United States of America, Plaintiff and Appellee, v. James Daniels, Jr., Defendant and Appellant, 412 F.2d 317 (9th Cir. 1969)

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U.S. Court of Appeals for the Ninth Circuit - 412 F.2d 317 (9th Cir. 1969) June 9, 1969
Rehearing Denied July 23, 1969

Andrew P. Smirnoff (argued), San Francisco, Cal., for appellant.

Jerrold Ladar (argued), Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., John Bartko, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before CHAMBERS, KOELSCH and BROWNING, Circuit Judges.

CHAMBERS, Circuit Judge:

In this narcotics conviction, first we reject a contention that there was entrapment as a matter of law.

One Dukes, himself caught by government agents, was "cooperating" with them in "making a case" against Daniels. As part of the plan to catch Daniels, Dukes conducted in Daniels' home negotiations for the purchase of narcotics. Dukes had on his person, unknown to Daniels, a Fargo electronic transmitter placed there by the agents who listened to the conversations of Dukes and Daniels.

We were asked on this appeal to find this conduct proscribed by Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576. Now Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 248, decided March 24, 1969, has informed us that Katz is to be applied to fruits obtained after December 18, 1967. The jury found Daniels guilty on October 13, 1967.

Of course, what Dukes did was sneaky and not the act of a gentleman, but we do not believe he was offending the Fourth Amendment of the Constitution.

Other points briefed, we find without merit.

Judgment affirmed.