Page v. United States
| Decision Date | 22 March 1966 |
| Docket Number | No. 20132.,20132. |
| Citation | 356 F.2d 337 |
| Parties | Earnest T. PAGE, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Donald C. Duchow, San Francisco, Cal., for appellant.
Cecil F. Poole, U. S. Atty., Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for appellee.
Before HAMLEY, MERRILL and KOELSCH, Circuit Judges.
Earnest T. Page was charged in seven counts of a twenty-count indictment with violations of the federal narcotic laws. One of these counts was dismissed, leaving six counts (Nos. 10, 11, 14, 15, 16 and 19) standing against him. Page was tried by a jury and convicted on all six counts. He was sentenced to imprisonment for twenty years on each of the counts, the sentences to run concurrently. Page then took this appeal.
In his opening brief on appeal, prepared by retained counsel, Page makes two specifications of error. Both relate to his conviction on counts 16 and 19, and neither makes any reference to the transactions involved in counts 10, 11, 14 and 15. The argument in Page's opening brief, following the limited scope of the specifications of error, deals only with Page's conviction on counts 16 and 19.
Calling attention to these circumstances, the United States has moved to dismiss the appeal. It argues that even if there is merit in appellant's argument directed to his convictions on counts 16 and 19, the concurrent sentences on counts 10, 11, 14 and 15 will remain in effect, and therefore nothing will be accomplished by proceeding with the appeal.
It has been held time and again that where, on appeal, a conviction on one count is found to be valid, the appellate court will not look into the validity of convictions on other counts carrying sentences concurrent with that of the valid conviction. See Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 2 L.Ed.2d 321; Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 73 L.Ed. 692; Mendez v. United States, 9 Cir., 349 F.2d 650, 652; Head v. United States, 9 Cir., 346 F.2d 194, 196; Brothers v. United States, 9 Cir., 328 F.2d 151, 157, and cases therein cited.
It is true, however, that if the asserted error as to one or more counts is of such a prejudicial nature that it infected the entire trial and deprived appellant of a fair trial on the other counts, such error constitutes, in effect, error as to all counts.
Page made no contention in the trial court, by motion for a new trial or otherwise, that the asserted errors as to counts 16 and 19 deprived him of a fair trial on the other four counts. Nor did he make such a contention in his opening brief. The Government's motion to dismiss the appeal was served and filed on December 8, 1965, but retained counsel for appellant made no written response thereto.
Oral argument was had on December 27, 1965, and then, for the first time, counsel for appellant argued that the claimed error as to counts 16 and 19 deprived him of a fair trial as to counts 10, 11, 14 and 15. Counsel asserted that failure to advance this argument in his opening brief was an inadvertence, and requested an opportunity to file a supplement to his opening brief.
We have carefully examined the transcript of record which has been filed and are able to say now that, in our opinion, Page's convictions on counts 10, 11, 14 and 15 were not tainted by the asserted errors as to counts 16 and 19.
In count 16, Page was charged with concealment of 528.950 grams of heroin on July 1, 1964, in violation of 21 U.S.C. § 174. In count 19, Page was charged with concealing 897.360 grams of marihuana on July 1, 1964, in violation of 21 U.S.C. § 176a. One of the specifications of error directed to these two counts raised the question of unlawful search and seizure at Page's home, where the heroin and marihuana described in those counts were found. The other specification of error directed to those counts raised the question of whether the trial court had erred in refusing to allow appellant, out of the presence of the jury, to present further argument on appellant's motion to suppress the heroin and marihuana seized at Page's home on July 1, 1964.
The transactions described in counts 10, 11, 14 and 15, were entirely independent of those described in counts 16 and 19. They occurred at...
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