United States of America, Plaintiff-appellee, v. Jon Patrick Donell, Defendant-appellant, 469 F.2d 85 (9th Cir. 1972)

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US Court of Appeals for the Ninth Circuit - 469 F.2d 85 (9th Cir. 1972) Oct. 30, 1972

Bert E. Green (argued), San Francisco, Cal., Ronald V. Olds, Pasadena, Cal., for defendant-appellant.

Joel Levine, Asst. U. S. Atty. (argued), Eric A. Nobles, Asst. U. S. Atty., William D. Keller, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before BARNES and DUNIWAY, Circuit Judges, and JAMESON,*  District Judge.


In this four count indictment for passing and transferring counterfeit money, we hold there existed substantial evidence sufficient to convict the appellant on Counts One and Two if the trier of fact believed the informer Brooms.

The jury verdict indicates that it did believe Brooms. "It is not for us to weigh the evidence or to determine the credibility of witnesses. The verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it." Glasser v. United States, 315 U.S. 60, 80, 62 S. Ct. 457, 469, 86 L. Ed. 680 (1942).

The consent to the telephone conversation between Brooms and appellant with respect to the second transaction was willingly given by Brooms. He had the motive to help himself, but no proof of coercion exists, and the trier of fact so found. The case of Weiss v. United States, 308 U.S. 321, 60 S. Ct. 269, 84 L. Ed. 298 (1939) differs on its facts.

The appellant was not entrapped. That defense was not raised below, and cannot now be raised on appeal. United States v. Priest, 419 F.2d 570 (10th Cir. 1970). Defendant never admitted during the trial he passed or transferred the counterfeit money. United States v. Hendricks, 456 F.2d 167 (9th Cir. 1972).



The Honorable William J. Jameson, United States District Judge, of Montana, sitting by designation