Summary
In U.S. v. Anderson, 485 F.2d 239 (C.A.5, 1973), cert. denied, 415 U.S. 958, 94 S.Ct. 1487, 39 L.Ed.2d 573 (1974), a duplex residence with its own grounds was described in a search warrant as 1209 Avenue Q. Apartment B. We held a search of the flower bed outside the house was valid under the warrant.
Summary of this case from United States v. NapoliOpinion
No. 73-1899. Summary Calendar.
Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 431 F.2d 409, Part I, (5th Cir. 1970).
October 10, 1973.
Theodore Klein, Miami, Fla., Court appointed for defendants-appellants.
Robert W. Rust, U.S. Atty., Harold F. Keefe, Asst. U.S. Atty., Miami, Fla., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before THORNBERRY, GOLDBERG and RONEY, Circuit Judges.
We affirm the conviction of these two defendants on various counts of knowing and intentional possession of heroin with intent to distribute.
(1) The flower bed outside the house was part of the residence described in the search warrant as 1209 Avenue Q, Apartment B, this being a duplex house with its own grounds and dissimilar to the hotel, store and apartment houses in the cases upon which appellants rely.
(2) Defendants were properly joined under Rule 8(b), Federal Rules of Criminal Procedure. Denial of a motion for severance was not an abuse of the discretion reposed in the trial court in such matters.
(3) Any possible error concerning the unobjected to, volunteered hearsay testimony was rendered harmless beyond a reasonable doubt in view of the total evidence produced at trial.
Affirmed.