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502 F2d 585 United States v. Henley 74-1238

502 F.2d 585

UNITED STATES of America, Plaintiff-Appellee,
v.
Paul Darrell HENLEY and Stanley Paul Rutkowski, Defendants-Appellants.
No. 74-1238 Summary Calendar.*
*Rule 18, 5th Cir., see Isbell Enterprises, Inc.
v.
Citizens Casualty Co. of New York et al., 431 F.2d 409, Part
I (5th Cir.1970).

United States Court of Appeals, Fifth Circuit.

Oct. 9, 1974, Rehearing and Rehearing En Banc Denied Dec. 16, 1974.

John D. Shofi, Tampa, Fla. (Court-appointed), for Henley.

Raymond E. LaPorte, Tampa, Fla., for Rutkowski.

John L. Briggs, U.S. Atty., Jacksonville, Fla., D. Frank Winkles, Asst. U.S. Atty., Tampa, Fla., for plaintiff-appellee.

Before COLEMAN, DYER and RONEY, Circuit Judges.

PER CURIAM:

1

After a jury trial defendants were convicted of importation and possession with intent to distribute 14,550 pounds of marijuana. 21 U.S.C.A. 952(a), 960(b)(2) and 21 U.S.C.A. 841(a)(1) and (b)(1)(B). We have examined the briefs and record in respect to the errors assigned on this appeal. None of these points warrants disturbance of the District Court decision. The prosecutor's statements, acts, and conduct were in reply to defense arguments, and were, in totality, not unfairly prejudicial to defendants. See United States v. Rhoden, 453 F.2d 598 (5th Cir.), cert. denied, 406 U.S. 947, 92 S.Ct. 2050, 32 L.Ed.2d 334 (1972).

2

The overwhelming evidence of possession of more than seven tons of marijuana justified the court's refusal to instruct the jury on the lesser included offense of simple possession. See Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965).

3

Evidence as to defendant Henley's reputation was properly allowed after he testified and introduced the defense of entrapment. Rocha v. United States, 401 F.2d 529 (5th Cir.), cert. denied, 393 U.S. 1103, 89 S.Ct. 905, 21 L.Ed. 796 (1969).

4

In United States v. Gaines, 489 F.2d 690 (5th Cir. 1974), we rejected the argument that the government must prove the seized marijuana was Cannabis Sativa L.

5

The evidence amply warrants the finding of guilt and no error of law is perceived in the trial.

6

Affirmed.