415 F2d 1139 Gardner v. United States

415 F.2d 1139

William Clinton GARDNER, Appellant,
UNITED STATES of America, Appellee.

No. 22888.

United States Court of Appeals Ninth Circuit.

Sept. 3, 1969.

Arthur Mabry (argued), Los Angeles, Cal., for appellant.

Edward B. Frank (argued), Asst. U.S. Atty., Wm. Matthew Byrne, Jr., U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Crim. Div., Howard B. Frank, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS and DUNIWAY, Circuit Judges, and SMITH, District judge.1


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The judgment of conviction is affirmed.


The point on the method of search and seizure under a search warrant was not made before trial as required by Rule 41(e) Fed.R.Crim.P. Late in the trial an issue of probable cause was tendered on the search warrant. Thus, the Government was not obligated to meet a challenge that was never made, i.e., method.


There were convictions on five counts. The sentences were wholly concurrent. On count, four, we find the case close on sufficiency of the evidence, but while we are authorized to consider the point, we still need not do it.


There was sufficient circumstantial and direct evidence to sustain the convictions on four counts.


Honorable Russell E. Smith, United States District Judge, Missoula, Montana, sitting by designation