451 F2d 1003 United States v. Howard

451 F.2d 1003

UNITED STATES of America, Plaintiff-Appellee,
v.
James HOWARD, Defendant-Appellant.

No. 71-1852 Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Dec. 8, 1971.

Joe J. Harrell, Pensacola, Fla., Court-appointed, for defendant-appellant.

William H. Stafford, Jr., U. S. Atty., J. Worth Owen, Asst. U. S. Atty., Pensacola, Fla., for plaintiff-appellee.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

PER CURIAM:

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1

The evidence of appellant's presence at, and participation in, the sale and transfer of LSD and marijuana adequately supports his conviction on both counts. There was testimony that, in a transaction occurring in a house occupied by appellant and codefendant Cannon, appellant assisted Cannon in counting out more than 300 tablets containing LSD; that, in appellant's presence, the tablets and marijuana were placed in one package and delivered to the purchaser; that Cannon received and counted the proceeds of the sale and then handed the money to appellant who counted it again; and that, in the presence of the purchaser, appellant and Cannon engaged in discussion concerning the use to be made of the money. This evidence was sufficient.

2

The evidence was in conflict as to the giving to appellant of a Miranda warning by an agent reading from a card. The credibility choices were for the trial judge, and we cannot say that he erred.

3

The conviction must be, and is, affirmed.

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409