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438 F2d 1237 United States v. A McDonald

438 F.2d 1237

UNITED STATES of America, Plaintiff-Appellee,
v.
Arthur A. McDONALD, Defendant-Appellant.

No. 25312.

United States Court of Appeals, Ninth Circuit.

March 12, 1971.

John H. Colteaux (argued), of Ackeret & Colteaux, San Rafael, Cal., for appellant.

William C. Erxleben, Asst. U.S. Atty. (argued), Stan Pitkin, U.S. Atty., J. Byron Holcomb, Asst. U.S. Atty., Seattle, Wash., for appellee.

Before DUNIWAY, WRIGHT and KILKENNY, Circuit Judges.

PER CURIAM:

1

The judgment must be affirmed on the authority of Harris v. United States, 1959, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597. We find nothing in Turner v. United States, 1970, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 that weakens the authority of Harris. Failure of the court to instruct on the so-called presumption contained in 26 U.S.C. 4704(a) did not prejudice McDonald. No instruction on the subject was requested. The jury could, and perhaps did, apply the presumption, although the court did not tell them about it. The court did correctly tell the jury the necessary elements of the offense. There was evidence from which the necessary elements could be inferred. See Turner, supra, 396 U.S. at 421-422, 90 S.Ct. 642.

2

Affirmed.