United States v. Brooks, 473 F.2d 817 (9th Cir. 1973)

No. 72-2374.

Feb. 9, 1973.

Howard J. Diller, of Diller & Schmuk-ler, New York City, for appellant.

Dwayne Keyes, U. S. Atty., Richard V. Boulger, Thomas T. Couris, Asst. U. S. Attys., Fresno, Cal., for appellee.

Before HAMLEY and MERRILL, Circuit Judges, and SCHNACKE, District Judge*

PER CURIAM:

Defendant and four others were indicted for trafficking in heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. He and one Atkinson were tried separately from the other three. Atkinson’s motion for a judgment of acquittal was granted. The jury found defendant guilty and judgment was rendered upon the verdict. We affirm the judgment.

The appeal is founded upon claims that certain evidence was improperly admitted and that the evidence did not establish guilt beyond a reasonable doubt.

Some of the evidence now objected to was not objected to below. As to such evidence, no plain error appears. F.R.Crim.Proc., Rule 52; Marshall v. United States, 409 F.2d 925 (9th Cir., 1969). A declarant obviously intends that his statement to a witness be understood; it is hardly improper to allow the witness to state what was understood.

The remaining evidence was admitted on the basis of a conspiracy. A conspiracy may of course be established by circumstantial evidence, Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), and once a prima facie case is made out testimony of co-conspirators may be received, Sendejas v. United States, 428 F.2d 1040 (9th Cir., 1970).

The evidence was sufficient, under numerous decisions of this Court, to establish guilt beyond a reasonable doubt. E. g., Darden v. United States, 405 F.2d 1054 (9th Cir., 1969); United States v. Williams, 468 F.2d 251 (9th Cir. 1972).

Affirmed.