No. 4354 IN THE &iatt^ Circuit Court Winitth of aippeate FOR THE NINTH CIRCUIT PASCO BAKOTICH, Plaintiff in Error, vs. UNITED STATES OF AMERICA, Defendant in Error. Jldef of Befenbant in Crror Upon Writ of Error to the District Court of the United States for the District of Oregon. JOHN S. COKE, United States Attorney for the District of Oregon. MILLAR E. McGILCHRIST, Assistant United States Attorney for the District of Oregon. For Defendant 8E0. I SMITH PRINTING CO. PORTLAND. OREGON 2-1 2-25 in Error. 40 No. 4354. THE IN niteb S>tates; Circuit Court of Sppeate FOR THE NINTH CIRCUIT PASCO BAKOTICH, Plaintiff in Error, vs. UNITED STATES OF AMERICA, Defendant vid of in Error. Mdtnhmt in Crror Upon Writ of Error to the District Court of the United States for the District of Oregon. JOHN COKE, S. United States Attorney for the District of Oregon. MILLAR E. McGILCHRIST, Assistant United States Attorney for the District of Oregon. For Defendant . i——maji Uf^,*^iiu.^,i»t^ v*'' «rJbt^-.ii^.:^<>c>nMr<^i£rvirh jrA«JV.;sMCt£rftrft.Jsa^ rfj^cay rmiiagir^r^iteJBCB— in Error. STATEMENT. On tion the 21st day of November, 1923, an informa- was filed in the United States District Court for the District of Oregon, charging Pasco Bakotich with violation of Sections 3 and National Prohibition of a quantity The information con- Act. tained three counts, Count 21, of Title II, of the One charging possession Two of moonshine whiskey; Count charging him with sale of moonshine whiskey; and Count three charging him with maintaining a nuisance at 83 7th Street, in the City of Astoria, Oregon. On the 20th day of February, 1924, after trial by jury, said defendant was found guilty of all three counts. Defendant has sued out a writ of error and has alleged, in support thereof, in his assignments of error that the Court erred in its refusal to give cer- tain instructions requested by the defendant, per- taining to entrapment, set forth in the Transcript of Record on Pages 17 and 19, vv^hich instructions are as follows: "The Court instructs the jury that in cases where criminal intent originates in the mind of the defendant, the fact that officers, either of the Government or of the state used decoys or untruthful statements to furnish opportunity for or to aid the accused in the com- mission of a crime in order successfully to prosecute him therefor, that these acts of the officers if are no defense, but, on the other hand, the accused never conceived any intention of committing the offense, the fact that officers of the Government or of the city incited and by persuasion and misrepresentation in- duced him to commit the offense charged, in order to entrap, therefor, I arrest and prosecute him instruct you that this prosecution and the accused is is fatal to the entitled to a verdict of not guilty in relation to the sale of the said intoxicating liquor to the witness McGee." No. Defendant's Requested Instruction I. "The Court instructs the jury that where mind of the criminal intent originates in the the entrapped person, and the accused into the lured commission of the offense charged, order to prosecute him therefor, eral is rule that no conviction though the criminality of the act it is the gen- may is in be had not affect- ed by any question of consent, therefore if 5 you find from the evidence McGhee or any the officer Oregon or of the of in this case that officer of the State city of Astoria lured or induced the defendant Pasco Bakotich to com- mit the offense charged in order to prosecute him therefor, then I instruct you that your verdict should be not guilty." Requested Instruction No. Defendant's II.; and on the further grounds that the Court erred its in instructions to the jury with reference to the right in an officer to approach a person suspected of violating the lavv' opportunity to for the purpose of giving him an sell him intoxicating liquor and com- paring said conduct on the part of said officer with the placing of decoy letters in the United States mail for the purpose of catching persons suspected of transgressing the laws regulating the mails, which instruction is set forth on pages 37 and 38 of the Transcript of Record and is as follows: "Something has been said here about a de• coy, or about the act of McGhee acting as a de- coy, in order to induce this defendant to mit the A oft'ense v/ith person, and a for the purpose which he officer, of is com- charged here. has a perfect right, determining whether have crimes case, as in this is suspected done every day. done with reference It is An officer carrying the mails, for instance, pected of taking of the route That purchase liquor of him. to to the postoffice departments. is to, approach the person who and propose is been committed, money it is in it, who is sus- and at the end found that the has letter been opened and the money taken out. The fact of putting the decoy letter in the mail is for the purpose of obtaining information as to whether the person suspected sing the law. So, in this case, is transgres- McGhee had a perfect right to go to this defendant and pro- pose to