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KELLY v. UNITED STATES

No. 19514.

370 F.2d 227 (1966)

Carl S. KELLY, Appellant, v. UNITED STATES of America, Appellee.

United States Court of Appeals District of Columbia Circuit.

Decided November 7, 1966.

Petition for Rehearing Denied January 13, 1967.

Attorney(s) appearing for the Case

Mr. Gerald F. Uelmen (appointed by this court), for appellant. Mr. William W. Greenhalgh, Washington, D. C. (appointed by this court), also entered an appearance for appellant.

Mr. Dean W. Determan, Asst. U. S. Atty., at the time of argument, with whom Messrs. David G. Bress, U. S. Atty., Frank Q. Nebeker and Victor W. Caputy, Asst. U. S. Attys., were on the brief, for appellee.

Before EDGERTON, Senior Circuit Judge, and TAMM and LEVENTHAL, Circuit Judges.

Petition for Rehearing En Banc Denied January 13, 1967.

LEVENTHAL, Circuit Judge:

This is an appeal from a conviction for violation of 21 U.S.C. § 174 (facilitating the concealment or sale of narcotics). One of appellant's points merits comment. Appellant contends that D.C.Code, § 33-402 (unlawful possession of narcotics) was a "lesser included offense" and that it was reversible error for the trial judge to refuse to put to the jury an alternative...

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