Argued May 17, 1963.
Decided May 31, 1963. Petition for Rehearing En Banc Denied En Banc July 9, 1963.
Mr. James E. Morgan, appellant pro se.
Mr. Barry Sidman, Asst. U.S. Atty., with whom Messrs. David C. Acheson, U.S. Atty., Frank Q. Nebeker, Asst. U.S. Atty., and Arthur J. McLaughlin, Asst. U.S. Atty., at the time the brief was filed, were on the brief, for appellee.
Before FAHY, BASTIAN and WRIGHT, Circuit Judges.
Appellant was charged with violation of the narcotic laws in an indictment containing five counts. Three counts involved an alleged sale by him in November 1959. The other two were related to alleged illegal possession in March 1960. Appellant moved to suppress evidence obtained when he was arrested in March on the ground the arrest was unlawful. The motion to suppress was granted and appellant was tried only on the first three counts. None of the challenged evidence was used in obtaining the convictions, which were based on altogether different evidence relating to the sale in November 1959. The convictions rest primarily upon the testimony of an officer of the Narcotics Squad that he bought narcotics from appellant. True, there was alibi evidence on behalf of appellant, but the question of his guilt was for the jury to decide, and this they did.
Appellant's chief contention is that his conviction should be reversed because his arrest in March was unlawful and the evidence then obtained was illegally secured by the Government. But since this evidence was suppressed and none of it was used at his trial his contention cannot be sustained.
We find no error, and accordingly the judgment must be