397 F2d 406 Matherne v. United States

397 F.2d 406

Alfred Lee MATHERNE, Appellant,
UNITED STATES of America, Appellee.

No. 23490.

United States Court of Appeals Fifth Circuit.

June 28, 1968,
Certiorari Denied Dec. 9, 1968,

James David McNeill, New Orleans, La., for appellant.

John C. Ciolino, Harry Connick, H. P. Rowley, III, New Orleans, La., for appellee.

Before WISDOM and COLEMAN, Circuit Judges, and COMISKEY, District Judge.


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The appellant was found guilty on two counts in violation of Title 26 U.S.C. 4704(a) and 4705(a) relative to narcotics. The contention on appeal is that the district court erred in denying appellant's motion to suppress evidence of the sale as being the product of an illegal entrapment, and secondly in the denial of the appellant's motion for a judgment of acquittal since the facts established as a matter of law an unlawful entrapment.


The district judge submitted to the jury the issue of entrapment as a fact question with proper instructions. We agree that the defense of entrapment was a fact question and should have gone, and did go, to the jury who resolved it against the defendant. See Hannah v. United States, 5 Cir. 1968, 396 F.2d 785 (May 2, 1968); Suarez v. United States, 5 Cir. 1962, 309 F.2d 709; Kivette v. United States, 5 Cir. 1956, 230 F.2d 749.


No error appearing, the judgment of conviction is