Bennie Ray Smith v. United States

Bennie Ray Smith was convicted on two counts of selling and facilitating the sale of narcotics in violation of 21 U.S.C. § 174 . The judgment of conviction was affirmed on appeal on February 26, 1968, 390 F.2d 401 . On January 27, 1969 Smith filed a motion, pursuant to 28 U.S.C. § 2255 , to vacate his sentence, contending that he was denied the effective assistance of counsel by reason of the failure of his trial counsel to present the defense of entrapment. Following an evidentiary hearing, the motion was denied. This appeal followed.

On appeal from his conviction Smith contended that the court committed plain error in failing to give an instruction on entrapment, even though no instruction on entrapment had been requested. Calling attention to holdings that “in order to utilize the entrapment defense, an accused must admit he committed acts which constitute a crime, but assert that those acts he committed were not contemplated by him until he was improperly induced to commit them by a government agent”, the court concluded that there was “no evidence that the informant pleaded or argued with the defendant to sell him the heroin”, that “entrapment had not been put in issue, and…