Opinion
No. 73-3336.
December 30, 1974.
J. D. Quinlivan, Jr. (Court-appointed), Ian Frederick Gaston, Mobile, Ala., for defendant-appellant.
Charles White-Spunner, U.S. Atty., Irwin W. Coleman, Jr., Asst. U.S. Atty., Mobile, Ala., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Alabama.
On Petition for Rehearing and Petition for Rehearing En Banc (Opinion July 5, 1974, 5 Cir., 1974, 496 F.2d 1012.)Before BELL, SIMPSON and INGRAHAM, Circuit Judges.
We reaffirm our holding that the district court erred in denying the request of defendant to give an instruction on a Bueno-type issue in a defense of entrapment. United States v. Bueno, 5 Cir., 1971, 447 F.2d 903. The evidence, although disputed, was that the government, through an informer, supplied the heroin which defendant was charged with distributing. See United States v. Soto, 5 Cir., 1974, 504 F.2d 557; and cf. United States v. Arias-Diaz, 5 Cir., 1974, 497 F.2d 165, 169, Fn. 4.
The petition for rehearing en banc is denied and no member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12), the petition for rehearing en banc is denied.