Montgomery v. United States, 22461.
Decision Date | 28 February 1969 |
Docket Number | No. 22461.,22461. |
Citation | 407 F.2d 1312 |
Parties | Roosevelt MONTGOMERY, Appellant, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Luke McKissack, Hollywood, Cal., for appellant.
Wm. M. Byrne, Jr., U. S. Atty., Anthony M. Glassman, Robert L. Brosio, Wm. J. Tomlinson, Asst. U. S. Attys., Los Angeles, Cal., for appellee.
Before MERRILL, ELY and CARTER, Circuit Judges.
Appellant takes this appeal from judgment of conviction of receiving, concealing, selling and facilitating the concealment, transportation and sale of heroin in violation of 21 U.S.C. § 174.
During trial a narcotics agent testified to an oral confession given by appellant. Appellant contends that his confession was inadmissible under rules laid down in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This contention is not properly before us. No objection was made to the admission of the testimony on this ground,1 nor can it be said that its admission was plain error.2
Appellant complains that he was convicted on the uncorroborated testimony of an informer. He is in error; there was corroboration. Even were there not, the present rule of our court is that the uncorroborated testimony of an accomplice, if believed by the jury, will suffice. Audett v. United States, 265 F.2d 837 (9th Cir. 1959); Darden v. United States, 405 F.2d 1054 (9th Cir. 1969).
Appellant complains that he received a more severe sentence than did his accomplice, who pleaded guilty, and that his heavier sentence was imposed solely because he asserted his right to trial. We find no support in the record for this conclusion nor for any contention of discriminatory sentencing.3
Appellant contends that 21 U.S.C. § 174 is unconstitutional under the holding of Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968). We disagree. Section 174 involves no registration or licensing procedures and does not require a person to incriminate himself.
We find no merit in appellant's remaining assignments of error.
Affirmed.
1 Prior to the government agent's testifying as to the confession, counsel for appellant requested and was granted the right to question the witness on voir dire and did briefly inquire with reference to the Miranda requirements. When, in renewing his direct examination, the witness was then asked to relate his conversation with appellant, counsel objected There was no objection made on the ground that Miranda rendered the confession inadmissible. When, on cross-examination of the witness, further light was cast on the Miranda aspect no motion to strike was made.
2 Appellant, relying on People v. Fioritto, 68 Cal.2d 714, 68 Cal.Rptr. 817, 441 P.2d 625 (1968), contends that his refusal to sign a written waiver should have barred further interrogation under Miranda. However, it is not clear from the record that appellant's refusal was directed to a waiver of his Fifth Amendment rights or to a simple written...
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