 1977

Page 614

Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., William W. Burge, Gustavo L. Acevedo, Asst. Fed. Public Defenders, Laredo, Tex., for defendant-appellant.

Edward B. McDonough, Jr., U. S. Atty., James R. Gough, George A. Kelt, Jr., Asst. U.S. Attys., Houston, Tex., Joe Garza, Asst. U. S. Atty., Laredo, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before AINSWORTH and CLARK, Circuit Judges, and HUGHES, District Judge. [*]

CLARK, Circuit Judge:

Defendant Amador Garcia, Jr. was convicted on December 19, 1975 of conspiracy to possess heroin with the intent to distribute, 1 possession of heroin with intent to distribute, distribution of heroin, 2 and assaulting a federal officer. 3 The defendant's sole contention is that the evidence presented raised the issue of entrapment. The trial court refused to instruct the jury on this defense. We agree that the evidence did not raise the issue and affirm.

The evidence presented by the government indicated that on July 29, 1975, the

Page 615

defendant was introduced to a purported buyer of heroin who was in fact an undercover federal Drug Enforcement Administration (DEA) agent, Mario Alvarez. The introduction was made in Zapata, Texas by Fernando (Bobby) Villareal, who was Garcia's cousin and had agreed to assist the government. Soon after the contact was made, Bobby Villareal left Garcia and Alvarez and was no longer involved in the transactions. After buying approximately an ounce of heroin at this time, Alvarez met Garcia on August 7 to buy another ounce. Alvarez was shown the supposed drug, ascertained secretly with other agents that the substance was heroin, and then made the arrest after a brief scuffle.

Garcia testified in his own defense that Bobby Villareal's brother, Bernardo, pressured him for six or eight weeks to make the sale to Alvarez. Bernardo supposedly indicated that Alvarez was a friend he had made while the two were incarcerated in a Brownsville, Texas jail. After repeated refusals to sell, Garcia states he succumbed to Bernardo Villareal's entreaties and agreed to the transaction...

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