Kendjerski v. United States

DONAHUE, Circuit Judge (after stating the facts as above). The plaintiff in error insists that the verdict and judgment in this case is not sustained by any substantial evidence. While this question is not presented by the record, nevertheless in making this elaim counsel evidently overlooks, not only that the credibility of the witness Smerk was a question for the jury, but also the further evidence of the policemen that they had given him this marked dollar; that he shortly returned with the whisky and the change; that within a very few minutes thereafter they found this marked dollar in the possession of the defendant, and that her explanation as to how this marked bill came into her possession is so unreasonable as to seriously affect, to her disadvantage, the question of her credibility. It is also insisted that the court erred in refusing to charge on the question of entrapment. This record contains no 'evidence whatever that would require or justify any such charge. The mere fact that an enforcement officer offers to buy, either in person or through an agent, does not constitute entrapment, but merely furnishes an opportunity to one who is willing to commit the offense. Browne v. United States (C. C. A.) 290 F. 873, 874 and cases there cited. It appears from the evidence that the enforcement officers did not instruct the boy Smerk to buy intoxicating liquors from this particular defendant, or to state any purpose. whatever for which he desired to use the whisky in any purchase that he might make. In this case the officers did not induce an entirely innocent party to commit the offense. Judgment affirmed.