435 F2d 1312 United States v. Johnson

435 F.2d 1312

UNITED STATES of America, Plaintiff-Appellee,
Donald Maurice JOHNSON, Appellant.

No. 26058.

United States Court of Appeals, Ninth Circuit.

Jan. 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.


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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.