Apple & Cohen, Irving D. Apple, and Theodore A. Cohen, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, and John A. Mitchell, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and JERTBERG, Circuit Judges, and PENCE, District Judge.

PER CURIAM.

Appellant was indicted in Count I for the sale of heroin on June 22, 1959; in Count II for the possession or concealment of heroin on June 22, 1959; and in Count III for possession and concealment of marijuana on June 21, 1960. Upon pleas of not guilty to each count, the trial judge severed Count III. A jury found appellant guilty of Counts I and II, and appellant was sentenced to two concurrent five year terms. Count III was dismissed.

Appellant urges as grounds for appeal:

I. Insufficiency of the evidence of possession as to both counts.

II. The federal rule that an accused can be convicted by the uncorroborated testimony of an accomplice should be changed.

III. Error in instructions with respect to:

a) the burden of proof on defendant

b) presumptions created by unexplained possession of drugs

IV. The presumption in 21 U.S.C. § 174 is unconstitutional:

a) because it violates the due process clause

b) because no rational basis therefor

V. Prejudicial error of prosecutor in argument to the jury.

We adopt the government's statement as to the facts of the case,1 as we must. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.

* Possession need not be actual possession, if there is circumstantial evidence sufficient to establish dominion and control. Rodella v. United States, 9 Cir., 1960, 286 F.2d 306; Cellino v. United States, 9 Cir., 1960, 276 F.2d 941. There was sufficient, substantial evidence to go to the jury, and to convict, if the jury believed the testimony of Keith Wallace.

II

Counsel asks us to change the federal rule on the lack of necessity of corroboration of the testimony of an accomplice. This we have refused, and do refuse, to do. Audett v. United States, 9 Cir., 1959, 265 F.2d 837, notes 45 and 46, and cases cited; Williams v. United States, 9 Cir., 1962, 308 F.2d 664; Toles v. United States, 9 Cir., 1962, 308 F.2d 590; Bible v. United States, 9 Cir., 1963, 314 F.2d 106.

III

The first instruction objected to was favorable to appellant. But whether it was or not, no objection was made to it when it was given, and any objection was waived. Walker v. United States, 9 Cir., 1962, 298 F.2d 217; O'Neal v. United States, 9 Cir., 1962, 310 F.2d 175. No point is made that the instruction is an incorrect statement of law, merely that it is not applicable to the facts of this case. Under such circumstance, it is peculiarly defense counsel's obligation to make timely objection. Defendant's interpretation of the facts would eliminate and fail to consider much testimony favorable to the prosecution.

The second instruction complained about would be error only if the presumption contained in 21 U.S.C. § 174 is unconstitutional.

IV

Section 174 of Title 21 United States Code, with its presumption, is not unconstitutional. Caudillo v. United States, 9 Cir., 1958, 253 F.2d 513, certiorari denied. Romero v. United States, 357 U.S. 931, 79 S.Ct. 1375, 2 L.Ed.2d 1373.

V

Under this point, appellant cites good law, Berger v. United States, 1935, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, wholly inapplicable to the factual situation disclosed by the record.2 There was clearly no prejudicial misconduct, just the good, ordinary and usual arguments presented to juries by prosecutors.

But even had there been a taint of unfairness or prejudice, no voice was raised in protest ? no objection ever raised ? no chance given the trial court to cure any alleged error. This is a complete waiver.

Finding no error, and the record disclosing appellant had a fair trial, the judgments of conviction on Counts I and II are

Affirmed.

  (a) "We are not dealing here with East Los Angeles, simple marihuana peddlers, these are West Los Angeles people, clever. No agent gets in with these people, must use informers. That's part of the game. It's a necessity." (R. T. 112, 133.)

  (b) "Remember something else, under our rules, his earlier statements are available. He was cross-examined and he could have been cross-examined on any earlier statements had he differed from them greatly. This must be the same story he has originally told." (R.T. 115.)

  (c) "Of course, the agents remember the exact details better than Wallace. They are trained to do so." (R.T. 116.)

  (d) "I would like some day to open a narcotic file on my desk and find out that the chief informant for the Government is the President of the Bank of America and he has gone out and made a buy. You don't get people like that; you don't use them as informers * * * the way these people do business, they have very little conversation to make a sale * * * in fact, that's the way they do business, as little conversation as possible * * * remember there is very little conversation needed when narcotic sales take place, almost none * * * It is indeed not a perfect case. There is no Fargo Device and counsel makes a point, why didn't you have a transmitting device? They happen to have one device for 40 agents. They are often not used in these cases * * * you see a dozen informants take the stand and they are not eager witnesses." (R.T. 125-129.)