352 F2d 799 Lewis v. United States

352 F.2d 799

Duke Lee LEWIS, a/k/a/ Lee D. Lewis, Defendant, Appellant,
UNITED STATES of America, Appellee.

No. 6610.

United States Court of Appeals First Circuit.

Argued Nov. 10, 1965.
Decided Nov. 2, 1965, Certiorari Granted Jan. 31, 1966, See
86 S.Ct. 646.

S. Myron Klarfeld, Boston, Mass., for appellant.

Edward J. Lee, Asst. U.S. Atty., with whom W. Arthur Garrity, Jr., U.S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, HASTIE1 and McENTEE, Circuit Judges.



Defendant, convicted of selling marihuana to a government agent who had misrepresented his identity, claims an unlawful search and seizure because, thus misled by the agent, he invited him to his home and there made the sales. The happy days for law violators that this claim would produce are not to be. This is not a case of a government agent gaining access for an apparently proper purpose in order to seize surreptitiously evidence of a prior crime, Gouled v. United States, 1921, 255 U.S. 298, 41 S.Ct. 261, 65 L.Ed. 647, but is one in which the agent was invited for precisely the purpose for which he went. Short of entrapment, not here maintainable, defendant can no more assert that he would not have opened the door to the agent than he can assert that he would not have made the sale. His reliance upon Escobedo v. State of Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, is quite misplaced. United States v. Pasquinzo, 6 Cir., 1964, 334 F.2d 74.




Sitting by designation