Semler v. United States, 18705.

• Citation: 332 F.2d 6
• Decision Date: 16 March 1964
• Docket Number: No. 18705.,18705.
• Parties: Norman Nathan SEMLER, Appellant, v. The UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

332 F.2d 6 (1964)

Norman Nathan SEMLER, Appellant, v. The UNITED STATES of America, Appellee.

No. 18705.

United States Court of Appeals Ninth Circuit.

March 16, 1964.

Rogan & Radding, and David M. Richman, Burbank, Cal., for appellant.

Charles A. Muecke, U. S. Atty., John E. Lindberg, Asst. U. S. Atty., and Jo Ann Diamos, Asst. U. S. Atty., Tucson, Ariz., for appellee.

Before BARNES, MERRILL and KOELSCH, Circuit Judges.

MERRILL, Circuit Judge.

Appellant stands convicted of conspiracy to steal and receive Government property in violation of 18 U.S.C. § 371, and, in three counts, of having received Government property knowing it to be stolen, in violation of 18 U.S.C. § 641.

Appellant asserts that the evidence was insufficient to sustain a conviction as to count 1, the conspiracy count, or as to counts 5, 7 and 10, the substantive counts.

In support of this assertion appellant relies solely on his own testimony to the effect that he did not know that the property purchased had been stolen. Evidence of knowledge was presented through testimony of Sergeant Howell (as to the entire period of the conspiracy as well as to the incidents covered by counts 5, 7 and 10), and Sergeant Wooldridge (as to the latter part of the conspiracy period and the incidents covered by counts 5, 7 and 10). It is apparent that the jury chose to believe these Government witnesses rather than appellant. With knowledge thus established there was ample evidence of guilt, not only of the substantive counts but of the conspiracy as well.

Appellant asserts error in the court's permitting Sergeant Howell to invoke the privilege of the Fifth Amendment and refuse to testify on cross-examination as to sales of stolen property to others than appellant. Appellant's position is that the witness had waived the privilege by testifying freely on direct examination as to the period of time involved.

We are satisfied that there was no waiver. The cross-examination in question was on a subject not gone into on direct.

Appellant asserts that he was denied a fair trial in that he was denied a severance and was subjected to a mass trial with those who had participated in the thefts. The motion for severance was made and argued more than a month before trial. It was based upon the ground that there was no relation between the substantive counts and the conspiracy counts. It was properly denied upon this ground. The indictment demonstrated that the overt acts involved in count 1 were also involved in the substantive counts.

Appellant's motion was not thereafter renewed. If, for any reason other than that asserted, severance should have been granted the right was waived.

Appellant asserts that adverse...