United States v. Edgardo Boke

Boke appeals from his conviction for heroin offenses, 21 U.S.C. § 174 , 26 U.S.C. § 4705 (a). We reject each of his contentions on appeal upon the following grounds: (1) We have examined the record and decided that the evidence was ample to sustain his conviction; (2) there was no error in refusing to instruct the jury that smuggling merchandise, 18 U.S.C. § 545 , is a lesser offense included within the offense charged (Palmero v. United States (1st Cir. 1940) 112 F.2d 922 ); (3) there was no error in refusing to permit Boke to plead to a lesser offense when the Government refused to consent (United States v. Gray (9th Cir. 1971) 438 F.2d 1160 ; and (4) the record does not support the claim that Boke was prejudiced by prosecu-torial misconduct.

The judgment is affirmed.