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434 F2d 247 United States v. Riley

434 F.2d 247

UNITED STATES of America, Plaintiff-Appellee,
v.
Sylvester RILEY, Defendant-Appellant.

No. 25671.

United States Court of Appeals, Ninth Circuit.

Nov. 10, 1970.

Barry Tarlow (argued), Los Angeles, Cal., for defendant-appellant.

Richard L. Jaeger (argued), Asst. U.S. Atty., Robert L. Meyer, U.S. Atty., David R. Nissen, Chief, Criminal Division, Los Angeles, Cal., for plaintiff-appellee.

Before BROWNING, CARTER, and KILKENNY, Circuit Judges.

PER CURIAM:

1

The trial court undertook to hear and decide the defense of entrapment itself. After considering evidence received at a hearing outside the presence of the jury, the court rejected the defense and declined to submit it to the jury. The government concedes that this was error (see Erwing v. United States, 394 F.2d 829, 830 (9th Cir. 1968)), but contends that the error was harmless because (1) the evidence was insufficient to raise the issue of entrapment, and (2) even if it was sufficient to go to the jury, 'the testimony of defendant was so filled with inconsistencies and contradictions that the jury could have only reached the same result as that reached by the Trial Judge, to wit, the defendant was to be disbelieved.'

2

We think the defendant's testimony, taken as true, was sufficient to require submission of the issue of entrapment to the jury. This being so, the defendant's credibility was for the jury, not the trial court or this court, to decide.

3

Reversed.