Opinion
No. 71-3295. Summary Calendar.
Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I.
February 4, 1972.
W. J. Sheridan, Jr., Balboa Heights, Canal Zone, for respondent-appellant.
Lester Engler, U.S. Atty., Thomas E. Haney, Wallace D. Baldwin, Asst. U.S. Attys., Balboa, Canal Zone, for petitioner-appellee.
Appeal from the United States District Court for the District of the Canal Zone.
Before BELL, DYER and CLARK, Circuit Judges.
Entrapment is the sole issue raised by Risbrook in this appeal. Having testified that he never dispensed cocaine or possessed marijuana with intent to dispense it in violation of 21 U.S.C.A. § 841(a)(1), Risbrook nevertheless contends that he was entrapped. The district court, sitting without a jury, held that under these circumstances this defense was not available, and there being abundant proof of Risbrook's guilt he was convicted of the offenses charged. We affirm.
When the defendant denies on the stand the very acts upon which the prosecution is predicated, the defense for entrapment is not available. This is so because such "a denial is inconsistent with the defense, which assumes that the act charged was committed." United States v. Groessel, 5 Cir. 1971, 440 F.2d 602, United States v. Crowe, 5 Cir. 1970, 430 F.3d 670, United States v. Pickle, 5 Cir. 1970, 424 F.2d 528.
Affirmed.