United States v. Odell Marshall

The case presently before us is comparable in several respects, to that of United States v. Marshall, No. 74-2070, 526 F.2d 1349 (9th Cir. 1975), amended by order (2/10/76), although in other aspects it differs. In No. 74-2070, the appellant Odell Marshall was found guilty, as his former associates and co-defendants Harris, Strick land, and Macias, had previously been, of, among other offenses, conspiracy to possess and distribute heroin. Co-defendant Tumi-nello was previously acquitted of that charge in the District Court.

In this case, the defendants Odell Marshall and James Arthur Maxwell were found guilty of a lesser offense ( 21 U.S.C. § 844 (a)) included in one count of an original five count indictment, charging simple possession of a controlled substance, to wit, cocaine, after a jury was unable to agree on the greater offense originally charged— “knowingly and intentionally possessing] with intent to distribute approximately 1,350 grams of cocaine” in violation of 21 U.S.C. § 841 (a)(1) [Count Five — C.T. p. 348],

We affirmed the conviction of co-defendant Maxwell, No. 74-3321 (unpublished), decided June 25, 1975. His sole ground of appeal was based on the…