United States of America, and v. Vicente Baltierra-Frausto, And

472 F.2d 597

UNITED STATES of America, Plaintiff and Appellee,
v.
Vicente BALTIERRA-FRAUSTO, Defendant and Appellant.

No. 72-2946.

United States Court of Appeals,
Ninth Circuit.

Jan. 17, 1973.
Certiorari Denied May 7, 1973.
See 93 S. Ct. 2160.

Gordon Thompson, Jr., District Judge Lewis A. Wenzell (argued), San Diego, Cal., for defendant and appellant.

Douglas G. Hendricks, Asst. U. S. Atty. (argued), Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff and appellee.

Before CHAMBERS and TRASK, Circuit Judges, and BYRNE, Senior District Judge.*

PER CURIAM:

1

This case of conspiracy to import marijuana is affirmed. The whole defense concerned the admission into evidence of the defendant's oral confession. We find the ruling admitting the statements was quite proper. The Miranda warning was adequate and given twice. On the first warning, the waiver was equivocal. But the oral waiver was not equivocal on the second warning. There was no duty to give a third warning or to lecture the defendant on the elements of the warning.

2

Therefore, the trial judge's hearing of some evidence from the co-defendant with Baltierra-Frausto absent was not prejudicial, although it was improper procedure. Cf. Singleton v. United States, 381 F.2d 1, 9 Cir., 1967, cert. denied 389 U.S. 1024, 88 S. Ct. 601, 19 L. Ed. 2d 673, 1967.

*

Honorable William M. Byrne, Sr., United States Senior District Judge, Central District of California, sitting by designation