United States v. Paul Ewbank, AKA "Pablo"
483 F.2d 1149
9th Cir.
1973
Check Treatment

*1 KOELSCH, Before WRIGHT Judges. TRASK, Circuit *2 1150 Judge:

TRASK, Appellant Circuit return the testi- to mainland. fied Clark left the hashish with that Ewbank, “Pablo”, known as Paul also complete him the to sale. This court, appeals by from his conviction the done. sitting charge jury, of without a hearing oil, distributing testimony, a controlled After hashish all of the announcing in violation in substance, of 21 its decision said: § U.S.C. 841(a)(1). Appellant he admitted that “Ewbank, testimony, from indi- Feburary of hashish oil two vials sold going cated that he wasn’t taken Agent 16, 1972, Special in Robert Aiu to in this the informant. Kerry presence informer, R. of an testimony I think it clear from his upon Lee, for He relied de- $400. that reason he this sale made entrapment. fense of Kerry Lee was because he was appellant theory, of his trying Clark, to do a turn who had concerning testified his association with come to him rid of oil. Of testimony Kerry Lee, the informer. This course, bring him that wouldn’t within disputed. Appellant met the in- protection en- of the doctrine of 1971, in former when the informer June giving trapment, him bene- appel- rented a room for in a short time fit of the this was doubt appellant Then, as testi- lant’s house. selling it to reason he He was sold. fied, attempted through a series help Clark out. This was a case appellant, acts involve admitted knees where on his Beginning August user, in in a sale. saying, T need this stuff. You want 1971 Lee made mari- in it for me.’ Here was a juana appellant. He and hashish from’ money. said, T need which Clark was unsuccessful. On several occasions got if see this oil. want have ” appellant din- Lee took wife get rid of it for me.’ can gave marijuana ner and and hashish to entrapment in The law of the Ninth appel- appellant. proposals made recently Circuit has most been discussed engage in- business ventures lant Judge Hamley in United States v. volving acquisition of her- and sale Granger, 1973). (9th 475 F.2d 1022 Cir. marijuana Appellant oin, and hashish. excep- There noted that with two appellant chance He offered refused. consistently ap- tions this circuit has smuggle America from cocaine South plied Theory” “Predisposition en- appellant be- then declined. Lee adopted trapment in Sorrells v. United gan pressure appellant to obtain 210, States, 435, 453, 287 53 U.S. S.Ct. him, appellant’s for sources (1932), in Sherman v. 77 L.Ed. 413 appel- personal Again, favor. States, 369, 378, United U.S. 78 356 asked The informer then lant refused. (1958).1 819, 2 L.Ed.2d Of S.Ct. 848 appellant again personal favor, aas upon,2 exceptions United commented drug kind of he could obtain (9th Russell, Cir. 459 F.2d 671 States v. Appellant stated friend. former’s 1972), limited has further been However, after about could not. reversal the Su- discussion its week, appellant and told located source 1637, 423, Court, preme 93 S.Ct. drugs. obtain efforts to about Lee’s 24, 1973). (April 36 L.Ed.2d 366 person named The source was agree appellant oil here that hashish vials of We Clark who two appel- predisposition the sense is not a case in a friend Clark was sale. clearly order to of Russell where the evidence lant and needed some 1300, Russell, Tatar, 459 F.2d 671 439 F.2d 2. v. v. United States United States reversed, 1971) ; (9th 1972), (9th 411 U.S. Cir. Cir. 1302-1303 (April 24, (9th Walton, 411 F.2d 36 U.Ed.2d S.Ct. States 1973) ; 1969). 454 F. Greene v. United Cir. (9th 1971). 