475 F.2d 763
UNITED STATES of America, Plaintiff-Appellee,
v.
Richard Herman LORD, Defendant-Appellant.
No. 72-2914.
United States Court of Appeals,
Ninth Circuit.
March 19, 1973.
Robert I. Deutscher (argued), Tacoma, Wash., for defendant-appellant.
Irwin Schwartz, Asst. U. S. Atty. (argued), Thomas P. Giere, Asst. U. S. Atty., Stan Pitkin, U. S. Atty., Seattle, Wash., for plaintiff-appellee.
Before CHAMBERS and TRASK, Circuit Judges, and SCHNACKE,* District Judge.
PER CURIAM:
Defendant was convicted of narcotics violations. We affirm.
The evidence on entrapment being in conflict, the issue was properly submitted to the jury. United States v. Griffin, 434 F.2d 978 (9th Cir., 1970), certiorari denied sub nom. Andrews v. United States, 402 U.S. 995, 91 S. Ct. 2170, 29 L. Ed. 2d 160 (1971). We decline to add to the prosecution's burden by holding that absence of entrapment is an element of the offense charged, rather than a defense to be overcome by the prosecution like other defenses, once it is established as a legitimate issue. Cf. Pulido v. United States, 425 F.2d 1391 (9th Cir., 1970).
The trial judge's comments to the jury, while not a model,1 did not, when taken as a whole constitute reversible error.
Defendant's remaining point, pre-indictment delay, is equally without merit, United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 (1971), even if preserved for appeal, United States v. Garcia, 422 F.2d 1301 (9th Cir., 1970).
Affirmed.
