When the issue of entrapment is presented and there is a conflict in the evidence and credibility factors are involved, it is for the trier of fact to determine whether the accused is an unwary innocent or an unwary criminal. Matysek v. United States, 321 F.2d 246, 248 (9th Cir. 1963); Walker v. United States, 298 F.2d 217, 225 (9th Cir. 1962). Although the use by the Government of an informer while there is pending against him serious charges of narcotic violations which might result in a long penitentiary sentence has been condemned (See Matysek v. United States, supra, 321 F.2d at 249.)
We affirm. The picture presented by this record is not a pretty one. It makes us just as uncomfortable as we were in Enciso v. United States, 9 Cir., 1967, 370 F.2d 749, and in Matysek v. United States, 9 Cir., 1963, 321 F.2d 246. But we feel compelled to affirm by prior decisions. There was but one transaction — a sale of heroin by Padilla to a federal narcotics agent.
343 U.S. at 757, 72 S.Ct. at 973. "Although the use by the Government of an informer while there is pending against him serious charges of narcotic violations which might result in a long penitentiary sentence has been condemned (see Matysek v. United States, supra, 321 F.2d 246, 249 (9th Cir. 1963)), we cannot find entrapment as a matter of law."Cf.
"The court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the Supreme Court denying an application for a writ of certiorari." Matysek v. United States, 321 F.2d 246 (9th Cir. 1963). 376 U.S. 917, 84 S.Ct. 672, 11 L.Ed.2d 613 (1964).
He was ready and willing to commit the offense as shown by his ready complaisance. As stated in Matysek v. United States (1963), 321 F.2d 246, at page 248: "The defense of entrapment is not established as a matter of law by simply showing `that the particular act was committed at the instance of government officials.' * * * Relevant to the issue is the predisposition and willingness of the accused to commit the crime and the criminal design of the accused."