Cesario v. United States, 4682.
| Citation | 200 F.2d 232 |
| Decision Date | 11 December 1952 |
| Docket Number | No. 4682.,4682. |
| Parties | CESARIO v. UNITED STATES. |
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
Alfred Paul Farese, Everett, Mass., for appellant.
William J. Koen, Asst. U. S. Atty., Boston, Mass. (George F. Garrity, U. S. Atty., Boston, Mass., on brief), for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
Salvatore Cesario appeals from a judgment of conviction under an indictment, in two counts, charging the defendant with unlawful sales in Boston, Massachusetts, of heroin, a derivative of opium, on February 28, 1952, and March 25, 1952, respectively, in violation of 26 U.S.C. § 2554(a). The defendant pleaded not guilty, and waived a trial by jury with the approval of the court and the consent of the government, as provided in Rule 23(a) of the Federal Rules of Criminal Procedure, 18 U.S.C. The district judge found the defendant guilty as charged on both counts, and imposed a prison sentence of five years on each count, the two sentences to run concurrently.
The only point on appeal which we think to be deserving of brief comment is the failure of the district judge to grant certain requests for rulings submitted by the defendant.
These requests for rulings, thirteen in number, were submitted to the district judge at some time during the trial, it does not appear just when. They read like typical requests for instructions to the jury in a criminal case, as provided in Rule 30, Fed.Rules Crim.Proc., a rule which obviously has reference only to cases tried to a jury, and not to a jury-waived case.
At the conclusion of the evidence the trial judge announced: "I find the defendant guilty on both counts." At that point counsel for the defendant requested the court to pass on his so-called requests for rulings. This the district judge obligingly undertook to do, taking up the requests seriatim and either stating that he would grant or refuse to grant the particular request.
Several of the requests contained abstract propositions of law dealing with the defense of entrapment. The district judge stated that he would not grant this group of requests. His reason for such refusal was not that the requests were incorrect as abstract propositions of law. Rather, his point was that it was superfluous to give such instructions to himself, since he had found as a fact that there was no entrapment in the case because he did not accept the defendant's story of what had happened.
Throughout the course of the trial the...
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