United States v. Salas, No. 190

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtMOORE, SMITH and HAYS, Circuit
Citation387 F.2d 121
PartiesUNITED STATES of America, Appellee, v. George Silva SALAS and Pappy Fuentes, Defendants-Appellants.
Decision Date19 December 1967
Docket NumberNo. 190,Docket 30348.

387 F.2d 121 (1967)

UNITED STATES of America, Appellee,
v.
George Silva SALAS and Pappy Fuentes, Defendants-Appellants.

No. 190, Docket 30348.

United States Court of Appeals Second Circuit.

Argued November 28, 1967.

Decided December 19, 1967.


Carol Ryan, New York City (Anthony F. Marra, New York City, on the brief), for appellants.

John A. Stichter, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, and Roger J. Hawke, Asst. U. S. Atty., on the brief), for appellee.

Before MOORE, SMITH and HAYS, Circuit Judges.

HAYS, Circuit Judge:

Appellant Salas was convicted on three counts and appellant Fuentes was convicted on one count of selling narcotics in violation of 26 U.S.C. §§ 4705(a) and 7237(b) after a trial before the Honorable Thomas F. Murphy and a jury. We affirm the judgments of conviction.

387 F.2d 122

Appellants contend that the trial court erred in its charge to the jury in the following respects: (1) In failing to charge that the government had the burden of proving beyond a reasonable doubt that the appellants were not entrapped; (2) in failing to charge that the jury could find Fuentes not guilty by reason of entrapment even though it found Salas guilty on the same count; (3) in commenting in connection with defendants' testimony on their special interest without at the same time charging on the special interest of the informant. Appellant Salas also asserts that, because his first conviction was pardoned, he should not have been sentenced as a second offender.

(1) The charge on burden of proof was correct and was broad enough to cover the issue of entrapment. No request was made for an instruction on (2) until after the charge to the jury had been completed. There was no abuse of discretion in denying this belated request. See United States v. Kahaner, 317 F.2d 459, 477 (2d Cir.), cert. denied, 375 U.S. 836, 84 S.Ct. 73, 11 L.Ed.2d 65 (1963); United States v. Strassman, 241 F.2d 784, 786-787 (2d Cir. 1957). As to (3) above, no sufficient objection was raised to the charge as given.

It appears that there is no federal case determining the effect of a pardon of an earlier conviction on the sentence for a subsequent offense.1 State cases have held that a prior conviction, though pardoned, is to be counted in determining the sentence under multiple offender laws. See People ex rel. Prisament v. Brophy, 287 N.Y. 132, 38 N.E.2d 468, 139 A.L.R. 667 (1941), cert. denied, 317 U.S. 625, 63 S.Ct. 62, 87...

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13 practice notes
  • United States v. Martinez-Torres, No. SSS 82 CR. 489 (CBM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 11, 1983
    ...340, 347 (2d Cir.), cert. denied, 435 U.S. 995, 98 S.Ct. 1647, 56 L.Ed.2d 84 (1978); see 556 F. Supp. 1259 also United States v. Salas, 387 F.2d 121, 122 (2d Cir.), cert. denied, 393 U.S. 863, 89 S.Ct. 145, 21 L.Ed.2d 131 (1967) (denial of request for instruction was not an abuse of discret......
  • State v. Clifton, No. COA95-1335
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • March 4, 1997
    ...State v. Stern, 210 Minn. 107, 297 N.W. 321, 322-23 (1941); People v. Biggs, 9 Cal.2d 508, 71 P.2d 214 (1937); United States v. Salas, 387 F.2d 121, 122 (2d Cir.1967); Groseclose v. Plummer, 106 F.2d 311, 314 (9th Cir.1939). One reason stated for this view is that "increased punishment......
  • State v. McNulty, No. 5978
    • United States
    • Supreme Court of Hawai'i
    • December 28, 1978
    ...the general instructions given on the burden of proof to be broad enough to have covered the issue of entrapment. United States v. Salas, 387 F.2d 121 (C.A. 2, 412 F.2d at 1149 (footnote omitted). 8 We hold that appellant would have been entitled, upon proper request, to have the trial cour......
  • United States v. Chicarelli, No. 19190
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 1, 1971
    ...544 (1964); Wegman v. United States, 272 F.2d 31, 34-35 (8th Cir. 1959). See F.R.Crim.P. 30 & 52(b); cf. United States v. Salas, 387 F.2d 121 (2d Cir. 1967), cert. denied, 393 U.S. 863, 89 S.Ct. 145, 21 L.Ed.2d 131 (1968). In the Provenzano case, Judge Biggs used this language at 690 of......
  • Request a trial to view additional results
13 cases
  • United States v. Martinez-Torres, No. SSS 82 CR. 489 (CBM).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • January 11, 1983
    ...340, 347 (2d Cir.), cert. denied, 435 U.S. 995, 98 S.Ct. 1647, 56 L.Ed.2d 84 (1978); see 556 F. Supp. 1259 also United States v. Salas, 387 F.2d 121, 122 (2d Cir.), cert. denied, 393 U.S. 863, 89 S.Ct. 145, 21 L.Ed.2d 131 (1967) (denial of request for instruction was not an abuse of discret......
  • State v. Clifton, No. COA95-1335
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • March 4, 1997
    ...State v. Stern, 210 Minn. 107, 297 N.W. 321, 322-23 (1941); People v. Biggs, 9 Cal.2d 508, 71 P.2d 214 (1937); United States v. Salas, 387 F.2d 121, 122 (2d Cir.1967); Groseclose v. Plummer, 106 F.2d 311, 314 (9th Cir.1939). One reason stated for this view is that "increased punishment......
  • State v. McNulty, No. 5978
    • United States
    • Supreme Court of Hawai'i
    • December 28, 1978
    ...the general instructions given on the burden of proof to be broad enough to have covered the issue of entrapment. United States v. Salas, 387 F.2d 121 (C.A. 2, 412 F.2d at 1149 (footnote omitted). 8 We hold that appellant would have been entitled, upon proper request, to have the trial cour......
  • United States v. Chicarelli, No. 19190
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 1, 1971
    ...544 (1964); Wegman v. United States, 272 F.2d 31, 34-35 (8th Cir. 1959). See F.R.Crim.P. 30 & 52(b); cf. United States v. Salas, 387 F.2d 121 (2d Cir. 1967), cert. denied, 393 U.S. 863, 89 S.Ct. 145, 21 L.Ed.2d 131 (1968). In the Provenzano case, Judge Biggs used this language at 690 of......
  • Request a trial to view additional results

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