U.S. v. BRACE

No. 96-50352.

145 F.3d 247 (1998)

UNITED STATES of America, Plaintiff-Appellee, v. David BRACE, Defendant-Appellant.

United States Court of Appeals, Fifth Circuit.

June 24, 1998.


Attorney(s) appearing for the Case

Richard L. Durbin, Jr., Asst. U.S. Atty., San Antonio, TX, for Plaintiff-Appellee.

Roy R. Barrera, Sr., Nicholas & Barrera, San Antonio, TX, for Defendant-Appellant.

Before POLITZ, Chief Judge, and KING, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, DUHÉ, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER and DENNIS, Circuit Judges.


RHESA HAWKINS BARKSDALE, Circuit Judge:

We granted rehearing en banc to consider whether, in order to rebut the entrapment defense raised by David Brace, the Government was required to prove "positional predisposition" on his part, a new requirement utilized in another circuit and by the panel; but, we conclude that we cannot address that subissue because it was neither preserved in district court nor even raised, for the first time, on appeal. Instead, at issue is...

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