United States v. Hayes, 438-70
Decision Date | 10 June 1971 |
Docket Number | 568-70.,No. 438-70,438-70 |
Citation | 441 F.2d 542 |
Parties | UNITED STATES of America, Plaintiff-Appellee v. Larry HAYES, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee v. William A. HESS, Defendant-Appellant. |
Court | U.S. Court of Appeals — Tenth Circuit |
Robert L. Pitler, Denver, Colo., for Larry Hayes.
Joseph Saint-Veltri, Denver, Colo., for William A. Hess.
James L. Treece, U. S. Atty., and Milton C. Branch, Asst. U. S. Atty., for plaintiff-appellee.
Before LEWIS, Chief Judge, ADAMS*, Circuit Judge, and BROWN, District Judge.
Defendants Hess and Hayes were convicted on April 14, 1970 by a jury in the United States District Court for the District of Colorado of violating 21 U.S. C. § 331(q) (2) by their possession and sale of lysergic acid diethylamide (LSD).
The government's chief witness, David M. Taketa, a narcotics investigator for the Adams County, Colorado Sheriffs' Office testified that he was introduced in Boulder, Colorado to defendants by one John Ellerton on July 17, 1969, as "his money man for narcotics * * *" Taketa paid the defendants $254 in exchange for 196 tablets containing LSD.
Each defendant testified in his own behalf and raised the defense of entrapment. Hayes testified that he had known Ellerton for two or three months before the transactions here, and that he saw him at least twice each week. During this period, Hayes claimed that Ellerton often asked to purchase drugs from him for resale, saying variously that his (Ellerton's) wife was pregnant and that he had no money to pay the bills, and that he was losing his car, or that he owed money to people who would harm him if he did not pay. Each time Ellerton asked, Hayes testified that he refused to sell any drugs to him. On the afternoon of July 17th, Ellerton asked Hayes to see Taketa that night to discuss a drug transaction, telling Hayes that Taketa was the person to whom he owed money. Hayes testified he would not have sold the drugs except for Ellerton's pleadings.
Defendant Hess testified that he had known Ellerton about one and one-half months before the sale of LSD. Hess said that Ellerton told him he and Taketa were associated with organized crime and that Taketa was pressuring Ellerton to repay some money. Hess claimed to have been induced to make the sale here because of Ellerton's entreaties.
The government did not produce Ellerton to testify.
The issue in this case arises from the trial court's instructions to the jury concerning entrapment. The court instructed as follows:
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U.S. v. Gardner, 74-1311
...Circuit has actually found use of those modifiers to be satisfactory. 10 Of the decisions, only the Tenth Circuit, in United States v. Hayes, 441 F.2d 542 (10th Cir. 1971) and United States v. Hill, 444 F.2d 115 (10th Cir. 1971) has found that the description of entrapment as "lawful" or "u......
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United States v. Hayes
...of 21 U.S.C.A. § 331(q)(2) (1968). Their convictions occurred on a retrial after prior convictions were set aside by this court. 10 Cir., 441 F.2d 542. Hess has not appealed his conviction and we are concerned only with that of The case against Hayes was submitted to the jury on his possibl......
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Gov't of the Virgin Islands v. Cruz
...only prevail if the use of these phrases constituted plain error. We conclude that it did not. Defendant relies on United States v. Hayes, 441 F.2d 542 (10th Cir. 1971), where the Tenth Circuit found that a trial judge committed plain error in instructing a jury regarding a concept of "lawf......
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Government of Virgin Islands v. Cruz, 72-1274.
...only prevail if the use of these phrases constituted plain error. We conclude that it did not. Defendant relies on United States v. Hayes, 441 F.2d 542 (10th Cir. 1971), where the Tenth Circuit found that a trial judge committed plain error in instructing a jury regarding a concept of "lawf......