United States v. Richard C. Barnes , 431 F.2d 878 ( 1970 )

431 F.2d 878

UNITED STATES of America, Respondent-Appellee,
v.
Richard C. BARNES, Petitioner-Appellant.

No. 25707.

United States Court of Appeals, Ninth Circuit.

Aug. 24, 1970, Rehearing Denied Sept. 22, 1970.

D. Thompson Slutes, Tucson, Ariz. (argued), of Lesher & Scruggs, Tucson, Ariz., Dudley S. Welker, of Anderson & Welker, Safford, Ariz., for appellant.

James Wilkes (argued), Asst. U.S. Atty., Richard K. Burke, U.S. Atty., Tucson, Ariz., for appellee.

Before BARNES, BROWNING and DUNIWAY, Circuit Judges.

BARNES, Circuit Judge:

1

Appellant was charged in Count One with offering a bribe of $100 to two immigration officials on May 26, 1969; and in Count Two with the giving of a bribe of $25 to an immigration official on June 23, 1969.

2

Appellant was convicted on Count Two and acquitted on Count One. He charges as error that the jury's verdicts were inconsistent; that the government split one crime into two counts improperly, that although this appellant was not in custody he was entitled to a Miranda type warning; and that the government failed to comply with local Rule 42, setting up a dead-line for notice to counsel of defendant's admissions.

3

While we may compliment appellant's counsel on the able and imaginative manner in which the alleged errors were urged, (a) we find no inconsistency in the two verdicts; (b) the government's charge of two counts was proper (United States v. Michelson, 165 F.2d 732 (2nd Cir.), aff'd335 U.S. 469, 69 S. Ct. 213, 93 L. Ed. 168 (1948)); (c) a person is entitled to no warning during the commission of a crime (Grier v. United States, 345 F.2d 523, 524 (9th Cir. 1965); Feldstein v. United States, 429 F.2d 1092 (9th Cir. 1970); and (d) Rule 42 expressly provides the trial court may excuse compliance with the rule which it here did.

4

We affirm the conviction.