buy liquor of him, for the purpose of determining and ascertaining whether or not the defendant was engaged selling liquor; and that is in the business of about all there is to that." Defendant charged in the adduced at the led to contends that as to the sale information and from the evidence trial to prove said sale, he was entit- have an instruction on the question of entrap- ment, and on that theory requested the instructions hereinbefore referred to, which the Trial Court re- No fused to give. question is raised as to the suffi- ciency of the evidence to support the verdict of the jury. Nor is it contended that any error was com- mitted by the Court in its instructions with refer- ence to the evidence concerning the charge of possession of liquor or concerning the charge of main- taining a nuisance in violation of the National Prohibition Act. There was testimony of other violation of the quor laws by Bakotich introduced at the Vv^as trial, li- which allowed to go to the jury in support of the third count of the information, which evidence has not been set forth in this record, and which evidence v;as cornmerited tions on pages 36 As to upon by the Court in his instruc- and 37 of the transcript of record. the possession, it was not controverted that the liquor found in the possession of the de- fendant v/as illegally possessed and there to disturb the verdict of the is nothing jury on that count of the information, since there has been no claim that the Defendant sion of the liquor Bakotich and sentenced ty Jail of was entrapped into the posses- which he possessed. was adjudged to a made to pay a term of nine months fine of $250, in the Multnomah County, Oregon, no Coun- specific 8 penalty being given to any particular count in the information. AND AUTHORITIES. POINTS Requested instructions if may be properly refused there are no facts in the case to justify such in- structions. Coffin vs. U. Bird vs. Brown U. vs. The refusal 162 U. S., S., U. S. 664, 672. 187 Fed. 118, 132. S., 142 Fed. to give 1;^ 73 an instruction CCA is 187. not error to give said instruction is favor- where the omission able to the defendant. State vs. Cook, 117 La. 14; 41 Instructions may be properly S. 434. refused if fully cov- ered by the general charge of the Court. Coffin vs. U. S., supra. Hendrey U. S., vs. 23 Fed. 5, 18. Acquittal on a charge of selling liquor is not in- consistent with conviction for maintaining a com- mon nuisance by keeping a place where liquor was unlawfully kept for Panzich, et sale. al. vs. U. S., 285 Fed. 871. : Bilboa vs. Scribner U. vs. S., U. 287 Fed. 125. S., 2 Fed. (2d) 144. ARGUMENT. The testimony of Earl McGhee, a police officer of the City of Astoria, discloses that said officer to the soft is went drink saloon of Pasco Bakotich, which located at 83 7th Street, Astoria, Oregon, on the 14th day of September, 1923, and while there pur- chased intoxicating liquor from Bakotich, for which he paid Bakotich fifty cents. After the sale was consummated, Bakotich was placed under The officer testified arrest. pertaining to the sale, in part as follows "Q. When did you first see Pasco Bakotich, the defendant in this case, Mr. McGhee? A. Why, I it vv as made probably a couple of days before the purchase. Q. A A. The 14th of September. Q. The 14th of September, 1923? A. Yes. Q. A. Where did you He was behind Q. In A. In this couple of days before see the bar. what place? same him? place. what time? — 10 Q. Describe this place. A. It is 83 7th Street—I think the is number City of Astoria. Q. What county? A. Clatsop County. Q. What was he doing when you saw him as you remember, a few days before the 14th day of September, 1923? A. Well, he was attending the duties ordinarily of a bartender in a place of that kind. Q. What kind of a place A. Well, what I know is this 83 7th Street? of the place of a soft drinks, cigars, tobacco Q. Well, we will come conducted there. ; was a kind it also to the other business being It is ostensibly then a soft drink place where soft drinks and cigars are being sold? what generally A. That Q. And Pasco Bakotich on is it is that date be the 12th of September when you first known —that would —was behind the bar saw him? A. Yes, Q. Since that time have you seen sir. place? A. to be. On September 14th. him in that 11 Q. Now just tell A. saw him on that date and where. It was 11:15 in the morning September when I the jury, Mr. McGhee, when you 14th, entered the place and ordered a drink of whiskey. A. From this defendant? From Mr. Bakotich. Q. All right. A. Well he served the drink. Q. Just tell what took the jury I place. tendered him the Q. money for it. How much did you pay him? A. I cash Q. A. handed him a bill. Yes. And gave he rang me sitting Q. five-dollar it up in the cash register four fifty change. My and drink was on the bar. You may state, Mr. McGhee, where he secu- red the drink that he served to you. A. Well, he had it top of the bar. in a container just He reached under the bar. didn't see the transaction. he filled tainer. under the the glass out I didn't see of. I didn't But he