United States v. Felipe Cervantes

Cervantes appeals from a jury verdict which found him guilty of (1) a conspiracy to distribute a controlled substance ( 21 U.S.C. § 846 ), (2) possession with intent to distribute 149 grams of cocaine ( 21 U.S.C. § 841 (a)(1)), (3) possession with intent to distribute 129 grams of heroin ( 21 U.S.C. § 841 (a)(1)), (4) distribution of 149 grams of cocaine ( 21 U.S.C. § 841 (a)(1)), and (5) distribution of 129 grams of heroin ( 21 U.S.C. § 841 (a)(1)).

Cervantes admitted doing the acts charged in the indictment. His sole defense raised at trial was entrapment. He contended that the Government’s informant, Abel Escobar “Joe” Duque, had entrapped him into participating in the narcotics transaction. At trial, the Government was unable to produce Duque. Cervantes therefore argues as his first point on appeal, that this failure on the Government’s part denied him a fair trial.

The Government acknowledges that the informant Duque was a percipient witness to the transaction. It therefore supplied Cervantes with the informant’s identity. See Roviaro v. United States, 353 U.S. 53, 60-61 , 77 S.Ct. 623 , 1 L.Ed.2d 639 (1957). Defense counsel also requested that Duque be produced. Since…

(concurring):

Under the compulsion of certain Supreme Court decisions, cited in the majority’s opinion, I concur.

At the same time, however, my sense of intellectual integrity requires that I- note my adherence to the opinion of our court in Groshart v. United States, 392 F.2d 172 (9th Cir. 1968), an opinion expressing views recently followed by the Supreme Court of California in People v. Disbrow, 16 Cal.3d 101 , 127 Cal.Rptr. 360 , 545 P.2d 272 (1976).

It should be noted also that I do not retreat from the approach expressed by me separately in Velarde- Villarreal v. United States, 354 F.2d 9, at 13 (9th Cir. 1965).

542 F.2d 773 UNITED STATES of America, Plaintiff-Appellee, v. Felipe CERVANTES, Defendant-Appellant. No. 75-2678. United States Court of Appeals, Ninth Circuit. Sept. 16, 1976. Barrett S. Litt (argued), of Los Angeles, Cal., for defendant-appellant. Robert M. Newell, Jr., Asst. U.S. Atty. (argued), of Los Angeles, Cal., for plaintiff-appellee. Before BARNES, ELY, and CHOY, Circuit Judges. BARNES, Circuit Judge: 1 Cervantes appeals from a jury verdict which found him guilty of (1) a conspiracy to distribute a controlled substance ( 21 U.S.C. § 846 ), (2) possession with intent to distribute 149 grams of cocaine ( 21 U.S.C. § 841 (a) (1)), (3) possession with intent to distribute 129 grams of heroin ( 21 U.S.C. § 841 (a)(1)), (4) distribution of 149 grams of cocaine ( 21 U.S.C. § 841 (a)(1)), and (5) distribution of 129 grams of heroin ( 21 U.S.C. § 841 (a)(1)). 2 Cervantes admitted doing the acts charged in the indictment. His sole defense raised at trial was entrapment. He contended that the Government's informant, Abel Escobar "Joe" Duque, had entrapped him into participating in the narcotics transaction. At trial, the Government was unable to produce…