United States v. David C. Fraser , 431 F.2d 876 ( 1970 )

431 F.2d 876

UNITED STATES of America, Plaintiff-Appellee,
v.
David C. FRASER, Defendant-Appellant.

No. 23571.

United States Court of Appeals, Ninth Circuit.

Aug. 28, 1970.

Frederick Jay Lutz (argued), San Francisco, Cal., for defendant-appellant.

Irving Prager (argued), Asst. U.S. Atty., Robert L. Meyer, U.S. Atty., David R. Nissen, Chief, Criminal Division, Los Angeles, Cal., for plaintiff-appellee.

Before DUNIWAY and CARTER, Circuit Judges, and THOMPSON,1 District judge.

PER CURIAM:

1

Fraser appeals from a judgment of conviction under three counts of a four count indictment based upon violations of 21 U.S.C. 174. Count one charged receiving, concealing and facilitating the concealment of heroin. Counts two and four charged two separate sales of heroin to a federal agent.

2

Fraser admitted doing the acts charged and claims that he was entrapped, as a matter of law. Our examination of the transcript convinces us that the evidence, including Fraser's own testimony, amply sustains the government's burden of proving that he was not entrapped.

3

The contention that the so-called presumption embodied in section 174 is unconstitutional is not available here. There was no jury, and there is evidence on the basis of which the court could find that the heroin was imported from Mexico by Fraser. Moreover, even if there were no such evidence, the presumption is valid. Turner v. United States, 1970, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610; United States v. Hampton, 9 Cir., 1970, 422 F.2d 867.

4

Affirmed.

1

Honorable Bruce R. Thompson, United States District Judge, District of Nevada, sitting by designation