United States v. Christopher, 73-2101.

• Decision Date: 12 December 1973
• Docket Number: No. 73-2101.,73-2101.
• Citation: 488 F.2d 849
• Parties: UNITED STATES of America, Appellee, v. Edgar CHRISTOPHER, Jr., and Tommy Gene Everidge, Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

488 F.2d 849 (1973)

UNITED STATES of America, Appellee, v. Edgar CHRISTOPHER, Jr., and Tommy Gene Everidge, Appellants.

No. 73-2101.

United States Court of Appeals, Ninth Circuit.

November 12, 1973.

Rehearing Denied December 12, 1973.

Rubin Salter, Jr. (argued) of Kipps & Salter, Richard E. Bailey (argued), Tucson, Ariz., for appellants.

Wm. C. Smitherman, U. S. Atty., Daniel G. Knauss, Gerald S. Frank, Asst. U.S. Attys. (argued), Tucson, Ariz., for appellee.

Before ALDRICH,^* ELY and CHOY, Circuit Judges.

OPINION

ELY, Circuit Judge:

Appellants Christopher and Everidge were convicted by a jury of knowing possession of heroin with the intent to distribute it and of the intentional distribution of the drug in violation of 21 U.S.C. § 841(a) (1). The convictions were based on three separate sales of heroin to a government narcotics agent. Both appellants now appeal on the ground that the District Court erred in refusing to instruct the jury on the defense of entrapment. Christopher appeals on three additional grounds: (1) the prosecution failed to establish a continuous chain of custody linking the heroin to him, (2) the conflicting interests of the defendants entitled Christopher to a separate attorney, and (3) counsel was incompetent.

The testimony established that Christopher was approached by an undercover agent who had information that Christopher was selling heroin. The agent asked Christopher if he, the agent, could purchase an ounce of heroin, and Christopher replied he would sell him an ounce for $900. The next day delivery was made to the agent by Christopher, and Christopher advised the agent he could handle any quantity of pure heroin needed by the agent. The two discussed the possibility of future sales. Approximately a week later, Christopher and the agent met with Everidge, and the agent bought an ounce and a half of heroin that Everidge had brought to the meeting. Everidge, Christopher, and the agent then discussed a future sale of a pound of pure heroin. For several weeks the agent kept in contact with the appellants to find out when the pound of heroin would be ready for purchase. Although at one point Everidge informed the agent that eight ounces were ready for sale, the agent told him that he preferred to buy the whole pound of heroin at one time. Subsequently, Christopher called the agent and informed him that he had three ounces of heroin for sale. The agent then met with Christopher and Everidge, who brought the heroin to the meeting. Shortly after the heroin had been weighed the arrest was made.

The appellants argue that they were entitled to a jury instruction on the issue of entrapment, because cross-examination of the agent at trial established that the agent, and not the defendants, initiated the contact for the sale of heroin. The appellants' theory is that any evidence, however slight, which places in issue the appellants' willingness to commit the crime, requires an instruction on entrapment be given to the jury. United States v. Henry, 417 F.2d 267, 269 (2d Cir. 1969); Notaro v. United States, 363 F.2d 169, 174-175 (9th Cir. 1966). However, in this case there is not a scintilla of evidence tending to show entrapment, i. e., that the appellants were unwilling to commit the crime or that the Government's deception planted the criminal design in the minds of the defendants. United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Ortega v. United States, 348 F.2d 874, 876 (9th Cir. 1965). The lone fact that the government's agent, posing as a buyer, initially contacted the appellants is evidence only that the Government furnished the opportunity for the commission of a crime. The slight testimony which we have held allows the issue of entrapment to go to the jury must still constitute some evidence of inducement or persuasion by the Government.¹ Since we find there was no evidence of entrapment in this case, we need not reach the Government's alternative grounds to deny the entrapment instruction.

Christopher argues that the exhibits of heroin were erroneously admitted at trial. He contends that a continuous chain of custody linking himself to the heroin was not proved. This contention is also without merit. The exhibits were initialed by the agent at the time he received them, sent by registered mail to a government laboratory, and received and analyzed by a government chemist who also marked the exhibits. Both the agent and the chemist identified the exhibits and testified as to the standard procedures followed by the laboratory. The chemist...