brought the glass I what see the conout, set it on the bar in front of me." The above evidence of Officer McGhee pertaining 12 to the sale of liquor disclosed that the officer into drink parlor/' ordered a drink of "soft this went whiskey as a person would order a cigar and, without any hesitancy on the part of Bakotich, was served with a glass of moonshine whiskey for which he paid Bakotich fifty cents. The did officer no more, according to the theory of the Government's case and according to the testimony of the officer, than give the defendant an opportunity to commit a crime. The liquor was sold to the officer, according upon his bare request for a drink to his testimony, Bakotich's promptness in selling him of whiskey. the liquor corroborated the testimony of the other officers as to the reputation of this ostensible soft drink saloon commented upon in the instructions of the Trial Court on pages 36 and 37 as follows: "Now here. way there has been testimony admitted Gentlemen of the Jury, tending to to been dealing with intoxicants, them about biting acts which to some show that the defendant had, prior this time, either or had in his premises, or would tend in show that he was engaged was exhi- some measure in the business of dispensing intoxicating liquor. I refer to the testimony of the Chief of Police and the 13 other officer mony is who This testified here. testi- not permitted to go to you for the purpose of proving the sale that was made on that date of September 14th; but ted for the purpose of showing, effect, whether maintaining and or not it is if it admit- has that the defendant keeping a common was nui- sance." The instruction of the Court with reference to the conduct of McGhee, to which the Defendant has taken exception, was a proper instruction and correctly stated the law and theory of the Govern- ment's case. The review only question is (first) to considered be on whether, in view of the record the Defendant was entitled to the instructions in the form requested, and (second) whether or not he was entitled to any instructions whatsoever upon entrap- ment. The instruction designated by counsel as Instruction fore I, which he requested and which set forth, was not proper rightly refused by the Court. I in is hereinbe- form and was refer particularly to that part of said instruction as follows: 14 "If the accused never conceived tion of any inten- committing the offense, the fact that officers of the Government or of the state in- and by persuasion and misrepresenta- cited tion induced him to commit the offense char- ged in order to entrap, arrest and prosecute him therefor, I instruct you that this to the prosecution to and the accused is is fatal entitled a verdict of not guilty in relation to the sale of the said intoxicating liquor to the wit- ness McGhee/' This instruction assumes that the officers did incite, and by persuasion and misrepresentation in- duce said defendant to commit the offense charged in order to entrap, arrest and prosecute him there- for, instead of leaving the question to the jury as to whether or not that was done. As to the second instruction, it appears that in a proper case, a defendant would be entitled to have said instruction given. In this case, however, the Court did not commit any error in refusing to give either of the instructions requested by the defendant. The requested instructions were not supported by the evidence or theory of the defense of Pasco Bakotich. He has not contended that he v/as en- : 15 trapped or ensnared into the commission of any crime whatsoever. sold any liquor that he had In fact, he denied that he had to the officer McGhee because he was sick. I re- given the liquor to McGhee represented to him that fer to his testimony, which "Q. McGhee, but contended You heard McGhee is in part as follows Just testify. tell the jury —talk to them so they can hear you—how you saw McGhee, how long you have know McGhee, A. Well, all about that incident. McGhee, beginning when he come in the place? Q. Yes. A. There was another friend of mine, kind of old man, working ing a game camp, in logging of pitch with I him for was play- cigar, and And McGhee come in man, and asked me for a drink. beat him two games. alongside this I say, What 'What kind of drink do you want? do you mean drink?' you mean, drink? I say, 'What do Soda water, water, or what do you want?' He looks kind of me, pale in the face. on, Paul, give me 'McGhee, this is sick to 'Why,' he says, 'Come a drink.' I asked him, two or three times I this says, week 16 you have come in to this place. what you mean. don't yet did sell sell He stuff.' because times he a drink.' I one man, and me.' I am is sick, I I say, me and you know sick'; and sick, I well never don't handle that says, Taul, please give and put a drink, so many his hand Taul, please give 'McGhee, I ain't I would give him go ahead, look for drink. know what happened I fifty cents 'Well, me to me got any. Get thought maybe he was drunk. thought maybe to know better look out, that stuff in this place. like this (illustrating). off don't come