William T. Price, Appellant, v. United States of America, Appellee, 249 F.2d 17 (9th Cir. 1957)

Appellant, who is charged with concealing and facilitating the concealment and transportation of heroin, has moved this court for a continuance and for the appointment of counsel. He has also filed a brief on the merits.

From an examination of appellant's brief and of the transcript of record, we are convinced that no useful purpose would be served by granting appellant a continuance or by appointing counsel for him. His brief shows that he is capable of representing himself adequately, and we do not think that appointed counsel could materially improve upon appellant's written presentation. Upon our suggestion, counsel for the government did not present oral argument, and the case was submitted on the briefs.

Pointing to the fact that no drugs were found on appellant's person, appellant contends that he was prejudiced because counsel for the government in his opening remarks to the jury said that federal agents arrested appellant and another person, "and on each of these persons found narcotic drugs." But the quoted statement was immediately followed by these explanatory words: "and in particular right alongside of the defendant's bed lay a bindle of narcotic drugs, to wit, 13 grains which we have charged."

In view of this explanatory statement, and since the words complained of were not evidence, but merely a statement of what the government expected to prove (the jury being admonished that they were not to consider such statements as evidence in the case), and since the evidence fully disclosed to the jury where the drugs were found, the statement relied upon was not prejudicial.

The remaining specification of error relates to the sufficiency of the evidence to support the verdict. We find the evidence to be sufficient.

Both motions are denied, and the judgment appealed from is affirmed.

LEMMON, Circuit Judge (concurring).

I concur in the result.

My associates have seen fit to dignify this appeal with a six-paragraph per curiam opinion. In my view, the appeal is frivolous, and should be hustled out of court forthwith.