362 F2d 804 Ortega-Romero v. United States

362 F.2d 804

Antonio ORTEGA-ROMERO, Appellant,
v.
UNITED STATES of America, Appellee.

No. 20025.

United States Court of Appeals Ninth Circuit.

June 22, 1966.

Henry O. Noffisinger, San Francisco, Cal., for appellant.

Manuel L. Real, U.S. Atty., John K. Van de Kamp, Asst. U.S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U.S. Atty., Asst. Chief, Crim. Div., Phillip W. Johnson, Asst. Atty., Los Angeles, Cal., for appellee.

Before BARNES and BROWNING, Circuit Judges, and THOMPSON, District judge.

PER CURIAM.

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1

The issue of entrapment was not raised in the court below by this appealing defendant. His counsel deliberately waived it as a matter of trial strategy both in the trial of the case and in his argument to the jury. That this was consciously done is established by the tenor of the argument to the jury commenting on the issue of entrapment as raised by the codefendant.

2

We hold there was no entrapment as a matter of law, and that the defendant, by reason of his defense, was in no position to ask for an instruction on entrapment. (Cf. Garibay-Garcia v. United States, 9 Cir., 362 F.2d 509, decided May 23, 1966, and cases cited.)

3

No other point raised on appeal was well taken.

4

Affirmed.