McCarthy v. United States, 9984.
| Decision Date | 10 September 1968 |
| Docket Number | No. 9984.,9984. |
| Citation | 399 F.2d 708 |
| Parties | Marilou McCARTHY, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Marshall Quiat, Denver, Colo., for appellant.
Donald E. Cordova, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty., on the brief), for appellee.
Before PHILLIPS, HILL and SETH, Circuit Judges.
A two-count information was filed against McCarthy. Each count charged an unlawful sale of lysergic acid diethylamide (LSD).1 She was tried and found guilty by a jury on each count. Imposition of sentence was suspended and she was placed on probation for a period of two years on each count, to run concurrently. She has appealed and asserts two grounds for reversal:
(1) That the evidence established the defense of entrapment as a matter of law; and
(2) That the evidence was insufficient to establish that the tablets which defendant sold were LSD.
Our function in passing on these contentions will be to determine whether the evidence considered in a light most favorable to the prosecution and the inferences reasonably deductible therefrom afford substantial support for the verdicts of the jury, which resolved such contentions adversely to the defendant.2
The evidence, so viewed, established the following facts:
On May 3, 1967, L. L. Orton was an agent of the Federal Bureau of Drug Abuse Control, and he operated in an undercover capacity in detecting illegal sales or distribution of controlled drugs. He was then being assisted by Julie Green, in the capacity of an informer.
By prearrangement, Orton and Green met at a tavern in Boulder, Colorado, known as "The Sink," on May 3, 1967. When Orton entered the tavern, Green was sitting in a booth. He sat down in the booth with her. Orton was disguised so that it was not likely that he would be suspected of being a federal agent. They were joined by four or five other "hippie type" persons, a type that frequented The Sink.
Green was acquainted with the defendant. She had known her at Fort Collins, Colorado. About 6:30 p. m. of that day, defendant came over to the booth where Orton and Green were seated and asked them what they were doing in Boulder. Green replied that they were looking for "acid," meaning LSD. Defendant stated she knew where she could get them some LSD. Green and McCarthy then went to the rear of the tavern, where the rest rooms were located. They returned after about five minutes. Orton and Green left The Sink about 6:45 p. m. and entered a car parked in front of The Sink. The defendant came over to the car where they were seated and told them she could get the LSD and that it would cost $7.50 per tablet. Orton told the defendant that the price was "quite high." Defendant replied that the acid was very good; that it was 1,000 micrograms, and that 100 micrograms was all that was needed for "a trip." Orton then agreed to pay $7.50 per tablet and stated that he wanted to buy 10 tablets. Defendant stated she would meet him later at The Sink.
Orton and Green returned to The Sink. About 15 minutes later, defendant returned and asked Orton and Green to go outside with her. They went outside and entered a red Chevrolet. Defendant drove the Chevrolet about three blocks from The Sink, stopped in the middle of the block, and handed to Orton a package wrapped in tan tissue paper. Orton opened the package and saw that it contained five tablets. Orton told defendant he had ordered 10 tablets. Defendant told him she would get the other five tablets later in the evening. Orton paid her $35 and stated he would pay her $40 when the remaining tablets were delivered. Defendant then drove back to The Sink by a very circuitous route. She let Orton and Green out and then drove away.
Orton and Green then went to another tavern about a block from The Sink, known as "The Buff Room," where defendant had told them she would later meet them. Shortly after they arrived at The Buff Room, defendant joined them and engaged in conversation. However, nothing was said about the additional five tablets. A number of "hippie type" individuals were present. Defendant left The Buff Room and returned about 8:30 p. m. and asked Orton and Green to go outside with her. After going outside, Green returned to The Buff Room and Orton and defendant started walking along College Street. Defendant handed Orton a black and gold matchbox. He opened it and it contained five tablets, similar to the ones defendant had earlier...
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