PICKETT, Circuit Judge.
Sandoval was convicted on a two-count indictment charging him with receiving and concealing narcotics, in violation of 21 U.S.C.A. § 174, and the sale thereof, in violation of 26 U.S.C.A. § 4705(a). This appeal raises questions as to the admissibility of the narcotics into evidence, the sufficiency of the evidence to sustain the conviction, and the availability of the defense of entrapment.
The evidence of the prosecution shows that on September 1, 1959, Federal Narcotics
It is contended that the heroin packets should have been excluded from evidence. When they were offered, no objection was made. The failure to make timely objection to the admission of evidence constitutes a waiver of the right to object, and ordinarily cures error, if there is any. Moreland v. United States, 10 Cir., 270 F.2d 887; Dunn v. United States, 10 Cir., 190 F.2d 496. There can be no doubt, however, that the exhibit was properly identified and was the heroin which Chavez testified he acquired from Sandoval.
At the close of all of the evidence the defendant moved for an acquittal upon the ground that there was insufficient evidence to establish his guilt beyond a reasonable doubt. It is asserted here that the verdict is not supported by substantial evidence, and that the motion should have been sustained. In determining the question of the sufficiency of the evidence, and the inferences to be drawn therefrom, it must be viewed in the light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; Corbin v. United States, 10 Cir., 253 F.2d 646; Evans v. United States, 10 Cir., 240 F.2d 695; Seefeldt v. United States, 10 Cir., 183 F.2d 713. It is a
It would serve no useful purpose to discuss the evidence of the prosecution further than has already been done. It suffices to say that the evidence is overwhelming that Sandoval had the heroin in his possession and on his person when he came to the automobile occupied by Chavez,
Finally, it is contended that the agents of the United States entrapped Sandoval into making the sale, and that the conviction should be reversed for this reason. Sandoval's defense was that of alibi, and he offered evidence that he was in Denver, Colorado at the time the sale was made. Entrapment was not considered during the trial of the case, and is first mentioned on appeal. While it would appear that the trial court did not err in failing to submit the issue of entrapment to the jury on its own motion, we are convinced that the evidence does not show an issue of entrapment. It is well settled that while the law will not permit decoys to be used for the purpose of luring or inducing innocent or law-abiding citizens into the commission of a crime, still officers may offer an opportunity to one who is intending or willing to commit a crime. Bush v. United States, 10 Cir., 218 F.2d 223; Ryles v. United States, 10 Cir., 183 F.2d 944, certiorari denied 340 U.S. 877, 71 S.Ct. 123, 95 L.Ed. 637. It is quite clear that Sandoval was not entrapped into making the sale to Chavez. The evidence is without conflict that he approached the car driven by Chavez and, when he recognized him, entered the automobile with the narcotics in his possession. He had known Chavez for a long time, and he made the sale without asking any questions, immediately after Chavez asked him if he had any heroin. He was ready, willing and able to make the sale when he entered the automobile.
"Q. Then what happened? A. And somebody said, `Hi, Billy. How are you?' I heard the special employee then say, `Fine. How are you, David?' At that time I heard the door on the automobile on the passenger's side open and it sounded like somebody got in the car and heard the door close again. Then I heard the special employee say, `Do you have any heroin, David?' This other person said, `Yes, I have five caps — no, I have six — seven, — eight.' The special employee then said, `Well let me have seven. I want to buy seven.' And I then heard the other person said, [sic] `Okay, here's the seven.' Then I heard the other party said, [sic] `That's all I have, but I'll have some more in the morning.' He got off the car at that time."