2d 783 Cir. strange actually appellant had disclosed that tale convinced “that engaged activity been criminal reason this sale to prior time which he was convicted Lee was because he was ado upon came scene. turn to Clark who had come get rid of this oil.” appellant The fact here drug culture, was involved in the accord The dissent characterizes the decision *3 ing being admission his own experienced judge of this and district user, does that he also not establish was majority’s the splitting” rejection affirmance as “hair- predisposed or distributor seller with part of of the that meaning in the of crime of the which testimony describing had what tran- But that convicted. establish spired previous over months. On the entrapment he must able there was contrary, it and the court did consider govern trier of fact convince the that pointed proved out it that “Ew- that activity in fact occui’red which mental bank, testimony, from indicated that his lured him an innocent vic as otherwise going by in taken this wasn’t by tim peated commission of crime re to the informant.” The induc- the persistent In solicitation. ing request cause of sale was the the Sorrells, supra, trial court refused Clark, from that came from Lee. (a question a trier submit this of fact needed and it could as well Clark jury) in of evidence the face of such so anyone have come from else as from Sherman, licitation. This was error. The from Ewbank’s Lee. trial court entrapment supra, the Court found testimony own found that could have defendant, an matter of law where the behalf, Clark, or on Ewbank Clark’s addict, fel succumbed to entreaties of just anyone. willing to sell to drugs low to him relieve addict to sell not the induc- furnished the market but craving. his inducing ing of or cause the sale. As motivating sale, Lee had con- of cause difficulty The case of sistently failed. by not, appellant here is that he has self-serving testimony, though own out, points dissent As the undisputed, is of convinced the trier (under testimony appellant there is government requisite fact inter that the leading questioning) that he rather some entreaty persuasion, vention or blan govern help the sale sale was the reason dishment the inform informer a sale to ment admittedly occurred. the dissent “friend.” But what er’s appellant in is it is The related all occa- to consider this case fails wit importuned judge sions has seen the when the informer had trial who for the heaped upon testify, to assess his favors De- him. ness heard spite credibility questions of fact. these numerous and resolve former, Hodas, appellant consistently F.2d 211 States v. arrange (9th 1972). Apparently the trial refused to or make sales to Cir. self-serving Appellant informer then court testimony. not believe or friends. upon Although is burden testify went on that it when appellant’s Clark, prove friend, of en absence own who was doubt, on government, trapment beyond de- a reasonable connected with presume may that he sired to make a sale loaned his the court we a trial to proper making applied standard to the extent the sale services evaluating surprisingly, of the tale rather himself.3 Not Clark was bizarre required supra. produced appellant. Hodas, As never cor- nor was other story involving for the him. roboration Glasser v. United (1942), we The which heard rather L.Ed. 680 trial court S.Ct. price $22 him back to Clark. Clark $400 for the amount He testified passed portion oil. and a small $400. hashish sold judgment if the Lee marihuana sell must court’s —-but justifiably included clever- that conclu- incidental behavior leads to evidence ly wear down Ewbank and It not our function reverse calculated sion. trap unwary might “to innocent.” different- hence have decided because we ly required hair- to do had we been appeared first on the scene splitting, deci- evaluation or or evidence June, Ewbank’s when he went making. affirm unless sion We must represent- home and rented a room. He “clear- trial court’s fact determination is ed himself as a dealer narcotics

