United States v. Terry Nystrom

Appellant, with two co-defendants, was found guilty after a jury trial of both counts of an indictment charging violation of Title 21, U.S.C. Sec. 174 . Count One charged that defendants “unlawfully received, concealed and facilitated the concealment and transportation” of heroin. Count Two charged that defendants “unlawfully sold and facilitated the sale" of heroin. Appellant was sentenced to concurrent terms of five years on each count. At trial an attorney other than counsel on appeal was retained and jointly represented appellant and one of his co-defendants. The trial was short and the Government’s evidence as to the guilt of all defendants tried was substantial. The defendants presented no evidence and none of them testified.

The questions raised on appeal are as follows:

1. Does the right to assistance of counsel guaranteed by the Sixth Amendment require the trial court to advise a defendant with jointly retained counsel that he has a right to separate counsel and to inquire into the possibility of conflict between jointly represented defendants ?

2. Did the trial court err in its instruction to the jury on what constitutes a “sale” of a narcotic drug within the meaning…