back, because you know very don't we Now, you I you don't last night.' Q. Who A. He says, Tou don't know what happened to me last night' I says, 1 don't said that? McGhee. know—fight?' he says, 'No,' Astor Street, on some 'I went down on joint, and,' he said, 1 had about three hundred some odd dollars, just come from the camp. I am clean broke.' So, to tell you the truth, ger than this one, in Q. What did you do? A. Then I had a I my took out from bottle a little big- possession. my pocket, I seen him 17 so sick, I thought to save his what sickness went in poured it He his pocket. say, 'No. says, Taul, I want you it me money That don't cost buy that. to me. I didn't gave not for selling There And your money.' at all. friend of mine gave you that for sickness, to you. it is So if you want help go ahead. Take your money back, A. out in glass. because, I know, of course, your money.' this, I I know I *Go ahead, McGhee.' Then he come out, I said, I And is. life. I didn't After he asked me, and I I don't want take his money. give it to him, he took out money. Q. What? A. After He I says. cents. I give him drink, he took out money. Take don't you don't get 'No, Q. I They didn't it. Friend of mine gave want it this for nothing. for nothing yourself.' pay for lied v/hen me 50 I know I says, that.' they went on the stand and said that? A. They are after me Yes. but I me, to am to sell moonshine, They are after make some money from me." not going to do it. In view of the fact that the defendant, Bakotich, 18 denied that he had been entrapped into the commis- any crime, and claimed that he had given the liquor to the officer upon his solicitation, and made no claim that the officer had anything to do with his sion of possession of the liquor, it would seem beyond any doubt that the instruction as given by the Trial Court covered the defendant's theory of the case. I refer to the instruction on page 39 of the transcript, which reads as follows: "Now, as to the sale, it seems that the im- mediate question as to whether a sale took place between the defendant and McGhee de- pends almost alone upon the testimony of Mc- They do not concur Ghee and the defendant. in they say about Vv'hat The defendant it. says that he gave the liquor to McGhee. course, sale, the Of Government, having alleged a must prove a sale, and if the defendant gave the liquor to McGhee v/ithout a considernot proven. But the ques- ation, the count tion here, Gentlemen of the Jury, is is for you to determine, as between these two men, which one is telling the truth this the truth. Is McGhee telling when he says he paid 50 cents for or the defendant telling the liquor; is 19 truth when he says McGhee? all that he gave the liquor to You may take into consideration the circumstances surrounding the entire transaction —what was done and said there, and the probabilities of the fact, mine for yourselves whether or and deter- not, beyond a reasonable doubt, the Government has established the fact, as alleged, that the defendant sold liquor, intoxicating liquor, or moonshine, to the plaintiff." The Trial Court told the jury that if they be- lieved the defendant's testimony concerning the giv- ing of the liquor to McGhee, as he had contended, they should acquit him of the second count in the indictment. The Court stated that the "Govern- ment, having alleged a if sale, must prove a the defendant gave the liquor to sale, and McGhee without a consideration, the count is not proven." Such an instruction by the Court more favorable to the de- is fendant than the instruction requested by him, and is more applicable to the theory of the defendant's defense than the instruction of entrapment requested, and the failure to give said instructions cannot be said to be prejudicial to the defendant, in view of the instruction given by the Court on that point. In any event, a reversal in this case as to Count 20 II, alleging the sale of intoxicating liquor, for error committed by the Trial Court would not verdict of the jury as to Counts I and III affect the charging the possession of intoxicating liquor and maintain- ing a common nuisance in violation of the National Prohibition Act, nor the judgment of the Court, in view of the fact that the sentence of nine months and $250 could have been imposed as a judgment upon a conviction on Counts I I and III. Hunt quote from the decision of Judge in the case of Panzich vs. United States, supra, as follows: We find no merit in the second assignment, inasmuch as Mary Panzich was acquitted of the charge of an unlawful sale, the verthat, dict of guilty of maintaining a common nuis- ance cannot stand against her. Acquittal of making a with guilt of sale is not inconsistent keeping a place where the purpose and barter. material, if That no business the place is is is to sell done is im- kept for the purpose of doing business." Respectfully submitted. JOHN S. COKE, United States Attorney for the District of Oregon. MILLAR E. McGILCHRIST, Assistant United States Attorney for the District of Oregon.
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