ly 52. We erroneous.” Fed.R.Civ.P. ostensibly shortly left for Honolulu say that it was. cannot Upon re- such transact some business. August turning approached Ew- Judgment affirmed. re- bank with the first of a series of quests marihuana or hash- (dissent- KOELSCH, Judge Circuit ish. *4 ing) : ensuing During was a Lee weeks sorry one. decision is frequent The court’s at visitor the Ewbank home would, guest. verbatim overnight out the evidence To set and sometimes was an lengthen suppose, unduly this dissent. I he not enter- On several occasions most myself, for the I will So content tained and at dinner Ewbank his wife high- long of the part, résumé with to them and mari- but also hashish regard teach- giving lights, However, invariably due re- huana. Ewbank I understand ings But if requests of jected Glasser. But all Lee Lee’s to sell. Sorrells, teachings correctly Sher- of persisted. recently, and, Russell, most man again In November he rented room affirmatively a com- establishes record and himself offered to sell Ewbank predisposition plete of criminal absence Meeting no re- with success hashish. he fairly part shrieks of on the Ewbank —it entertaining practice sumed his of entrapment. of giving them Ewbanks and marihuana. “informer”; simply an not was proposed addition he Ewbank paid ferret he was using join forces and his con- the two crime, his unconsciona- out but here smuggle and illicit nections secure he created ble and unlawful methods into from South States one. again firm. Ewbank stood America. not However, February In this his were instance Lee re- of 1972 To immediately capped with attempts. success. He Ewbank newed called his proved to contrary, every day, Ewbank nearly because last times several they subject, were any most reluctant giving story be a of his need about continuously pursued February practically over drug “for a Un friend.” did period in Nor of months. six finally excess and Ewbank succumbed merely requests repeated consist of It he for stands convicted.1 sale accepts completely dis This as correct of it is barren read record appraisal judge’s judge’s any of testi proof Ewbank’s trict the trial apparently concerning mony Clark and sole determination that Ewbank’s factual trying “I think it is clear conclusion that “he motivation was ” testimony that [Ewbank’s] . . . If it shows do a turn to Clark. doing anything he made this sale to reason that Ewbank was shows [Agent he was was because Aiu?] rec- “a turn” Lee. Here is entire subject: who had come do a turn to Clark ord on the get you him rid oil.” of this Do named know someone “Q. the trial Ray a lack of must confess to Clark? my judge’s ability apparently Ray shared met man I at A. is a Clark — reject split February as approximately hairs and brothers —to Baldwin Beach transpired wholly camping that had immaterial He on the beach. 13th. preceded stay place over the months said needed a important, single days approximately But more sale. he could a few until eventually States, 441, is wonder that did little rells v. United finger ring (1932)); so: “The on the becomes 53 S.Ct. 77 L.Ed. 413 how- ever, dripping aptly wearing, leading thin the fall of wa- stated ter hollows the stone.” of Butts v. United 273 F. (CCA 1921) ap- quoted a decision and highest authority told We are on the proved Sorrells, stratagem may that “artifice and em- ployed engaged “(t)he crimi- catch those of first duties officers of the merely enterprises” “to af- prevent, pupish nal and that law are not to persons opportunities facil- duty ford such crime. their It incite purpose ities for commission the offense and create crime the sole (Sor- prosecution,” prosecuting punishing does not defeat it. 'what did Larry here. He agent noon, Kerry interested in the oil but was not leave the oil in the came particular Following February 15th and said his friend was would call said the 16th? coming I told subsequently Kauai did not come? kind of come and he would have to ish oil from care of it. them both Kerry Lee? his friends Clark? meter vials of hashish oil. He said wife back to the Mainland. needed (cid:127)A. THE COURT: This Q. A. THE AVITNESS: Q. A. On A. No. Q. Q. A. Q. 14th, my back to the Mainland. He came in. was not at each All February 16th, I told Did by. Kerry (By AVhat did AVere I told him about Walker and called, I the next to sell them house and had two ten milli- he called and asked about I was alone in friend from Kauai had not came approximately February you say purchased Kerry right. day. other. this call from together about Mr. I was back later. coming you going Ray called and it. he could up would your meeting you say home, day Lee contact Hoskins) Ray being Ray called AVhat Clark and sell it to next house myself. just from Kauai and so the oil. the house with the from Kauai. in the put No, Kerry Kerry’s but the oil was said he would said his friend to Mr. approximately I for his friend. buy them in touch happened friend from not on that Ray told him— house I told him All late could take here. He you again wait; would be the hash- with call Clark? to Clark? after- ready right. 15th Mr. put up for him. He smoking arrangement that he had it. never dealt things mately his wife. It’s hashish oil to 1972? $22? services? you? of oil. your services? turn, gave me *5 turn. money? Coast sibility the substance? Q. A. Never.” A. [*] A. Q. DoQ. A. He said he needed the rest of the A. No. A. Q. A. Q. A. The Q. Q. A. Yes. felt A. Q. Q. Q. AVhat A. Q. had tilings involving big money making, staying So, prior I had known Mr. Yes, Did Did No, I And, Did I Then what Did the What did I said it had come from the West obligated I was eight been gave put sold [*] you Ewbank, why you expect you keep agents you I did. buying there did didn’t. it in months. asking very and waited for back to the Mainland with reason would have narcotics to known AiuMr. agent know $22 said ask narcotics. you say? you keep left. of it afraid Ray’s [*] happened? further and a small amount February Ray me do with it ask why for a And, with on $22 to do to do the favor of; room where he about the » February 16, Ray. paid anyone quantities At the any that he in that time pay you you long his friend and, smuggling gave you personal approxi- of that sell the money? more. He in I to re- else? time. [*] done time your had pos- strongly the evidence tends to Here conclusively prove, so, do it does their and chief endeavor first cause, create, crime in order unconscionable, punish it, policy, contrary public punish law of land to established

man for the commission an offense never been like of which he had thought

guilty and evi- or in deed guilty

dently never would have been law had not

if the officers incited,

spired, persuaded, and lured attempt commit

him to it.” ought judgment reversed.

The COMPA- CONSTRUCTION

CONNELL Plaintiff-Appellant, NY, INC., STEAMFITTERS LO- AND

PLUMBERS 100, etc., CAL UNION NO. Defendant-Appellee.

No. 72-1243. *6 Appeals, Court

United States Fifth Circuit.

Aug. Rehearing En Banc

Rehearing and 19, 1973. Nov. Denied