Louis Perez Cerda v. United States

This is an appeal from a jury conviction on two counts of a three-count indictment. The appellant was found guilty under 21 U.S.C. § 174 of facilitating the sale of certain heroin and of facilitating the concealment and transportation of the same heroin. He raises three alleged errors: (1) an alleged abuse of discretion by the trial court in refusing a continuance; (2) the existence of entrapment as a matter of law; and (3) the failure to instruct on the “procuring agent” theory.

Appellant’s counsel relied (and properly so) on the representations of government counsel that the government intended to produce an informer as a witness for the prosecution. Neither side subpoenaed the witness, and he disappeared prior to the trial. The trial court, considering the motion for continuance, had a hearing and read the written statement made to the government by the missing informer. The trial court then made findings to indicate (a) there was no proof the government had caused the witness’ disappearance; (b) the government had made a reasonable effort to locate the missing witness, while the moving party coneededly had made none; and (c) there was no proof that a reasonable continuance…