United States v. Basey, 72-1813.

• Decision Date: 29 September 1972
• Docket Number: No. 72-1813.,72-1813.
• Citation: 468 F.2d 194
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Stephen BASEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

468 F.2d 194 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Stephen BASEY, Defendant-Appellant.

No. 72-1813.

United States Court of Appeals, Ninth Circuit.

September 29, 1972.

William L. Osterhoudt (argued), George G. Walker, San Francisco, Cal., for defendant-appellant.

James H. Daffer, Asst. U. S. Atty. (argued), F. Steele Langford, Janet Aiken, Asst. U. S. Attys., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

Before CHAMBERS, BARNES and MOORE^*, Circuit Judges.

BARNES, Circuit Judge:

Appellant Basey was indicted with three co-defendants of the possession, with intent to distribute, various amounts of dl-desoxyephedrine, a "Schedule III controlled substance." This was a four count indictment with three substantive counts (involving .9 gram, 456 grams, and 802 grams, respectively)— 21 U.S.C. § 841(a)(1)—and a conspiracy count—21 U.S.C. § 846. Appellant Basey was convicted only on Count One, involving a "sample" of the drug in his possession.

Government agents supplied appellant and his co-defendants at differing times with a difficult to get chemical essential to the manufacture of dl-desoxyephedrine, namely: "phenyl-2-propanone" (commonly known, and hereinafter referred to, as "P2P"). No defendant testified. The government's testimony as to the "trade" of the P2P for certain quantities of the controlled substance resulted in a jury verdict for all defendants on Counts Two, Three and Four on grounds of government entrapment. The jury, after some deliberation, asked the judge whether the government had supplied the essential chemical (P2P) for the production of the .9 gram which was the subject of Count One. The trial judge stated there was no direct proof "Establishing that one way or the other." (R.T. 112-113) Counsel for defendant below agreed. (R.T. 109-110) The jury decided appellant's entrapment argument failed as to Count One.

Appellant urges as the first error that the evidence established, as a matter of law, entrapment as to Count One. Neither the jury nor the trial judge agreed, nor do we. For government agents to afford a defendant opportunities and facilities for the commission of the offense in question is not enough. There is ample evidence to support an implicit jury finding that the government agents did not exert persuasion or pressure of any kind in an effort to induce defendant to commit the offenses charged, i. e., to produce the contraband drug. See: United States v. Walton, 411 F.2d 283, 288 (9th Cir., 1969); United States v. Hodas, 467 F.2d 211 (9th Cir., decided 9/11/72). The jury so found as to Count One, and found to the contrary in Counts Two to Four,...