United States v. Freddie Moore

Ninth Circuit

United States v. Freddie Moore

429 F.2d 1305, 1970 U.S. App. LEXIS 7632

CourtCourt of Appeals for the Ninth Circuit

DecidedAugust 20, 1970

Docket24925_1

StatusPublished

Cited by10 cases

This text of 429 F.2d 1305 (United States v. Freddie Moore) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Freddie Moore, 429 F.2d 1305, 1970 U.S. App. LEXIS 7632 (9th Cir. 1970).

Pincite

Opinion

DUNIWAY, Circuit Judge:

Moore was charged in a three-count indictment with concealment of illegally imported narcotics and illegal sale of narcotics, violations of 21 U.S.C. § 174, and with illegal transfer of narcotics in violation of 26 U.S.C. § 4705. He was convicted on all three counts. We affirm.

1. Entrapment.

Moore argues that entrapment was established as a matter of law. Had the jury chosen to accept Moore's story, it could have found entrapment. But there was also substantial evidence on the basis of which the jury could find, beyond a reasonable doubt, that while the government afforded Moore an opportunity to commit the offenses, nevertheless, Moore was not subjected by the government to “persuasion or pressure * * * which induce[d]” him to commit the offenses when he “had no predisposition to do so.” United States v. Walton, 9 Cir. 1969, 411 F.2d 283, 288.

2. The Allen instruction.

Moore argues that it was error to give the so-called Allen or dynamite instruction after the jury had indicated inability to reach a unanimous verdict. On this record, the point is not available. Appellant’s counsel examined the instruction now objected to before it was read to the jury. He did not object to it; he expressly approved it. Rule 30, F.R.Crim. P. The challenged instruction is identical in every material respect to that approved by this court in Dearinger v. United States, 9 Cir., 1967, 378 F.2d 346, cert. denied 389 U.S. 885, 88 S.Ct. 156, 19 L.Ed.2d 183, and is substantially similar to those approved in Sullivan v. *1307 United States, 9 Cir., 1969, 414 F.2d 714; Christy v. United States, 9 Cir., 1959, 261 F.2d 357; and Hutson v. United States, 9 Cir., 1956, 238 F.2d 167.

Moreover, the record indicates that the jury was not coerced by the instruction. The jury did not reach a verdict immediately after receiving the instruction. During its further deliberations, it asked to hear again, and did hear, the testimony of all the witnesses. Only after that did it retire for a second time and finally reach a verdict. Rather than submitting to “coercion,” the jury discharged its duty in a conscientious and laudable fashion.

Moore’s application for bail pending appeal, filed August 5, 1970, is denied.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

DUNIWAY, Circuit Judge:

Moore was charged in a three-count indictment with concealment of illegally imported narcotics and illegal sale of narcotics, violations of 21 U.S.C. § 174, and with illegal transfer of narcotics in violation of 26 U.S.C. § 4705. He was convicted on all three counts. We affirm.

1. Entrapment.

Moore argues that entrapment was established as a matter of law. Had the jury chosen to accept Moore's story, it could have found entrapment. But there was also substantial evidence on the basis of which the jury could find, beyond a reasonable doubt, that while the government afforded Moore an opportunity to commit the offenses, nevertheless, Moore was not subjected by the government to “persuasion or pressure * * * which induce[d]” him to commit the offenses when he “had no predisposition to do so.” United States v. Walton, 9 Cir. 1969, 411 F.2d 283, 288.

2. The Allen instruction.

Moore argues that it was error to give the so-called Allen or dynamite instruction after the jury had indicated inability to reach a unanimous verdict. On this record, the point is not available. Appellant’s counsel examined the instruction now objected to before it was read to the jury. He did not object to it; he expressly approved it. Rule 30, F.R.Crim. P. The challenged instruction is identical in every material respect to that approved by this court in Dearinger v. United States, 9 Cir., 1967, 378 F.2d 346, cert. denied 389 U.S. 885, 88 S.Ct. 156, 19 L.Ed.2d 183, and is substantially similar to those approved in Sullivan v. *1307 United States, 9 Cir., 1969, 414 F.2d 714; Christy v. United States, 9 Cir., 1959, 261 F.2d 357; and Hutson v. United States, 9 Cir., 1956, 238 F.2d 167.

Moreover, the record indicates that the jury was not coerced by the instruction. The jury did not reach a verdict immediately after receiving the instruction. During its further deliberations, it asked to hear again, and did hear, the testimony of all the witnesses. Only after that did it retire for a second time and finally reach a verdict. Rather than submitting to “coercion,” the jury discharged its duty in a conscientious and laudable fashion.

Moore’s application for bail pending appeal, filed August 5, 1970, is denied.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

429 F.2d 1305, 1970 U.S. App. LEXIS 7632, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-freddie-moore-ca9-1970.

Opinion

1. Entrapment.

2. The Allen instruction.

Related

Cite This Page — Counsel Stack