United States v. Adolpho Rodriquez

Adolpho Rodriquez appeals from his conviction on all counts of an eleven-count indictment charging a conspiracy to import and sell heroin, and concealment, facilitating the concealment, sale, facilitating the sale and facilitating the transportation of heroin, in violation of 21 U.S.C. § 174 . The only issue raised on appeal which we find worthy of discussion, is whether, as defendant argues, the trial court erred in giving an inadequate and improper instruction on defendant’s defense of entrapment.

The instruction given was erroneous under Notaro v. United States, 363 F.2d 169 (9th Cir. 1966). It incorrectly told the jury that the jury was not permitted to acquit on this defense unless it should find that the accused had no previous intent or purpose to commit any offense of the character here charged, and did so only because he was induced or persuaded by some agent of the Government. As stated in No-taro, defendant was also entitled to acquittal on this defense if, from the evidence, the jury, because of the entertainment of reasonable doubt, “should be unable to find that the necessary elements of the defense had not been excluded.” 363 F.2d at 176 .

The Government concedes…