374 F2d 888 Shaw v. United States
374 F.2d 888
Maurice Raymond SHAW, Appellant,
UNITED STATES of America, Appellee.
United States Court of Appeals Ninth Circuit.
March 17, 1967.
Michael L. Ohleyer, San Francisco, Cal., Richard G. Tatus, San Diego, Cal., for appellant.
Edwin L. Miller, Jr., U.S. Atty., She-by R. Gott, Asst. U.S. Atty., San Diego, Cal., for appellee.
Before CHAMBERS, BARNES and BROWNING, Circuit Judges.
This is an appeal from a two count conviction of the possession of heroin. Appellant urges error in that (a) there should have been an instruction given, sua sponte, on entrapment (though none was offered), (b) there was error in the action of the Government counsel in allegedly exhibiting an alleged 'make sheet' on defendant so that the jury 'may' have observed it.
The defense in the court below was mistaken identity-- not entrapment. A defense lawyer relying on mistaken identity, as a matter of trial strategy, would not ordinarily favor the giving of an instruction by a judge, on his own motion, on entrapment. No instruction on entrapment was offered, and none required.
The trial court disposed of counsel's second alleged error. No record was made sufficient to raise the question on this appeal.