The Government of the Canal Zone, Petitioner-appellee, v. Calvin Charles R. (risbrook), Respondent-appellant, 454 F.2d 725 (5th Cir. 1972)

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US Court of Appeals for the Fifth Circuit - 454 F.2d 725 (5th Cir. 1972) Feb. 4, 1972

W. J. Sheridan, Jr., Balboa Heights, Canal Zone, for respondent-appellant.

Lester Engler, U. S. Atty., Thomas E. Haney, Wallace D. Baldwin, Asst. U. S. Attys., Balboa, Canal Zone, for petitioner-appellee.

Before BELL, DYER and CLARK, Circuit Judges.

PER CURIAM:


Entrapment is the sole issue raised by Risbrook in this appeal. Having testified that he never dispensed cocaine or possessed marijuana with intent to dispense it in violation of 21 U.S.C.A. Sec. 841(a) (1), Risbrook nevertheless contends that he was entrapped. The district court, sitting without a jury, held that under these circumstances this defense was not available, and there being abundant proof of Risbrook's guilt he was convicted of the offenses charged. We affirm.

When the defendant denies on the stand the very acts upon which the prosecution is predicated, the defense for entrapment is not available. This is so because such "a denial is inconsistent with the defense, which assumes that the act charged was committed." United States v. Groessel, 5 Cir. 1971, 440 F.2d 602, United States v. Crowe, 5 Cir. 1970, 430 F.3d 670, United States v. Pickle, 5 Cir. 1970, 424 F.2d 528.

Affirmed.

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Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I