Pulido v. United States, No. 22401

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: CHAMBERS, KOELSCH and HUFSTEDLER, Circuit
• Citation: 425 F.2d 1391
• Parties: Salvador H. PULIDO, Appellant, v. UNITED STATES of America, Appellee. Manuel LUNA, Appellant, v. UNITED STATES of America, Appellee.
• Decision Date: 10 April 1970
• Docket Number: No. 22401

425 F.2d 1391 (1970)

Salvador H. PULIDO, Appellant,
v.
UNITED STATES of America, Appellee.
Manuel LUNA, Appellant,
v.
UNITED STATES of America, Appellee.

Nos. 22401, 22401-A.

United States Court of Appeals, Ninth Circuit.

April 10, 1970.

425 F.2d 1392

William J. Woods, Berkeley, Cal. (argued), for Luna.

Stephen C. Williams, Concord, Cal. (argued), for Pulido.

Dennis E. Kinnaird (argued), Asst. U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Wm. Matthew Byrne, U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, KOELSCH and HUFSTEDLER, Circuit Judges.

CHAMBERS, Circuit Judge:

Luna and Pulido, along with Frank Collins and Gilbert Vasquez, were named in a nine count indictment charging them with violation of 21 U.S.C. § 174. Collins pleaded guilty and became a witness for the government. After a jury trial, Luna, Pulido, and Vasquez were all convicted on multiple counts. Having failed to appeal, Luna and Pulido successfully petitioned under 28 U.S.C. § 2255 to have their right of appeal reinstated.

The government's theory at trial linked the appellants with the crimes in the following manner: At the urging of a government informer (Ochoa), Luna obtained heroin from Collins and sold it to a government agent (agent Maria). Luna was not arrested after the first sale because the government was seeking the source of the heroin. Luna (along with Collins) was finally arrested in a bar following a sale to agent Maria in which Maria gave marked and dusted money to Luna in return for heroin. After his arrest, Collins cooperated with the agents by aiding them in apprehending Pulido and Vasquez, who were walking along the street at a point approximately two blocks from the bar in which the arrest took place. Upon arresting and searching Pulido and Vasquez, $640 of marked government money which agent Maria had given to Luna was found in Pulido's possession. The substance of Collins' statements and assistance in identifying Pulido and Vasquez is disputed because Collins allegedly changed his story at trial and because the trial judge ruled that Collins' pretrial statements were inadmissible hearsay against Pulido. Pulido's testimony was that Collins was a friend who had given him the money for safekeeping. His main argument on appeal is that his arrest was without probable cause. Luna admitted the sales and based his defense and appeal on entrapment.

I. LUNA

Luna admitted selling heroin but claimed that he was entrapped. His showing of inducement was that one Ernest Ochoa, who was a friend of Luna and a special employee of the Bureau of Narcotics, repeatedly implored him to obtain heroin for sale. Ochoa introduced Luna to agent Maria who was the prospective buyer. Several months passed before Luna finally obtained a supply of heroin and sold it to agent Maria.

Luna's first contention is that the evidence showed entrapment as a

425 F.2d 1393

matter of law. He relies on Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, where the Court as a matter of law decided that entrapment had occurred because the government informant coerced the addict-defendant by repeated meetings and constant entreaties emphasizing the informant's physical need for narcotics. Unlike the situation in Sherman, Luna was not an addict and was not coerced by an emotional appeal based on need for the narcotic to alleviate pain and suffering. On this record we decline to decide that the district judge should have found entrapment as a matter of law

Appellant suggests that entrapment should be an issue for the judge rather than the jury because of the prejudice which results from introducing evidence of reputation to establish predisposition. In Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L. Ed. 413, the Supreme Court held that the issue of entrapment was for the jury rather than the court. A five-to-four majority in Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, declined to disturb the Sorrells' position that entrapment should be an issue for the jury. Change in this regard must await direction from the Supreme Court. See Erwing v. United States, 9th Cir., 394 F.2d 829, 830; Robison v. United States, 9th Cir., 379 F.2d 338, 346.

Once the defendant established that entrapment was a legitimate issue in the case, it became the prosecutor's burden to establish beyond a reasonable doubt that the accused was not entrapped into the commission of the offense. Notaro v. United States, 9th Cir., 363 F.2d 169. The prosecutor may meet his burden by showing through inquiry into the defendant's record of conduct and reputation that he was predisposed to commit the crime and was not an otherwise innocent person who would not have committed the crime but for the inducement. In attempting to show predisposition, the government introduced evidence...