United States v. Miller, 73-1741. Summary Calendar.

• Decision Date: 06 August 1973
• Docket Number: No. 73-1741. Summary Calendar.,73-1741. Summary Calendar.
• Citation: 483 F.2d 61
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rickey Lee MILLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

483 F.2d 61 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Rickey Lee MILLER, Defendant-Appellant.

No. 73-1741. Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

August 6, 1973.

Oze R. Horton, Hapeville, Ga. (court appointed), for defendant-appellant.

John W. Stokes, Jr., U. S. Atty., Eugene A. Medori, Jr., Asst. U. S. Atty., Atlanta, Ga., for plaintiff-appellee.

Before JOHN R. BROWN, Chief Judge, and DYER and SIMPSON, Circuit Judges.

PER CURIAM:

Rickey Lee Miller was on October 30, 1972, indicted by a Northern District of Georgia grand jury under two counts for violation of Title 21, U.S.C., Section 841(a) (1), knowingly and intentionally distributing certain quantities of heroin hydrochloride, a Schedule I narcotic drug controlled substance, on two occasions in September 1972. It was then discovered that appellant was born on December 18, 1954, and was therefore 17 years of age at the time the offenses were allegedly committed. On March 8, 1973, after explanation of his rights and upon appellant's signed request to be proceeded against as a juvenile delinquent under Title 18, U.S.C., Section 5031 et seq., an information was filed charging him with juvenile delinquency by knowingly and intentionally distributing .54 grams and 4.31 grams of a Schedule I controlled substance on September 24 and 29, 1972. Miller was tried on these charges upon his plea of not guilty before Judge Freeman of the District Court. The court returned a verdict of guilty for the offense of violating the Federal Juvenile Delinquency Act, Title 18, U.S.C., Section 5032, and imposed a custodial sentence of two years, from which this appeal is taken. We find no merit in either contention raised by appellant and affirm.

Miller's first assignment of error is that he was entrapped into committing acts which he was not predisposed to commit because of improper inducements by a government agent and an undercover informer working with the agent. Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848; Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; United States v. Groessel, 5 Cir. 1971, 440 F.2d 602, 605. The issue of entrapment once it has been sufficiently raised is a question for the trier of fact. Here the trial judge was the fact finder and has resolved this proffered defense against the appellant. Under the facts below we find no error in the court's determination of disputed facts in favor of the government, despite conflicting evidence introduced by the appellant. Glasser v. United States, 1940, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. The evidence was clearly sufficient to support a view that the government agents merely provided Miller with an opportunity to violate the law, which opportunity he readily accepted on two occasions.

Appellant's next contention is that he merely acted as the agent of the government officer and informer in securing the heroin and therefore could not be guilty of knowingly and intentionally distributing it in violation of Section 841(a) (1). This contention fails in...