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2d 724
Donald Edward Gilbert, New York City, on the brief for appellant.
Robert M. Morgenthau, U. S. Atty., Southern District of New York, R.
Harcourt Dodds, and Neal J. Hurwitz, Asst. U. S. Attys., on the brief for
appellee.
Before LUMBARD, Chief Judge, and HAYS and ANDERSON, Circuit
Judges.
PER CURIAM:
Warren Dora Miller appeals from his conviction on four counts of violation of
the federal narcotics law, 21 U.S.C. 173, 174, 26 U.S.C. 4705(a),
7237(b), and five year concurrent sentences imposed on October 26, 1964, after
a trial in the United States District Court for the Southern District of New York,
before Judge Bryan, without a jury. Miller argues that the verdict was against
the weight of the evidence and that a confession was improperly introduced
against him.
As to the first claim, the record discloses that each of the two narcotics
transactions alleged in the indictment were sales to narcotics agent Coursey,
who testified in full to the defendant's participation in the transactions. His
testimony was in part corroborated by the testimony of two other agents.
Miller's defense was based solely on his own testimony denying that he had
taken part in the sales. The trial court had ample basis for resolving the
Miller also argues in his brief on appeal that the statement should have been
excluded because it was taken in the absence of counsel and during a period of
illegal detention, in violation of Rule 5(a), Federal Rules of Criminal
Procedure. These objections were not made to the trial court and we will not
consider them here. Miller's trial having occurred in October 1964, after the
Supreme Court's decision in Escobedo v. State of Ill., 378 U.S. 478, 84 S.Ct.
1758, 12 L. Ed.2d 977 the failure to object has deprived the trial court of the
opportunity to take evidence and pass upon the objections, and precludes our
entertaining these claims made for the first time on this appeal. United States v.
Indiviglio, 352 F.2d 276 (2 Cir. 1965) (right to counsel); United States v.
Torres, 343 F. 2d 750, 752 (2 Cir. 1965) (Rule 5(a)); United States v. Ladson,
294 F.2d 535, 538-540 (2 Cir. 1960), cert. denied, 369 U.S. 824, 82 S.Ct. 840, 7
L.Ed.2d 789 (1962) (Rule 5(a)).
Affirmed.