United States of America, Plaintiff-appellee, v. James Howard, Defendant-appellant, 451 F.2d 1003 (5th Cir. 1971)

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US Court of Appeals for the Fifth Circuit - 451 F.2d 1003 (5th Cir. 1971) 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:


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.

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.

The conviction must be, and is, affirmed.

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