Rodriguez v. United States, 15551.
| Decision Date | 21 December 1955 |
| Docket Number | No. 15551.,15551. |
| Parties | Purification RODRIGUEZ, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert A. Scardino, Scardino & Regnier, Houston, Tex., for appellant.
Malcolm R. Wilkey, U. S. Atty., Carlos G. Watson, Jr., Asst. U. S. Atty., Houston, Tex., for appellee.
Before TUTTLE, CAMERON and JONES, Circuit Judges.
This appeal is from a conviction on two of three counts of an indictment charging the appellant with violating Section 174 of Title 21 U.S.C.A. by concealing or selling or facilitating the transportation or concealment of heroin which had been imported into the United States contrary to law. The principal issue presented is whether there was evidence upon which the verdict of guilty might be based.
Through a special employee, Gerald Hudson, engaged by a federal narcotics agent, three purchases of heroin were made. However, appellant was found guilty upon but two of these purchases, and they only are involved here. There is evidence that Hudson arranged for the first purchase through the appellant and appellant admits that she was present at the time both transfers were made. Furthermore, Hudson testified that appellant received the money on the occasion of the first transfer, and both Hudson and the narcotics agent, who was hidden in the back of Hudson's car, heard the appellant state, at the time of the second transfer, that she might make further sales of another type of the same drug to Hudson. Lopez, the person who actually passed the heroin to Hudson on both occasions in question, was indicted along with appellant, and pleaded guilty. We deem this evidence sufficient to connect the appellant with the purchases involved and to sustain her conviction.
The appellant also argues that the District Court erred in failing to grant her motion to dismiss and request for an instruction based on entrapment.
"The gist of the defense of entrapment is the conception of the crime by the government's agent for the purpose of prosecuting the defendant, the latter not having any previous intention to commit it." Hamilton v. United States, 5 Cir., 1955, 221 F.2d 611, 614. The accused must have been an innocent person whom the Government seeks to punish for an offense "which is the product of the creative activity of its own officials." Sorrells v. United States, 1932, 287 U.S. 435, 451, 53 S.Ct. 210, 216, 77 L.Ed. 413. Our statement in Demos v. United States, 5 Cir., 1953, 205 F.2d 596, at page 599, (a case involving somewhat analogous facts) throws light upon this subject:
"For the offense to originate in the mind of the defendant, it was not necessary that the defendant be the instigator of the particular sale or act, but only that she have the general intention to commit such an...
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