Juan Nepomuceno Olais-Castro v. United States
416 F.2d 1155
9th Cir.
1969
Check Treatment

*2 eligible proba- (argued), ant would have for Joseph been Asst. U. A. Milchen Atty., parole. Miller, Jr., tion and Atty., U. S. Edwin L. S. Diego, Cal., appellee. San The evidence relies which defendant HUFSTEDLER, entitling and Before HAMLEY him to a lesser-included HALL, Judges, mainly District Circuit instruction consists his Judge.* explanation of own testimonial how he defendant, got According into trouble. Judge: HAMLEY, Circuit young he is a worker from the ranch Mexico, regions Sinaloa, appeals Nepomuceno mountainous Olais-Castro Juan years charge schooling. im- and has had seven from his on conviction bringing porting of He ounces intended enter the United States Hall, lesser-included offense would M. *The Honorable Peirson However, appears Judge for the Central be described. States District pretrial sitting designa- California, at a the matter discussed District of judge held before the trial conference and that all concerned understood the tion. sought requested an instruction of in The written form of incomplete stated it contained the kind above. struction was spaces it was intended some blank where 31(c), buy pair Under Rule when some September on the elements the crime them trousers. crime, de constitute a lesser selves chance, quite way, on his While it, fendant, justifies if the evidence Luis, Tijuana, friend, Mexico. met a entitled to an instruction an errand to run wanted defendant Luis permit jury *3 guilty a find accused for an unidentified in the United States crime, of the lesser Sansone friend The unidentified of Luis’. friend States, 349, 343, 1004, 380 U.S. 85 S.Ct. package across to take a defendant asked 13 L.Ed.2d 882. package, defendant was the border. told, not of a kind medicine contained To be included in the Defendant in the United sold States. greater offense, the lesser must be such Luis, that there was trust told to great impossible that it is to commit the nothing package. Defendant in the bad having er without first committed the he receive told that further States, Cir., lesser. James v. United 9 thirty he errand when dollars for the 681, 513, 16 Alaska F.2d 238 683. Stated returned. differently, require the offense must some additional element not needed to acquiesced handed Defendant and was greater constitute the offense. Waker v. wrap- quadruply package. It was a small States, Cir., 795, 1 344 F.2d rewrapped ped prophylactic, in a in a Moreover, the lesser offense must be sack, wrapped plastic in black further but, included within on the facts rewrapped napkin plastic tape, in a then completely encompassed by, the with a While secured rubber band. offense. Sansome v. United border, standing in line at the States, 343, 349-350, 380 U.S. unopened package hid his left inside 1004, 13 L.Ed.2d 882.4 if he sock. When defendant was asked principles anything declare, replied With these he in mind had we turn comparison searched, however, negatively. of the He was essential elements offense, package of the 174 section and the was found. indictment, and the essential elements 31(c), Rule Federal Rules of Criminal of a section 545 offense. Procedure, provides may that a defendant The essential elements the section guilty “necessarily be found of an offense charged against 174 crime defendant are: charged.2 included” in the offense There (1) into is a difference between an offense “neces- Mexico, (2) the United States sarily-included,” and a “lesser-included” heroin, drug, offense,3 but the terms are used inter- importing heroin, changeably by It courts: to be seems to 21 U.S.C. 173.5 recognized 31(c) that Rule covers lesser- necessarily- included offenses as well as paragraphs general The first of the included offenses. smuggling statute, 18 U.S.C. § 31(c) provi- 2. Rule categories, larceny carries forward tlie fense such as 1, 1872, 9, sion of the Act regardless of June robbery, 17 of the facts of a Markis, particular Stat. 198. up- United States v. depends case. The latter Cir., pri- particular 866. While the on facts.” mary purpose of the Act was to aid prosecution proof the live when its supporting 4. Additional authorities these up expectation, may the Act Orfield, also are statements collected in Crim- of, appropriate cases, by be Rules, availed Procedure inal under the Federal States, 31.12, pages the defense. v. Stevenson United 139-140. 162 U.S. S.Ct. L.Ed. provides, 5. Title section with ex- 3. As observed 8 Moore’s Federal Prac- ceptions relevant, not here that it is un- (2d ed.), tice import bring any lawful to narcotic 31.03: relationship “The former denotes a the United States. always exists between two of- It follows margin,6 defendant relies. two which define quoted above, principles stated under separate Babb offenses. Cir., 539-540; cannot be described section 545 offense regarded lesser-included or either a Claybourn, S.D.Cal., United States necessarily-included offense, relies F.Supp. 448, Defendant charged. having section part first clandestine do with the sponte, considered, have sua We also into the United States introduction whether the offense described in have been which should 545 could of section of- of an elements The essential voiced. respect to offense a lesser-included with part the first fense charged. the crime (1) de- paragraph of 545 are: of elements of an The essential *4 (2) willfully, (3) knowingly, fendant only portion of under fense the relevant States, defraud with intent to the United paragraph