Stein v. United States, 16043.

• Citation: 263 F.2d 579
• Decision Date: 04 February 1959
• Docket Number: No. 16043.,16043.
• Parties: Bernard STEIN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

263 F.2d 579 (1959)

Bernard STEIN, Appellant, v. UNITED STATES of America, Appellee.

No. 16043.

United States Court of Appeals Ninth Circuit.

February 4, 1959.

Russell E. Parsons, Beverly Hills, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Leila F. Bulgrin, Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before FEE, CHAMBERS and BARNES, Circuit Judges.

CHAMBERS, Circuit Judge.

Stein has been convicted upon two narcotics counts and sentenced to 12 years imprisonment on each count, the sentences to run concurrently. The defendant waived a jury.

Both counts were under 21 U.S.C.A. § 174. The date of the alleged event was March 24, 1957, and the place of it on Ilona Street near Beverly Glen Boulevard. (A nearby thoroughfare better known than Ilona is Pico Boulevard.) The first count charged that Stein did "receive, conceal and transport, and facilitate the concealment and transportation" of about one ounce and 253 grains of heroin. The second count charged that he did "sell and facilitate the sale" of the same heroin.

One of the defendant's main points on appeal is that the evidence is insufficient to sustain the charge (the first count) of receiving, concealing and transporting or facilitating the accomplishment thereof. We disagree, but do not discuss the point in detail because it is now established in federal jurisprudence beyond cavil that if the conviction is good on either count, when identical concurrent sentences are imposed, then the appellate court is not to concern itself with the alleged weaknesses on one count, if the other count is good. And, here there is unquestionably adequate evidence to sustain the second count: the sale count.¹ See Chin Bick Wah v. United States, 9 Cir., 245 F.2d 274, certiorari denied 355 U.S. 870, 78 S.Ct. 120, 2 L.Ed.2d 76.

Defendant-appellant also assigns as error the admission in evidence of an oral statement allegedly made to narcotics officer Feldman. The statement was: "You see I help an S.O.B. and I get in trouble." The claim is that the statement was not free and voluntary. It is claimed that the statement was made under a virtual promise of immunity. The incident involving the remark was a conference between agent Feldman and Stein which was arranged to be held in the office of Stein's counsel.² Stein met Feldman at the designated office and then the two went elsewhere. We note several infirmities in the merits of this specification of error. First, the remark in context doesn't mean very much. It is not plausible that the able trial judge gave it much weight or that it tipped the scales in the slightest. It was just a case of whether the trial judge believed the prosecution version of what happened on March 24 or whether he believed the defense story of innocence. Second, no objection to the receipt of the testimony was made until it was in the record and had been well "batted around." Third, we do not find from an examination of the record that it was necessarily made under any promise of immunity. And it certainly was made under no compulsion. Fourth, if we should consider the point, it would be in a curious posture. Stein says the remark did not actually mean anything harmful to him in fact. And the record is positive that the defendant has never admitted, but has always denied, he had anything to do with heroin or any narcotic on the day in question.

Stein for his third point here pleads entrapment. Here again we pass over the anomaly of the position of "I didn't do...