United States v. Jesus P. Aviles , 439 F.2d 708 ( 1971 )

439 F.2d 708

UNITED STATES of America, Plaintiff-Appellee,
v.
Jesus P. AVILES, Defendant-Appellant.

No. 26013.

United States Court of Appeals, Ninth Circuit.

March 9, 1971.

J. Frank Gibson (argued), of Gibson & Gibson, Phoenix, Ariz., for defendant-appellant.

Morton Sitver, Asst. U. S. Atty. (argued), Richard K. Burke, U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Before CHAMBERS, MERRILL and HUFSTEDLER, Circuit Judges.

PER CURIAM:

1

The judgment of conviction in this narcotics case is affirmed.

2

We find adequate evidence to support the conviction on all counts.

3

The failure here to require the government to produce the informant was within the trial court's discretion. The informer was not a witness to or an actor in the transactions. If the informer had participated in the alleged entrapment, we would have a different case.

4

The judge here as the trier of fact simply refused to believe Aviles on entrapment.

5

There may be too many counts in the indictment, but with concurrent sentences, Aviles was not prejudiced.