Bennie Ray Smith v. United States
Opinion
Opinion
Carter, J.
This is an appeal from a conviction by a jury for two offenses occurring on different days involving the sale and facilitating the transportation and concealment of heroin in violation of 21 U.S.C. Sec. 174 . Concurrent sentences were imposed.
The major questions presented by the appeal involve alleged entrapment and delay in arraignment.
ENTRAPMENT
Did the trial court commit plain error in failing to give an instruction on entrapment when the defense had not been asserted, and there was no request for such instruction by the appellant?
Appellant, now represented by new and very competent counsel, asserts error in several respects, none of which were objected to during trial.
On two separate occasions, the appellant sold heroin to an informant working for Federal Narcotic agents. He was observed by the federal agents to hand the informant a package which was later determined to be heroin. The testimony of the informant gives no indication that he went beyond a simple request when he purchased the heroin from the appellant. Appellant asserts that the defense of entrapment was apparent from the facts and that the failure to instruct upon it was plain error.