Elijah Smith v. United States

293 F.2d 532, 110 U.S. App. D.C. 344, 1961 U.S. App. LEXIS 4202

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 15, 1961
• Docket: 16028_1
• Status: Published

Opinion

PER CURIAM.

Appellant’s conviction on fourteen counts of an indictment under the Narcotics laws 1 was based solely on the testimony of a young undercover police officer who circulated among young people, as “one of them,” in “beatnik” establishments. Counts 1 and 2, relating to the first transaction between the officer and appellant, involved two marihuana cigarettes for which the officer gave no money to appellant; Counts 3 and 4 involved marihuana for which the officer gave $5.00 to appellant and which was used by appellant and another; Counts 5 and 6 involved heroin for which the officer gave appellant $6.00 and $1.00 for taxicab fare; Counts 9, 10 and 11 involved heroin for which the officer gave appellant $6.00 and 50 cents for streetcar fare; Counts 12, 13 and 14 involved heroin for which the officer gave appellant $6.00; and Counts 7 and 8 involved marihuana for which the officer gave appellant $20.00 and which appellant and others were preparing to smoke when the arresting officers appeared.

The sole defense at trial was entrapment — that under the cloak of friendship the officer induced appellant to procure the marihuana and heroin for him. Appellant contends that upon the evidence of entrapment he was entitled to a directed verdict of acquittal. We think, however, that under governing case law the issue was properly submitted to the jury. 2 Nor do we find any basis for reversal in the other objections raised by appellant.

Affirmed.

1 . 26 U.S.C. §§ 4704(a), 4705(a), 4742 (a), 4744(a), and 21 U.S.C.A. § 174. Appellant was sentenced to imprisonment of five years on each of Counts 1, 3, 5, 7, 9, 11, 12 and 14, and to eight ^months to two years on each of the other counts. All the sentences were to run concurrently. Violations of 26 U.S.C. §§ 4705 (a) and 4742(a) are punishable by a mandatory minimum sentence of five years. 26 U.S.C. § 7237(b). The same is true of violations of 21 U.S.C.A. § 174.

2 . Sorrells v. United States, 1932, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Trent v. United States, 1960, 109 U.S.App.D.C. 152, 284 F.2d 286, certiorari denied 1961, 365 U.S. 889, 81 S.Ct. 1035, 6 L.Ed.2d 199. Cf. Sherman v. United States, 1958, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848.