Ernest Garcia De La Rosa v. United States

Ernest Garcia De La Rosa, appellant herein, and one Manuel L. Lopez were indicted in the United States District Court for the Central District of California on April 12, 1967, charged with two counts of violation of 21 U.S.C. § 174 and one count of violation of 26 U.S.C. § 4705 (a). They were jointly tried to a jury and both were found guilty on all three counts. The conviction of Lopez has been affirmed previously by this court. 409 F.2d 1351 (9th Cir. 1969). Appellant was sentenced to five years on all three counts, the sentences to run concurrently. His in forma pauperis appeal is properly before this court under 28 U.S.C. § 1291 .

Appellant makes two specifications of error on this appeal: (1) The defense of entrapment was established as a matter of law and such defense should not have been submitted to the jury for its consideration; and (2) the court erred in failing to submit to the jury instructions on the “procuring agent” theory.

In the instant case the facts concerning the alleged entrapment were sharply disputed. Appellant testified that he initially refused to procure the heroin, that he was suffering from withdrawal symptoms, and that he only agreed to get the…