United States of America, Plaintiff-Appellee, v. Edgardo Boke, Defendant-Appellant., 449 F.2d 339 (9th Cir. 1971)

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T. Roger Duncan, Hollywood, Cal., for appellant.

Robert L. Meyer, U. S. Atty., David R. Nissen, Chief, Crim. Div., Andrew R. Willing, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before ELY, HUFSTEDLER, and WRIGHT, Circuit Judges.

PER CURIAM:

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 prosecutorial misconduct.

The judgment is affirmed.

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