Lutfy v. United States

Citation198 F.2d 760
Decision Date05 September 1952
Docket NumberNo. 13199.,13199.
PartiesLUTFY v. UNITED STATES.
CourtU.S. Court of Appeals — Ninth Circuit

Darrell R. Parker, Phoenix, Ariz., for appellant.

Frank E. Flynn, U. S. Atty., E. R. Thurman, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before MATHEWS and STEPHENS, Circuit Judges, and DRIVER, District Judge.

DRIVER, District Judge.

This is an appeal from a judgment of conviction of violation of the Federal Narcotics Laws.1 The only question presented is whether the trial court erred in declining to instruct the jury on the defense of entrapment. Appellant relied upon that defense and requested several instructions, which, as appellee concedes, correctly stated the law. The court refused to give any of them and did not give any instruction on the subject of entrapment. Appellant took adequate and timely exception.

We need not recite the facts in detail. We think it will serve our purpose to summarize only the testimony given by appellant in his own behalf. His testimony was disputed in many important particulars by the Government's witnesses, it is true, but it was the exclusive function of the jury to pass upon the credibility of the witnesses and resolve the conflict. The jury had the right to believe appellant's testimony and if, at face value, it supported the defense of entrapment, the factual issue was one for the jury; and an appropriate instruction on the law should have been given.

According to appellant's testimony, some time in 1946, one William R. Young approached him and struck up an acquaintance. Young and appellant became close friends and drinking companions. Young also met appellant's wife and called at appellant's home almost daily, sometimes in company with his own wife and two small children. He would come into appellant's house without knocking, help himself to drinks of whiskey or beer, which were generally kept there, and if he was hungry, would go to the ice box and help himself to the food.

Unknown to appellant, Young was a special employee of the Federal Bureau of Narcotics. On a number of occasions, when he and appellant were drinking together, Young would bring up the subject of narcotics and ask whether appellant knew where they could get some heroin. Appellant told Young that he knew nothing about narcotics and "didn't want anything to do with them." On one occasion, Young called at appellant's house with a Chinese gentleman, whom he introduced as George Wong, "A big night club owner in San Francisco." Wong gave Young some money and the latter went out to a liquor store and brought back a bottle of Scotch whiskey. Young took appellant out in the kitchen, poured a "double shot" and told him that Wong had "a lot of money" and a blonde mistress who was an addict in need of heroin and Wong wanted to get some for her. Young suggested that he and appellant procure some heroin for Wong. Appellant told Young, "I don't want anything to do with him," and Young and Wong left the house. Wong's true name was Gon Sam Mue. He was an agent of the Federal Bureau of Narcotics, and the story of his having an addict mistress was of course, a complete fabrication.

Thereafter, and on November 11, 1950, Young again called at appellant's home this time with a man whom he introduced as his friend, Harry Rankin. The stranger was, in fact, as appellant discovered after his arrest, Earnest M. Gentry, a District Supervisor of the Bureau of Narcotics. Young suggested that they go out and "get a beer," but appellant said that he was "broke" and, anyway, had to go to the hospital to see his wife, who was ill. Young insisted, and the three of them drove to a beer tavern in Rankin's automobile. There, they sat in a booth, and Rankin ordered the drinks. In the course of the ensuing general...

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  • Robison v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • July 3, 1967
    ...to the jury as a question of fact see: Masciale v. United States, supra, 356 U.S. 386, 78 S.Ct. 827, 2 L.Ed.2d 859; Lutfy v. United States, 198 F.2d 760, 762 (9th Cir. 1952), and turn now to the errors claimed to stem from As the second witness for the defense, appellant called Mr. Wilmer J......
  • Sherman v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • March 8, 1957
    ...96 F. 2d 882; United States v. Singleton, D. C., 110 F.Supp. 634; Yep v. United States, 10 Cir., 83 F.2d 41; Lutfy v. United States, 9 Cir., 198 F.2d 760, 33 A.L.R.2d 879; United States v. Pisano, 7 Cir., 193 F.2d 355, 31 A.L.R.2d 409; Rucker v. United States, 92 U.S.App. D.C. 336, 206 F.2d......
  • U.S. v. Borum, 76-1879
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • October 20, 1978
    ...he was preeminently predisposed. Compare Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). Lutfy v. United States, 198 F.2d 760 (9th Cir. 1952). In this case it must be remembered that the predisposition we are talking about is the predisposition to possess guns. I......
  • Pierce v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • August 20, 1969
    ...558; Coronado v. United States, 5 Cir. 1959, 266 F.2d 719; United States v. Sawyer, 3 Cir. 1954, 210 F.2d 169; Lutfy v. United States, 9 Cir. 1952, 198 F.2d 760, 33 A.L.R.2d 879. If there is a factual controversy it is usually for the jury to resolve, not for the court to find as a matter o......
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