278 F2d 841 Jones v. United States

278 F.2d 841

Isaac Booker T. Washington JONES, Appellant,
v.
UNITED STATES of America, Appellee.

No. 18210.

United States Court of Appeals Fifth Circuit.

May 31, 1960.

G. W. Gill, New Orleans, La., for appellant.

Prim B. Smith, Jr., Asst. U. S. Atty., New Orleans, La., for appellee.

Before HUTCHESON, JONES and WISDOM, Circuit Judges.

PER CURIAM.

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1

The appellant was charged in a bill of information with nine counts relating to the violation of the Harrison Narcotic Act, 26 U.S.C.A. § 4701 et seq. and the Narcotic Import Act, 21 U.S.C.A. § 171 et seq.

2

Count 1 alleged the purchase of thirteen capsules of heroin on April 15, 1959. Count 2 alleged the sale of the same capsules on the same day. Count 3 alleged the concealment of them on the same date.

3

Count 4 alleged the purchase of seventeen capsules of heroin on April 20, 1959. Count 5 alleged the sale of the same capsules on the same date, and Count 6 alleged the concealment on the same date.

4

Count 7 alleged the purchase of nine capsules of heroin on May 8, 1959. Count 8 alleged the sale of the same capsules on the same date, and Count 9 alleged their concealment on the same date.

5

The Court directed a verdict of acquittal as to all counts except the sale counts, 2, 5, and 8. The jury returned a verdict of not guilty as to Count 2 and guilty as to Counts 5 and 8.

6

Appealing from the judgment and sentence on these two counts, defendant is here insisting that it was error to deny his motion for a directed verdict because, as to Count 5, the evidence was insufficient to justify its submission to the jury, and, as to Count 8, the evidence established as matter of law that defendant was entrapped into committing the offense. In further support of his claim of error as to Count 5, appellant insists that, since the jury found him not guilty as to Count 2, a verdict of guilty on Count 5 on substantially the same facts was completely inconsistent.

7

We are unable to agree with these views. On the contrary we think the evidence is ample to support the finding of the jury that defendant was guilty of the offenses charged in Count 5, and that there is nothing of substance in his claim of inconsistency in the verdicts on Counts 2 and 5. Of defendant's contention that, within the teaching of Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413; Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848, and Henderson v. United States, 5 Cir., 261 F.2d 909, he was the victim of entrapment, it is sufficient to say that the evidence in this case does not bring it within the reach of those cases. The cases controlling here are Accardi v. United States, 5 Cir., 257 F.2d 168, Kivette v. United States, 5 Cir., 230 F.2d 749, and Lathem v. United States, 5 Cir., 259 F.2d 393.

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8

We find no error in the judgment. It is affirmed.