Martinez v. United States, 6881.
| Decision Date | 27 January 1962 |
| Docket Number | No. 6881.,6881. |
| Parties | Ernest MARTINEZ, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Bruce Johnson, Denver, Colo., for appellant.
Merle R. Knous, Asst. U. S. Atty., Denver, Colo. (Lawrence M. Henry, U. S. Atty., Denver, Colo., with him on the brief), for appellee.
Before PICKETT, LEWIS, and HILL, Circuit Judges.
The defendant, Martinez, was convicted on both counts of an indictment which charged that he made sales of marihuana on two separate dates in violation of 26 U.S.C. § 4742(a). Martinez admits the sales, but contends that he was entrapped into making them by an agent of the United States Treasury Department.
The evidence is not in dispute except as to when the agent and Martinez first met. The agent testified that he first met Martinez during the afternoon of September 18, 1960 when he and a third party, named Prather, went to Max's Tavern in Denver, Colorado, where Prather introduced him to Martinez. Immediately after the introduction Martinez and Prather went into a toilet at the tavern, and upon their return shortly afterward, Prather said, The three left the tavern and entered the agent's automobile, and, at the request of Martinez, the car was driven around the block. Martinez produced a cellophane bag containing marihuana, and removed therefrom a small portion which he gave to Prather. The agent then stopped the car, and Martinez sold him the remainder of the marihuana for $25.00, stating, After the purchase Martinez was taken back to the tavern. Although it is apparent that the agent and Prather went to Max's Tavern to purchase marihuana, there is no evidence that there was any intention to buy it from Martinez in particular. The only circumstance of trickery or artifice to deceive on the part of the agent was his failure to tell Martinez that he was a government agent.
The agent saw Martinez again the next day, at which time they visited and discussed their careers as prize fighters.1 On the 20th day of September, 1960, late in the afternoon, Martinez and the agent again met at Max's Tavern, and Martinez was asked if another purchase of marihuana could be made. He answered that it could, and immediately went to a telephone booth located in the tavern. Within a few minutes he returned and requested the agent to drive him to a nearby parking lot where he left the automobile after directing the agent to return to the tavern and wait for him. Shortly thereafter Martinez returned and told the agent to come to the car, "that everything was ready." The two entered the automobile, and a tobacco can of marihuana was taken from under the seat cushion by the defendant and delivered to the agent who paid him $25.00. They then separated. The agent testified that the two visited on other occasions thereafter, and became quite friendly.
Martinez does not deny that the transactions occurred as described by the agent. He admitted that prior to the meeting at Max's Tavern on the 18th he had a conversation with Prather relating to the agent, and that Prather was present when the sale was made. His testimony was to the effect that he had no criminal record; was not a dealer in marihuana or any narcotics and never had been; that he had several visits with the agent prior to the sale on September 18th at which times he had refused to assist in the purchase of marihuana, and that the two purchases were made only as a favor to the agent with whom he had become friendly. His testimony concerning their relationship and the agent's requests prior to the first sale presents the conflict in the evidence referred to above.
The sufficiency of the evidence was not challenged by motion, and no exception was taken to the court's instruction on the law of entrapment. In this respect it should be noted that at the trial Martinez...
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