459 F2d 79 United States v. Short

459 F.2d 79

UNITED STATES of America, Plaintiff-Appellee,
Leroy SHORT, Defendant-Appellant.

No. 71-3324 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

April 18, 1972.

Trammell F. Shi, Macon, Ga. (Court-Appointed), for defendant-appellant.

William J. Schloth, U. S. Atty., Ronald T. Knight, Asst. U. S. Atty., Macon, Ga., for plaintiff-appellee.

Before WISDOM, GODBOLD and RONEY, Circuit Judges.


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The appellant, Leroy Short, was convicted by a jury of two counts of selling whiskey without the required tax stamp in violation of 26 U.S.C. Secs. 5205(a) (2) and 5604(a) and one count of possessing whiskey which did not bear the required tax stamp in violation of 26 U.S.C. Secs. 5205(a) (2) and 5604(a). On appeal, Short contends that the district court erred in denying his motion for judgment of acquittal, that the verdict was contrary to the law and the evidence, and that the court erred in refusing to instruct the jury on the defense of entrapment.


Taking the view of the evidence most favorable to the Government, as we must, we hold that there was substantial evidence to support the jury's verdict. Glasser v. United States, 1944, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680. The district court did not err in denying Short's motion for judgment of acquittal and the jury's verdict was not contrary to the law and the evidence.


As to the defense of entrapment, on the facts of this case the district judge was correct in his refusal to instruct on that defense. The facts of this case did not raise an issue of entrapment for the jury to decide. See Pierce v. United States, 5 Cir. 1969, 414 F.2d 163, cert. denied, 396 U.S. 960, 90 S.Ct. 435, 24 L.Ed.2d 425.


The judgment is affirmed.

GODBOLD, Circuit Judge (specially concurring):


I concur in the result. Under the rule of this Circuit, the defense of entrapment was not available to the defendant because he denied commission of the acts constituting the offense. United States v. Crowe, 430 F.2d 670 (5th Cir. 1970), and authorities there cited. Pierce v. United States, cited by the majority, concerned the necessity, or lack of necessity, for giving instructions where the defense of entrapment is available. That question is inappropriately reached in this case.


Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I