Charles Berry, Appellant, v. United States of America, Appellee, 253 F.2d 875 (D.C. Cir. 1958)

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US Court of Appeals for the District of Columbia Circuit - 253 F.2d 875 (D.C. Cir. 1958) Argued February 18, 1958
Decided March 13, 1958

Mr. Robert L. Ackerly, Washington, D. C. (appointed by the District Court), for appellant.

Mr. Carl W. Belcher, Asst. U.S. Atty., with whom Messrs. Oliver Gasch, U.S. Atty., Lewis Carroll and Arthur J. McLaughlin, Asst. U.S. Attys., were on the brief, for appellee.

Before BAZELON and BURGER, Circuit Judges, and MADDEN, Judge of the Court of Claims.* 


Appellant seeks reversal of his conviction on Counts 7, 8 and 9 of an indictment against him and one Harding for violation of the narcotics laws.1  26 U. S.C. §§ 4704(a), 4705(a), 21 U.S.C.A. § 174. He complains about the admission of certain testimony and the inadequacy of certain instructions. But the points were not raised below and the circumstances do not impel us to invoke our discretion under Fed.Rules Crim. Proc. Rule 52(b), 18 U.S.C. to note them now.

The contention is also made that the evidence is insufficient to sustain the convictions on any of the three counts. We do not agree. The evidence showed that appellant, in the company of his co-defendant Harding, delivered narcotics to the Government informer on August 29, 1956, and that Harding, in the company of appellant, made a delivery on August 31, 1956. Even though appellant was acquitted on the counts relating to the August 29 transaction, the jury could nevertheless consider evidence of that transaction to find beyond a reasonable doubt that appellant and Harding were partners in the August 31 transaction.



Sitting by designation pursuant to the provisions of 28 U.S.C. § 291(a)


Appellant was acquitted on Counts 1, 2 and 3 charging him and Harding with violations on August 29, 1956. Counts 4, 5 and 6 referred only to Harding