United States of America, Plaintiff-appellee, v. Donald Maurice Johnson, Appellant, 435 F.2d 1312 (9th Cir. 1971)

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US Court of Appeals for the Ninth Circuit - 435 F.2d 1312 (9th Cir. 1971)

January 14, 1971

Appeal from the United States District Court for the Southern District of California; David W. Williams, Judge.

Rush Glick (argued), San Diego, Cal., for appellant.

Harry D. Steward, U. S. Atty., Joseph A. Milchen, Asst. U. S. Atty., San Diego, Cal., for appellee.

Before CHAMBERS, DUNIWAY and TRASK, Circuit Judges.


The judgment of conviction is affirmed.

There was sufficient evidence on the heroin count (the one seriously contested) to permit the case to go to the jury. We do not find that the presumption allowed by Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610, was used.

The point about no members of appellant's race being on the jury falls under Swain v. Alabama, 380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759, because there was no tender of a showing that such members were systematically excluded.

The testimony about association with another charged with a crime we find harmless, if it was improperly admitted.