388 F2d 680 Notaro v. United States

388 F.2d 680

Rudy L. NOTARO, Appellant,
v.
UNITED STATES of America, Appellee.

No. 21691.

United States Court of Appeals Ninth Circuit.

December 27, 1967.

Raymond E. Sutton, Las Vegas, Nev., for appellant.

Joseph L. Ward, U. S. Atty., Robert S. Linnell, Asst. U. S. Atty., Las Vegas, Nev., for appellee.

Before HAMLEY, HAMLIN, and ELY, Circuit Judges.

PER CURIAM:

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1

In a nonjury trial, Notaro was convicted of having unlawfully sold approximately three and one-half ounces of marijuana. 21 U.S.C. § 176a.

2

He had previously been found guilty by a jury, but we were compelled to set aside the judgment of conviction which followed that finding. Notaro v. United States, 363 F.2d 169 (9th Cir. 1966).

3

In the present appeal, the only contention is to the effect that the district judge should have held, as a matter of law, that the Government entrapped Notaro into the commission of the offense. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). The appellant made the same argument in his first appeal. We rejected it, holding that the evidence bearing upon the issue was so conflicting as to require a factual determination. 363 F.2d at 172-73.

4

Now the District Court has resolved the issue, basing its determination primarily upon the expressed belief that Notaro's "testimony was discredited." While the appellant does not contend that the evidence under review is remarkably different from that which was produced at the first trial, we have examined it. We are not persuaded that we should alter our previously expressed opinion as to its sufficiency.

5

Affirmed.