John Lowell Hannah, John Jerald Hannah, and Billy Arch Hardaway v. United States

Fifth Circuit

John Lowell Hannah, John Jerald Hannah, and Billy Arch Hardaway v. United States

396 F.2d 785

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 14, 1968

Docket24982

StatusPublished

Cited by9 cases

This text of 396 F.2d 785 (John Lowell Hannah, John Jerald Hannah, and Billy Arch Hardaway v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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John Lowell Hannah, John Jerald Hannah, and Billy Arch Hardaway v. United States, 396 F.2d 785 (5th Cir. 1968).

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PER CURIAM:

The appeal is from judgments of conviction of the three appellants, defendants on two counts of an indictment. The first count charged them with knowingly and unlawfully possessing and transporting 750 gallons of distilled spirits in violation of 26 U.S.C. 5205(a) (2) and 5604(a) (1). The second count charged them with knowingly removing 750 gallons of distilled spirits, on which the tax had not been paid or determined, from the place of manufacture or storage in violation of 26 U.S.C. 5601(a) (12). The only contention on appeal is that the district court erred in denying the defendants’ motions for a judgment of acquittal as to each defendant solely [786]*786on the ground that as a matter of law each defendant was entrapped.

The district court submitted to the jury the issue of entrapment on instructions, to which the defendants did not and do not object. We adhere to the following holding in Kivette v. United States, 5 Cir. 1956, 230 F.2d 749, 754:

“The question whether a defendant was lured by the agent into crime or was merely afforded an apparently safe opportunity to commit it is one of fact for the jury to decide. As analyzed by Judge Learned Hand:

‘Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first question the accused has the burden; on the second the prosecution has it.’ United States v. Sherman, 2 Cir., 200 F.2d 880, 882-883.”

We hold as to each defendant that on both of such questions of fact the issue was for the jury. On the second question especially there was abundant evidence from which the jury could find that each of the defendants was ready and willing without persuasion and was simply awaiting any propitious opportunity to commit the offenses. No error appearing, the judgments of conviction are

Affirmed.

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PER CURIAM:

The appeal is from judgments of conviction of the three appellants, defendants on two counts of an indictment. The first count charged them with knowingly and unlawfully possessing and transporting 750 gallons of distilled spirits in violation of 26 U.S.C. 5205(a) (2) and 5604(a) (1). The second count charged them with knowingly removing 750 gallons of distilled spirits, on which the tax had not been paid or determined, from the place of manufacture or storage in violation of 26 U.S.C. 5601(a) (12). The only contention on appeal is that the district court erred in denying the defendants’ motions for a judgment of acquittal as to each defendant solely [786]*786on the ground that as a matter of law each defendant was entrapped.

The district court submitted to the jury the issue of entrapment on instructions, to which the defendants did not and do not object. We adhere to the following holding in Kivette v. United States, 5 Cir. 1956, 230 F.2d 749, 754:

“The question whether a defendant was lured by the agent into crime or was merely afforded an apparently safe opportunity to commit it is one of fact for the jury to decide. As analyzed by Judge Learned Hand:

‘Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offence. On the first question the accused has the burden; on the second the prosecution has it.’ United States v. Sherman, 2 Cir., 200 F.2d 880, 882-883.”

We hold as to each defendant that on both of such questions of fact the issue was for the jury. On the second question especially there was abundant evidence from which the jury could find that each of the defendants was ready and willing without persuasion and was simply awaiting any propitious opportunity to commit the offenses. No error appearing, the judgments of conviction are

Affirmed.

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396 F.2d 785, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-lowell-hannah-john-jerald-hannah-and-billy-arch-hardaway-v-united-ca5-1968.

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