United States v. Brooks, 72-2374.
| Decision Date | 09 February 1973 |
| Docket Number | No. 72-2374.,72-2374. |
| Citation | 473 F.2d 817 |
| Parties | UNITED STATES of America, Appellee, v. David Lee BROOKS, Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Howard J. Diller, of Diller & Schmukler, New York City, for appellant.
Dwayne Keyes, U. S. Atty., Richard V. Boulger, Thomas T. Couris, Asst. U. S. Attys., Fresno, Cal., for appellee.
Before HAMLEY and MERRILL, Circuit Judges, and SCHNACKE, District Judge.*
Defendant and four others were indicted for trafficking in heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. He and one Atkinson were tried separately from the other three. Atkinson's motion for a judgment of acquittal was granted. The jury found defendant guilty and judgment was rendered upon the verdict. We affirm the judgment.
The appeal is founded upon claims that certain evidence was improperly admitted and that the evidence did not establish guilt beyond a reasonable doubt.
Some of the evidence now objected to was not objected to below. As to such evidence, no plain error appears. F.R.Crim.Proc., Rule 52; Marshall v. United States, 409 F.2d 925 (9th Cir., 1969). A declarant obviously intends that his statement to a witness be understood; it is hardly improper to allow the witness to state what was understood.
The remaining evidence was admitted on the basis of a conspiracy. A conspiracy may of course be established by circumstantial evidence, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and once a prima facie case is made out testimony of co-conspirators may be received, Sendejas v. United States, 428 F.2d 1040 (9th Cir., 1970).
The evidence was sufficient, under numerous decisions of this Court, to establish guilt beyond a reasonable doubt. E. g., Darden v. United States, 405 F.2d 1054 (9th Cir., 1969); United States v. Williams, 468 F.2d 251 (9th Cir. 1972).
Affirmed.
* Honorable Robert H. Schnacke, United States District Judge, Northern District of California, sitting by designation.
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...unless the very exceptional situation arises whereby review is necessitated to prevent a miscarriage of justice. See United States v. Brooks, 473 F.2d 817 (CA9 1973), and Vitello v. United States, 425 F.2d 416 (CA9 1970), cert. denied 400 U.S. 822, 91 S.Ct. 43, 27 L.Ed.2d 50. While the tria......
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...testimony once the prosecution established the witness's familiarity with the appellant's argot. See, e.g., United States v. Brooks, 473 F.2d 817 (9th Cir. 1973); United States v. Borrone-Iglar, 468 F.2d 419 (2d Cir. 1972); United States v. Mesarosh, 223 F.2d 449 (3d Cir. 1955), and 23 C.J.......
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U.S. v. Wysong, 75--2433
...that there was no probable cause for the arrest. In support of our view that we should not consider this contention see United States v. Brooks, 473 F.2d 817 (CA9 1973); United States v. King, 472 F.2d 1, 12, 13 (CA9 1972); United States v. Johnson, 469 F.2d 281 (CA9 1972), and Marshall v. ......
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U.S. v. Cox
...1038, 97 S.Ct. 734, 50 L.Ed.2d 749 (3rd Cir. 1976), DeLoach v. United States, 307 F.2d 653 (D.C. Cir. 1962); contra United States v. Brooks, 473 F.2d 817 (9th Cir. 1973). Under Rule 701 of the Federal Rules of Evidence, some lay expressions of opinion or inference may be permitted but only ......