RUDY L. NOTARO, APPELLANT,
v.
UNITED STATES OF AMERICA, APPELLEE

9th Cir. | 1967-12-27
No. 21691
388 F.2d 680 United States Court of Appeals for the Ninth Circuit (1967) Positive Treatment
Cited by 4 cases

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Holding

The court held that the evidence regarding entrapment was conflicting and required a factual determination, which the district court properly made.


Facts & Procedural History

Notaro was convicted of unlawfully selling marijuana. His prior conviction was set aside, and on retrial, the district court found no entrapment, disc…

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Opinion of the Court
PER CURIAM:

PER CURIAM:

In a non jury trial, Notaro was convicted of having unlawfully sold approximately three and one-half ounces of marijuana. 21 U.S.C. § 176a.

He had previously been found guilty by a jury, but we were compelled to set aside the judgment of conviction which followed that finding. Notaro v. United States, 363 F. 2d 169 (9th Cir. 1966).

In the present appeal, the only contention is to the effect that the district judge should have held, as a matter of law, that the Government entrapped No-taro into the commission of the offense. See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958). The appellant made the same argument in his first appeal. We rejected it, holding that the evidence bearing upon the issue was so conflicting as to require a factual determination. 363 F. 2d at 172-73.

Now the District Court has resolved the issue, basing its determination primarily upon the expressed belief that No-taro’s “testimony was discredited.” While the appellant does not contend that the evidence under review is remarkably different from that which was produced at the first trial, we have examined it. We are not persuaded that we should alter our previously expressed opinion as to its sufficiency.

Affirmed.


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