United States v. Lawrence Elliot Marken

Marken was convicted under two counts of an indictment. One count charged conspiracy to violate 26 U.S.C. § 4705 (a); the other charged a sale of cocaine in violation of that section. We reverse.

1. When must the order required by § 4705(a) be obtained?

There was but one transaction. Mar-ken negotiated a sale of cocaine to undercover agents. It was agreed that the agents were to go with Marken to a “drop site,” where Marken was to point out a car to agent Warren. The cocaine was to be located under the front seat of that car, and Warren was to go to the car and get it. If satisfied with it, he was to signal to agent Egbert, who had the money and was to pay Marken. The arrangement was carried out. However, according to Marken’s testimony, when Warren gave the signal Egbert struck Marken on the head, knocking him unconscious. The agents denied this, but that fact is immaterial because we are considering Marken’s theory of defense. See United States v. Shewfelt, 9 Cir., 1972, 455 F.2d 836 . Marken's theory was that this prevented his demanding from Egbert the order required by § 4705(a). The court permitted Marken’s testimony, but declined to let his counsel argue this theory to…