United States of America, Plaintiff-appellee, v. George Mcdonald Hamer, Defendant-appellant, 469 F.2d 80 (9th Cir. 1972)

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US Court of Appeals for the Ninth Circuit - 469 F.2d 80 (9th Cir. 1972) Nov. 13, 1972

Joseph A. Milchen (argued), of McInerney, Milchen & Frank, San Diego, Cal., for defendant-appellant.

Thomas M. Coffin, Asst. U. S. Atty. (argued), Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before ELY and HUFSTEDLER, Circuit Judges, and TALBOT SMITH,* District Judge.


Hamer was convicted on nineteen charges of having illegally transported aliens in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a) (2). The district judge sentenced Hamer to a period of confinement for a term of three years on each of the nineteen convictions and ordered that each of the sentences be served concurrently with the others. From the record, it appears that the evidence was insufficient to support the convictions on counts three to five, (incl.), counts eight to fifteen, (incl.), and counts seventeen to nineteen, (incl.) of the nineteen-count indictment. The evidence was sufficient, however, to support Hamer's convictions on the other counts; hence, under the concurrent sentence principle, we choose not to elaborate upon the reasons for the impropriety of the convictions on the counts above specified.

Hamer presents three other contentions: (1) That the prosecution was erroneously permitted to impeach one of its own witnesses, (2) that the defense was unduly restricted in cross-examination, and (3) that there was misconduct on the part of one or more of the jurors. This latter contention is not adequately supported by the record, and assuming, arguendo, that there was technical error in the two respects relating to the examination and cross-examination of witnesses, the error was not of such dimension as to require reversal. On three of the counts of which Hamer was convicted, the prosecution's evidence of his guilt was overwhelming.


*The Honorable Talbot Smith, United States District Judge, Detroit, Michigan, sitting by designation.