Javier Carbajal-Portillo, Rafael Vega-Picos v. United States

396 F.2d 944 Javier CARBAJAL-PORTILLO, Rafael Vega-Picos, Appellants, v. UNITED STATES of America, Appellee. Nos. 21855, 21855A. United States Court of Appeals Ninth Circuit. June 12, 1968. Michael S. Hegner (argued), of Hecsh, Hegner & Philbin, San Diego, Cal., for appellants. Shelby Gott (argued), Asst. U.S. Atty., Edwin L. Miller, U.S. Atty., San Diego, Cal., for appellee. Before HAMLEY and MERRILL, Circuit Judges, and GRAY, District Judge. The appellants were convicted by a jury on each of three counts which charged them with violations of 21 U.S.C. 174 in having brought sixteen ounces of heroin into the United States from Mexico, having facilitated the transportation and concealment of such heroin, and having sold it in the United States with knowledge of its having been imported. APPEAL OF CARBAJAL-PORTILLO GRAY, District Judge: Appellant Javier Carbajal-Portillo (Carbajal) contends that the undisputed evidence shows that, as a matter of law, the offenses he committed stemmed directly from entrapment. We agree. It appears, from the testimony at the trial, that Carbajal lived near the city of Mazatlan in Sinaloa, Mexico, where he had a family to support and was unemployed…

APPEAL OF CARBAJAL-PORTILLO

Appellant Javier Carbajal-Portillo (Carbajal) contends that the undisputed evidence shows that, as a matter of law, the offenses he committed stemmed directly from entrapment. We agree.

It appears, from the testimony at the trial, that Carbajal lived near the city of Mazatlan in Sinaloa, Mexico, where he had a family to support and was unemployed and destitute. A man named Osuna offered to pay him $500 if he would carry a package of heroin to Mexicali, a city in Mexico immediately adjacent to the California border, and sell it to a man named Palomares. Carbajal accepted the assignment, put the heroin in a paper bag, boarded a bus, and made the more than one thousand mile journey to Mexicali. He found Palomares, who told him *946 that he was unable to pay for the heroin. Instead, Palomares suggested to Carbajal that the latter go across the California border to the adjoining city of Calexico and sell the narcotics to a Mr. Ricos, who would buy it and give him the money. Carbajal left the package of heroin with Palomares, crossed into Calexico, and met Ricos at the street corner location where Palomares told him that Ricos would be waiting. There,…

(dissenting as to Vega):

It seems to me that the “umbrella” of Carbajal’s entrapment should, indeed, be stretched to cover Vega as well. In our opinion in this case with respect to Carbajal, we refer to Judge Ely’s comment in Notaro v. United States, 363 F.2d 169, 173 (9th Cir. 1966), in which he explained the rationale of Sorrells v. United States, 287 U.S. 435 , 53 S.Ct. 210 , 77 L.Ed. 413 (1932):

I believe that such comment is equally applicable to Vega.

As has been discussed in the opinion concerning Carbajal’s appeal, the transportation and sale of heroin stemmed directly from the persuasion exerted by the narcotics agent. But for the latter’s activities, Carbajal would not have agreed to make the sale in the United States and would not have been looking for someone to help him with transportation. There is no indication that Vega previously dealt with narcotics in any way or that he was “ * * * awaiting any propitious opportunity to commit the offense.” Cf. United States v. Sherman, 200 F.2d 880, 882 (2d Cir. 1952). Thus, it may be said of Vega, as well as of Carbajal, that he was convicted for having perpetrated a crime that he “ * * * would not likely have committed but…