454 F. 2d 731 - Lo Buono v. United States

Robert W. Plath (argued), San Francisco, Cal., for appellant.

David P. Bancroft, Asst. U. S. Atty. (argued), James L. Hazard, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before MERRILL and DUNIWAY, Circuit Judges, and BELLONI,* District Judge.

BELLONI, District Judge.

Lo Buono was convicted of the sale and possession for sale of 7,854 LSD tablets in violation of 21 U.S.C. Sec. 331(q). He claims his conviction should be reversed on the ground that he was unlawfully entrapped as a matter of law.

Lo Buono's appeal briefs presented two theories. First, he argues that the issue of entrapment should have been decided by the judge, not the jury. On oral argument he admitted the federal cases all go against him on this theory. Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932). We agree and see no reason to change the law of this circuit. Pulido v. United States, 425 F.2d 1391 (9th Cir. 1970).

Lo Buono's second theory is that the evidence required a finding of entrapment as a matter of law. After a defendant introduces evidence of entrapment the burden shifts to the government to prove predisposition. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). We hold the facts were such that the jury could have found the appellant to be a voluntary seller rather than an entrapped one. Their verdict shows the jury found the government proved predisposition beyond a reasonable doubt.

We affirm.