406 F2d 834 Ortega-Lira v. United States

406 F.2d 834

Sebastian ORTEGA-LIRA, Appellant,
v.
UNITED STATES of America, Appellee.

No. 20962.

United States Court of Appeals Ninth Circuit.

Jan. 3, 1969, Certiorari Denied April 7, 1969, See 89 S.Ct. 1317.

Laura C. Rothkopf (argued), Hayward, Cal., for appellant.

John Hyland, U.S. Atty., Sacramento, Cal., Stephen Suffin, I&NS, San Francisco, Cal., Wm. Shubb (argued), Asst. U.S. Atty., Sacramento, Cal., for appellee.

Before CHAMBERS, HAMLEY and MERRILL, Circuit Judges.

PER CURIAM:

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1

In this narcotics conviction review, we find ample evidence to sustain the conviction. This case is pre-Miranda, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 LEd.2d 694, so the point about the completeness of the warning given by the officers is not well taken.

2

Pre-arrest there was a rather unjustified search of premises which Ortega-Lira shared with a woman. However, nothing much was found. A telephone bill showing 'a certain telephone call' was repeatedly alluded to by several testifying officers. There was no objection to the testimony when offered. Later, before sentence when the trial court had indicated it was still willing to hear objections on the telephone call counsel made a deliberate determination not to pursue the matter. We disagree with appellant that the telephone call was a necessary link in the chain of evidence.

3

New counsel presses upon us that trial counsel was wholly inadequate. An inquiry into that subject would require us to go outside the record as it came to us from the trial court. Also, it is asserted that there is newly discovered evidence.

4

We affirm. This affirmance is without prejudice to appellant presenting in district court in appropriate proceedings the issues of adequacy of trial counsel and newly discovered evidence. These points have not been before the district court yet.