Opinion
No. 21215.
February 15, 1967.
John J. Murray, San Francisco, Cal., for appellant.
John K. Van de Kamp, U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief, Crim. Div., William J. Gargaro, Jr., Asst. U.S. Atty., Los Angeles, Cal., for appellee.
Before CHAMBERS, Circuit Judge, JONES, Judge of the Court of Claims, and HAMLEY, Circuit Judge.
After our reversal, Morales v. United States, 9 Cir., 344 F.2d 846, this narcotics case was retried before a jury and another conviction resulted.
The one point of substance on this appeal is whether the second judge should have held a hearing out of the presence of the jury as to the reliability and voluntariness of a confession or incriminating statements. The government makes a good argument that the hearings associated with the first trial were enough. However, we find that in the second trial it was defendant's counsel that opened up the subject of what Morales said to the officers. Thus, appellant cannot be heard to now complain about his statements getting all over the record.
Another point, full advice of his rights at the threshold of contact with the officers, made by Morales is foreclosed by Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882.
A third point made here we do not believe was raised at the trial, and we do not consider it here.