United States of America, Plaintiff-appellee, v. Arthur Marron, Defendant-appellant, 423 F.2d 31 (9th Cir. 1970)

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U.S. Court of Appeals for the Ninth Circuit - 423 F.2d 31 (9th Cir. 1970)

January 27, 1970

Stephen D. Miller (argued), Beverly Hills, Cal., for appellant.

Darrell W. MacIntyre (argued), Asst. U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Wm. Matthew Byrne, U. S. Atty., Los Angeles, Cal., for appellee.

Before MERRILL, WRIGHT and KILKENNY, Circuit Judges.


Appellant, convicted of concealing, possessing and selling heroin in violation of 21 U.S.C. § 174, attacks the provision of that section that permits unexplained possession to be sufficient to authorize conviction. He relies on Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969). The Supreme Court has rejected this contention in Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970).

Appellant's entrapment defense was sufficiently rebutted by the testimony of the Government informer to warrant submission of the matter to the jury. It was not error, therefore, to refuse to rule that the defense had been established as matter of law.

The remarks of counsel for the United States from which erroneous inference might have been drawn as to the nature and effect of appellant's prior felony conviction was the subject of prompt, positive and comprehensive admonitions to the jury by the trial judge. The circumstances, in our judgment, were not such as to require mistrial.

Judgment affirmed.