Guillermo Serna Jasso, Appellant, v. United States of America, Appellee, 290 F.2d 671 (5th Cir. 1961)

By this test, unquestionably appellant was not a mere sub-agent or conduit, but having made all arrangements with the delivery man for the smuggling of the narcotics and continuing to participate throughout when there was no apparent need to do so it would indicate that he had a stake in the venture, thereby making himself more than a mere sub-agent or conduit. In this connection, again quoting from Judge Learned Hand in United States v. Sherman, 2 Cir., 1952, 200 F.2d 880, offering of inducements were proper where (1) there was an existing course of similar criminal conduct, (2) the accused had already formed a design to commit the crime, or (3) his willingness to do so was evidenced by ready complaisance. All three of these factors were present in this case.

Then, too, Hernandez testified that immediately after the delivery of the contraband in question here appellant offered to supply large quantities of heroin to Hernandez conditioned that Hernandez would pay him, the appellant, one-half the purchase price in advance. This statement was testified to by Hernandez in appellant's presence and before appellant took the witness stand in his own defense. It is extremely significant that when appellant did thereafter take the witness stand he did not deny having made such a proposition to Hernandez. It was therefore not error to deny appellant's motion for acquittal. Too, this motion for acquittal was made after the Government had rested. It was not again urged at the conclusion of all of the testimony. As a result of appellant's failure to urge at the conclusion of all of the testimony, he thereby waived the motion for an instructed verdict. See Moomaw v. United States, 5 Cir., 1955, 220 F.2d 589; Fallen v. United States, 5 Cir., 1955, 220 F.2d 946; Meeks v. United States, 5 Cir., 1958, 259 F.2d 328; Coronado v. United States, 5 Cir., 266 F.2d 719, 721; Rule 29 F.R.Crim.P., 18 U.S.C.A.

In the Coronado case, supra, the court said:

"* * * The law is settled that entrapment is a question for the jury to decide, unless the evidence is so clear and convincing that it can be passed on by the trial judge as a matter of law. 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; Accardi v. United States, 5 Cir., 1958, 257 F.2d 168."

The second point urged by appellant was that he was a mere sub-agent or conduit for the Government as a matter of law. In view of his active participation, as set forth under the preceding point, and his receiving of payment after the heroin had been smuggled into this country, his contention is untenable. Surely he facilitated the illegal transaction, as that term is used in the statute. Quoting from Rios v. United States, 9 Cir., 283 F.2d 134, 136:

"`Facilitate,' as used in this statute (21 U.S.C.A., § 174), has been defined as follows: `to make easy or less difficult; to free from difficulty or impediment; as to facilitate the execution of a task.' Cellino v. United States, 9 Cir., 1960, 276 F.2d 941, 943; Bruno v. United States, 9 Cir., 1958, 259 F.2d 8; Pon Wing Quong v. United States, 9 Cir., 1940, 111 F.2d 751."

In this case, not only did he facilitate the sale, but also he alone arranged for the illegal importation.

The third point raised by the appellant is that the trial court's charge on entrapment was erroneous. Particular objection is made to that portion of the court's charge on entrapment which reads as follows:

"On the other hand, if this be true, as this defendant has above testified, that heretofore he has been free of narcotic traffic, that he, as an innocent man, was urged and begged and entreated by someone, who was acting in the employ of the government officers, to commit this crime, he would not have done so otherwise, and he has not done so before, and solely by reason of the activity of the government agents in putting him up to it, so to speak, has he fallen into the toils of the law, then that would be unlawful entrapment on the part of the officers and the defendant would be entitled to a verdict of not guilty." (Emphasis supplied.)

A complete answer to this proposition is found in the case of Hamilton v. United States, 5 Cir., 1955, 221 F.2d 611, 613, wherein the court ruled that the following was a proper instruction and should have been given:

"The defense of entrapment is a good one in law and arises under certain circumstances. Where a defendant charged with the unlawful sale of marijuana was not and had never been a dealer in marijuana, had never sold any before, nor conceived an intention to do so, but was induced by the Government agent to sell to him, the whole transaction being a device of the narcotic agent who furnished the money to entrap, arrest and prosecute him, then the jury is instructed to find the defendant `not guilty'." (Emphasis supplied.)

The trial court gave a full, fair, clear and correct charge on the doctrine of entrapment. See also the case of Masciale v. United States, 1958, 356 U.S. 386, 78 S. Ct. 827, 2 L. Ed. 2d 859.

Our opinion does not mean that where a person who was formerly engaged in the narcotics business but who has completely reformed and has no intention of again entering it cannot be subject to entrapment. Such a person could.

The fourth point appellant raises is that the trial court committed error in refusing appellant's requested instruction number four with reference to appellant being a mere sub-agent or conduit of the Government. What has been said heretofore under the first alleged errors with reference to appellant's active participation is here applicable and is therefore unnecessary to repeat. This complaint of error is without merit and is overruled.

The fifth alleged error by the trial court is that the court, over appellant's objection, admitted inadmissible evidence to the effect that a known narcotics dealer had visited appellant's house shortly before August 3, 1959. At the time that this testimony was admitted, appellant had testified and urged as his defense entrapment. It therefore became relevant and admissible because, as the Supreme Court said in the often cited case of Sorrells v. United States, 1932, 287 U.S. 435, 451, 53 S. Ct. 210, 216, 77 L. Ed. 413:

"The government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused, and if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue. If in consequence he suffers a disadvantage, he has brought it upon himself by reason of the nature of the defense." (Emphasis supplied.)

The last proposition relied upon by the appellant is that it was improper to admit into evidence circumstances of the arrest of the appellant's brother for a narcotics offense and also with reference as to whether or not he was convicted for carrying a concealed weapon in Chicago. This information with reference to the possession of a gun was first mentioned by appellant and was not in response to any question asked him but was volunteered. The statement however was withdrawn and no ruling thereon is involved here.

Finding no reversible error and that there was substantial evidence to support the jury verdict of guilty on both counts, the judgment of conviction is

Affirmed.