426 F2d 296 United States v. B Kelley

426 F.2d 296

UNITED STATES of America, Plaintiff and Appellee,
Delano B. KELLEY, Defendant and Appellant.

No. 24392.

United States Court of Appeals, Ninth Circuit.

April 10, 1970, Rehearing Denied Aug. 3, 1970.

Lawrence J. Lee (argued), of Mitchell, Silberberg & Knupp, Los Angeles, Cal., for defendant and appellant.

David P. Curnow (argued), Asst. U.S. Atty., James E. Shekoyan, Irving Prager, Robert L. Brosio, Asst. U.S. Atty., Wm. Matthew Byrne, U.S. Atty., Los Angeles, Cal., for plaintiff and appellee.

Before CHAMBERS and TRASK, Circuit Judges, and JAMESON, District judge1


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The judgment of conviction in this narcotics case is affirmed.


There was a conviction by a jury on two heroin counts and one on cocaine. If the cocaine count stood alone, Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed. 610, would require a reversal.


As to the heroin counts, there are contentions of inadequate representation of counsel, objections to admission of allegedly hearsay testimony, and now an exception is taken to a jury instruction on possession.


The possession instruction actually was favorable to Kelley. We find that the representation was reasonably competent and not a sham.


The hearsay was admitted for a very limited purpose to show 'setting' and the jury was carefully cautioned as to its use. There was no such caution sounded in Sanchez v. United States, 8 Cir., 293 F.2d 260, which appellant heavily relies upon.


The Honorable William J. Jameson, United States District Judge for the District of Montana, sitting by designation