Marshall v. United States, No. 21226.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBARNES and ELY, Circuit , and THOMPSON
Citation409 F.2d 925
Decision Date09 April 1969
Docket NumberNo. 21226.
PartiesO'Dell MARSHALL, Appellant, v. UNITED STATES of America, Appellee.

409 F.2d 925 (1969)

O'Dell MARSHALL, Appellant,
v.
UNITED STATES of America, Appellee.

No. 21226.

United States Court of Appeals Ninth Circuit.

April 9, 1969.


Barry Tarlow (argued), Beverly Hills, Cal., for appellant.

Ronald Morrow (argued), Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and ELY, Circuit Judges, and THOMPSON,* District Judge.

ELY, Circuit Judge:

This appeal follows appellant Marshall's conviction, on three counts, of having violated certain statutes pertaining to the sale of marihuana. The first two counts charged Marshall with knowingly receiving, concealing, transporting, and

409 F.2d 926
selling contraband as prohibited by 21 U.S.C. § 176a.1 The third count charged him with failure to have obtained a written order form issued by the Secretary of the Treasury as required by 26 U.S.C. § 4742(a).2 Marshall was sentenced to a seven year term of confinement on each count, with the three sentences to run concurrently

Marshall bases his appeal on two specific grounds. First, he insists that the District Court erred in permitting a testifying Government agent to relate conversations between Marshall and a Government informant, one Humphrey, which the agent overheard by means of an electronic transmitter hidden on the person of the informant. Secondly, the appellant challenges the constitutionality of his conviction under the federal marihuana statutes, claiming it violative of his privilege against self-incrimination.

ADMISSIBILITY OF THE AGENT'S TESTIMONY

On December 2, 1965, Government agent Casey met with the informant Humphrey and gave him a small radio transmitter and $250. Agent Casey then followed Humphrey to an apartment building and waited outside with his radio receiver. Humphrey, equipped with the transmitter, entered a room where he was introduced to Marshall and a person named Penny Mancini. The informant said that he wished to purchase marihuana but Marshall advised him that there was none immediately available and that certain phone calls would have to be made. After making several calls, Marshall told Humphrey that he was leaving the apartment and advised Humphrey to do the same for a short period of time. Humphrey followed the appellant's instructions and, after leaving the apartment, met with agent Casey. After a short meeting, the informant again went to the apartment with the hidden transmitter. Casey followed him. At the apartment, the informant was met by Penny and Marshall, who himself had just returned. Humphrey was told that Marshall was again leaving but that this time he should wait at the apartment with Penny until Marshall called. Approximately one hour later, Penny received a phone call and gave Humphrey a note bearing the address of another building in the neighborhood. The informant proceeded to this address, where he met Marshall and exchanged $230 for two kilograms of marihuana. Marshall's arrest, trial, and conviction followed.

At the trial, both the informant and agent Casey testified about the conversations between Humphrey, Penny, and the appellant. The testimony was received without objection, but now, Marshall strenuously urges that agent Casey's testimony should have been excluded as the product of an unlawful search and seizure. United States v. White, 405 F.2d 838 (7th Cir. in banc 1969). But see United States v. Kaufer, 406 F.2d 550 (2d Cir. Jan. 14, 1969). See also Katz v. United States, 389 U.S. 347, 88 S.Ct. 507,

409 F.2d 927
19 L.Ed.2d 576 (1967); Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966)

It is elementary that if objections are not made at the time evidence is offered, the admissibility of the evidence cannot be questioned on appeal. See, e. g., Hansberry v. United States, 295 F.2d 800 (9th Cir. 1961). Under Rule 52(b) of the Federal Rules of Criminal Procedure, we are empowered, in the exercise of sound discretion, to take notice of "plain errors," even if committed without objection. Gilbert v. United States, 307 F.2d 322 (9th Cir.), cert. denied, 372 U.S. 969, 83 S.Ct. 1095, 10 L.Ed.2d 132 (1962). We generally believe, however, that we should invoke Rule 52(b) in the very...

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43 practice notes
  • U.S. v. Bailie, No. 96-30047
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 8, 1996
    ...process" or to prevent a "miscarriage of justice." Guam v. Alvarez, 763 F.2d 1036, 1038 (9th Cir.1985) (quoting Marshall v. United States, 409 F.2d 925, 927 (9th We also do not believe that counsel's error, assuming it was error, constitutes ineffective assistance of counsel. To demonstrate......
  • United States v. Cook, No. 26458.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 28, 1972
    ...integrity and reputation of the judicial process. United States v. Bacall, 443 F.2d 1050, 1063 (9th Cir. 1971); Marshall v. United States, 409 F.2d 925, 927 (9th Cir. 1969). Here, we do not believe that the remarks of the court resulted in a miscarriage of justice or, in any manner, invaded......
  • U.S. v. Perez, Nos. 94-10313
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 20, 1997
    ...circumstances, such as "when the integrity of the judicial process itself would otherwise suffer." Id. (quoting Marshall v. United States, 409 F.2d 925, 927 (9th Cir.1969)); but see, United States v. Freeman, 6 F.3d 586, 600 (9th Cir.1993) (conducting a plain error review of the omission of......
  • U.S. v. Giese, No. 74-3407
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 2, 1979
    ...order to prevent miscarriage of justice or to preserve the integrity and reputation of the judicial process." Marshall v. United States, 409 F.2d 925, 927 (9th Cir. 1969). When the evidence against a defendant is so strong that the absence of prosecutorial misconduct would not have changed ......
  • Request a trial to view additional results
43 cases
  • U.S. v. Bailie, No. 96-30047
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • October 8, 1996
    ...process" or to prevent a "miscarriage of justice." Guam v. Alvarez, 763 F.2d 1036, 1038 (9th Cir.1985) (quoting Marshall v. United States, 409 F.2d 925, 927 (9th We also do not believe that counsel's error, assuming it was error, constitutes ineffective assistance of counsel. To demonstrate......
  • United States v. Cook, No. 26458.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • September 28, 1972
    ...integrity and reputation of the judicial process. United States v. Bacall, 443 F.2d 1050, 1063 (9th Cir. 1971); Marshall v. United States, 409 F.2d 925, 927 (9th Cir. 1969). Here, we do not believe that the remarks of the court resulted in a miscarriage of justice or, in any manner, invaded......
  • U.S. v. Perez, Nos. 94-10313
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 20, 1997
    ...circumstances, such as "when the integrity of the judicial process itself would otherwise suffer." Id. (quoting Marshall v. United States, 409 F.2d 925, 927 (9th Cir.1969)); but see, United States v. Freeman, 6 F.3d 586, 600 (9th Cir.1993) (conducting a plain error review of the omission of......
  • U.S. v. Giese, No. 74-3407
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 2, 1979
    ...order to prevent miscarriage of justice or to preserve the integrity and reputation of the judicial process." Marshall v. United States, 409 F.2d 925, 927 (9th Cir. 1969). When the evidence against a defendant is so strong that the absence of prosecutorial misconduct would not have changed ......
  • Request a trial to view additional results

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