593 F.2d 105 (9th Cir. 1979), 78-2875, United States v. Wright

Docket Nº:78-2875.
Citation:593 F.2d 105
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lester WRIGHT, Defendant-Appellant.
Case Date:March 14, 1979
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 105

593 F.2d 105 (9th Cir. 1979)

UNITED STATES of America, Plaintiff-Appellee,

v.

Lester WRIGHT, Defendant-Appellant.

No. 78-2875.

United States Court of Appeals, Ninth Circuit

March 14, 1979

Page 106

Francis J. Diskin, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellee.

Katrina C. Pflaumer (argued), Seattle, Wash., for defendant-appellant.

Appeal from the United States District Court for the Western District of Washington at Seattle.

Before SNEED and ANDERSON, Circuit Judges, and D. WILLIAMS, [*] District Judge.

SNEED, Circuit Judge:

Appellant Lester Wright appeals from a conviction of one count of distribution of a controlled substance in violation of 21 U.S.C. § 841, and from his sentence thereunder. He attacks his conviction, arguing that the trial court erroneously excluded a jury instruction tendering his theory of defense. In addition, Wright contends that his sentence must be vacated because the sentencing judge relied upon inaccurate information and impermissible inferences in committing him under the Federal Youth Corrections Act, 18 U.S.C. § 5010(b). We affirm.

I.

FACTS.

On January 27, 1978, Wright and one William Tann were arrested in Tann's automobile in which were found heroin and a gun. On March 14, 1978, a grand jury returned a three-count indictment against Wright and Tann: (1) Count I charged conspiracy between the two to distribute heroin; (2) Count II charged distribution of heroin by both defendants; and (3) Count III charged joint possession with intent to distribute the heroin found in the car. At trial and following presentation of the government's case, the district judge granted defense motions for acquittal on the conspiracy counts. As to Tann, the judge also granted motions for acquittal on Count II and mistrial on Count III. After Wright's defense was put on, the jury acquitted him of the joint possession charge (Count III), but found him guilty of distributing heroin (Count II).

The government's witness as to the distribution charge was the alleged distributee. She testified that she had seen Wright in possession of small quantities of heroin, that she had received heroin from him in November 1977, that they used heroin together on occasion, and that he had given it to her for her own sole use as well. In addition, she testified that Wright stated he obtained the heroin from Tann.

Wright, testifying in defense, stated that he had "snorted" heroin with the government's witness only on two occasions. Once he said she gave him money to purchase heroin and he purchased it and brought it back for them to share, and once they shared heroin already in her possession. The district judge refused the following instruction offered by the defendant.

If you find that defendant Wright acquired only a small quantity of heroin in a joint venture with (the alleged distributee) and used it with her, that evidence alone is insufficient to prove that either defendant distributed heroin and you must find them both not guilty of Count II of the Indictment. The statute charged in Count II of the Indictment is not meant to punish joint purchasers and...

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