Leonard Saldana v. United States

The judgment of conviction is affirmed. We hold that the second judge of the United States District Court for the Southern District of California was legally justified sua sponte under the circumstances of this case in ordering the plea of guilty on the first and second counts withdrawn (which plea had been entered before another judge of the same court) and directing the entry of a plea of not guilty. 1 Further, we are con *353 vinced that the trial, after this change of plea, did not constitute double jeopardy 2 for the defendant.

The fifth count, the subject of a ten year sentence for Saldana, only charged “sale and facilitation of sale.” Obviously, under the testimony, Saldana was guilty of the crimes of possession of and transportation of unstamped narcotics, 4 but he was not charged with those crimes. We are of the opinion that under the evidence (upon which defendant could have had upon request proper instructions as to the elements of sale) it was a question of fact for the jury whether there was a sale as charged in the fifth count.

*354 We have examined all specifications of error and find those not mentioned hereinabove to be without substance. •

Counsel’s…

(dissenting).

I dissent from that part of the opinion which affirms the conviction on the fifth count. Saldana received a separate and independent sentence of ten years on that conviction.

In count five it is charged that on or about May 21, 1958, Saldana and one Albert Palomino “knowingly and unlawfully sold and facilitated the sale to Jayme Licuanan and Victor Segura of 10 ounces, 339 grains of heroin * * ■ contrary to 21 U.S.C.A. § 174 . Licuanan is a Treasury Department enforcement agent assigned to the Federal Bureau of Narcotics. Segura is a Ventura County, California, deputy sheriff.

Appellant seeks to set aside the conviction on this count on the ground that there was no substantial evidence that he sold or facilitated the sale of the heroin referred to in this count of the indictment.

Accepting as true the evidence submitted by the Government, the following facts appear: Licuanan, using the name Salvador, was introduced to Saldana on April 28, 1958, by a confidential informant. The agent represented that he was interested in buying heroin. Saldana indicated that the price would be two hundred dollars an ounce. Transactions thereafter occurred between the two on that…

274 F.2d 352 Leonard SALDANA, Appellant, v. UNITED STATES of America, Appellee. No. 16233. United States Court of Appeals Ninth Circuit. December 7, 1959. Rehearing Denied February 18, 1960. Stephen Reinhardt, Herbert A. Bernhard, Los Angeles, Cal., for appellant. Laughlin E. Waters, U. S. Atty., Bruce A. Bevan, Jr., Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee. Before CHAMBERS, BARNES and HAMLEY, Circuit Judges. CHAMBERS, Circuit Judge. 1 The judgment of conviction is affirmed. We hold that the second judge of the United States District Court for the Southern District of California was legally justified sua sponte under the circumstances of this case in ordering the plea of guilty on the first and second counts withdrawn (which plea had been entered before another judge of the same court) and directing the entry of a plea of not guilty. 1 Further, we are convinced that the trial, after this change of plea, did not constitute double jeopardy 2 for the defendant. 3 2 The fifth count, the subject of a ten year sentence for Saldana, only charged "sale and facilitation of sale." Obviously, under the testimony, Saldana was guilty of the crimes of possession…