Ollie Nathan Harris v. United States, 402 F.2d 464, 10th Cir. (1968)
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Scribd Government DocsOllie Nathan Harris v. United States, 402 F.2d 464, 10th Cir. (1968)
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Scribd Government Docs402 F.
2d 464
Ollie Nathan HARRIS, Appellant,
v.
UNITED STATES of America, Appellee.
No. 9895.
United States Court of Appeals Tenth Circuit.
July 5, 1968.
Rehearing Denied December 9, 1968.
Thad L. Klutts, Oklahoma City, Okl., for appellant.
B. Andrew Potter, U. S. Atty., and John E. Green, Asst. U. S. Atty., for
appellee.
Before PHILLIPS, HILL and HICKEY, Circuit Judges.
PER CURIAM.
Appellant, Harris, was tried and convicted in the Western District of Oklahoma,
after waiving a jury, of violations of various sections of the Internal Revenue
liquor laws. The case was submitted here upon the briefs and record without
oral argument.
The brief filed by appellant makes three points: (1) "The punishment and
judgment of the court was excessive;" (2) The court erred in admitting the
evidence of several government witnesses, all of whom were investigators for
the Alcohol and Tobacco Division of the Treasury Department; (3) The court
"erred when the trial court refused to give an instruction on entrapment." All
points are without merit and unsubstantial.
The trial judge, after finding appellant guilty on eight counts, sentenced him to
five years on each of five counts, the sentences to run concurrently, and on the
remaining three counts suspended the imposition of sentence and granted
probation for three years to commence to run at the expiration of the concurrent
sentences. The sentences were imposed under 26 U.S.C. 5604(a) (1) and
5686 (a) and 18 U.S.C. 371. A reading of those statutes plainly shows the
sentences here to be within the maximum therein provided for. There was no
abuse of discretion and it is a valid sentence. 1
4
The second point is premised upon appellant's legal conclusion that he was
illegally entrapped into committing the offenses charged. The issue of
entrapment was urged in the trial court and there rejected by a finding that there
was no entrapment in the case. This court has said that "Entrapment occurs
when the criminal design or conduct originates in or is the product of the
government officials and is implanted by them in the mind of an otherwise
innocent person."2 We have reviewed all the evidence in the case and reach the
inescapable conclusion that there was no entrapment, it is just another instance
of the government agents merely affording the appellant an opportunity to
commit an offense for which he already had the criminal propensity,3 which
falls far short of entrapment.
The third point is wholly without merit because the case was tried without a
jury.
Affirmed.
Notes:
1
Thompson v. United States, 10 Cir., 381 F.2d 664; Jordan v. United States, 10
Cir., 370 F.2d 126; Smith v. United States, 10 Cir., 273 F.2d 462, cert. den. 363
U.S. 846, 80 S.Ct. 1619, 4 L.Ed.2d 1729
Martinez v. United States, 10 Cir., 373 F.2d 810, at 812
Rowlette v. United States, 10 Cir., 392 F.2d 437; Jordan v. United States, 10
Cir., 348 F.2d 433