of section 545 are: the second clandestinely smuggled (4) introduced or fraudulently knowingly, (1) or States, (5) any merchan- the into United brought (2) imported United or into the dise, in- should have been which States, (3) any merchandise, (4) con voiced. trary element, to fourth how The law. “any Assuming, deciding, that not but ever, complete in is not It is itself. drug,” is in that term used narcotic as necessary when to look elsewhere to see “merchandise,” as that is also section importation bringing or in of merchan 545,7 it is never term is used in section 8 “contrary dise is law.” to of apparent 174 that the section theless Confining must, ourselves, to the as committed without we fense be case, ap- committing it would offense. of such a section 545 circumstances pear this only circum- there are In order indictment, convict defendant the to necessary de- for the stances could have it not which rendered was importation prove act fendant’s to that defendant merchandise Government (assuming drugs “willfully” distinguished (as merchan- ed narcotic to be dise) “contrary “knowingly”), or that “with to law” under the second acted he States,” to the or intent United of section 545. of these defraud One drug have been that the narcotic “should that defendant failed to unload and is invoiced,” brought being of these essential all declare the merchandise when he elements of the section 545 offense it across the See 19 U.S.C. border. § willfully, knowingly package with 6. “Whoever he did realize the contained States, drug. statutory intent the defini to defraud United narcotic The clandestinely smuggles, introduces or in 19 1401 tion of “merchandise” U.S.C. any (c) “goods, wares, merchandise which the United States and chattels is invoiced, every description, makes out or mer should have been includes attempts through pass, importation passes, or or to chandise the is any false, forged, States, prohibited.” or the customhouse In Steiner v. United invoice, Cir., 745, 747, pointed or other document was fraudulent 9 229 F.2d paper; or or out definition merchandise fraudulently knowingly ap 1401(c) probably or in 19 “Whoever §. U.S.C. brings States, imports plicable general smuggling into the stat or United to the contrary law, ute, any re- or to 18 merchandise U.S.C. any buys, ceives, conceals, sells, or “contrary to law” means con- 8. The term transportation, manner facilitates trary any existing law. Callahan to concealment, sale such States, U.S. United importation, to same after In for an 76 L.Ed. 914. order into the have been part charging violation this dictment contrary law— sufficient, must be of section 545 to t) sjs % sfc allege action the defendant’s which law thought he to. Current 7. Defendant testified that was “merchandise,” States, Cir., (1964); another, crime are Olar identical with those of Cir., neither can be a lesser-included offense. A lesser offense must included necessary, however, It but, on the facts of the not be com- prove for the that defend Government pletely encompassed by greater of- ant failed unload and declare fense. in order narcotic at border charge. foregoing him convict of the section 174 reasons lead us to Therefore, hold, reaching a violation section 545 question without drug,” based on failure unload and declare whether “a narcotic used not a lesser offense within the “merchandise,” section section used charged, proof because that defendant was not prove entitled to a lesser-included offense in lesser.9 struction. present

The other circumstance Affirmed. this case which could have rendered HALL, Judge (dissenting): District importation “contrary to law” under the The heroin involved was “merchan- of section 545 is provisions dise” in view of the of 19 assuming drug merchandise, 1401(e) which reads: importation prohibited its *5 “The U.S.C. If word ‘merchandise’ this the means is unlawfulness goods, wares, every relied and to establish the chattels of a violation of description, paragraph 545, of section then the includes merchandise importation prohib- essential elements thereof the would be which is identical with ited.” the essential elements charged the 174 offense. The Ninth Circuit in United States section, Under either the Government Sischo, 1921, 958, at 270 F. in a civil required prove that: opium, importation held that the into the prohibited, which was then was not Mexico, (2) heroin, “merchandise,” Supreme Court, the but drug, a narcotic that he 1922, 165, 511, at 262 U.S. importing heroin,10 (4) contrary to L.Ed. reversed and held that narcotic 21 U.S.C. opium “merchandise,” although opinion, opium As stated earlier specifically in this how- dealt with in the ever, if the Opium essential elements one Act of 1918 which was the Moreover, given defendant was no warn- dictment the defendant not sub- ing by ject the for indictment the section 174 to conviction for other offenses be- unloading crime that the issue proof. in con- of the cause nature of the What charged formance with controlling 1461 could is the offense Therefore, be crucial at indictment, the trial. a vio- the the offense estab- lation of proof, section 545 based on failure the lished trial whether it prosecutor unload and declare is not a lesser offense who seek- ing clxax-ged the section 174 crime since extension from the offense ‘necessarily indictment to another offense as ” warning contain sufficient as to the ele- cluded.’ ments of the lesser. Defendant cannot at- tempt right to waive his to notice in order 10. Where the circumstance which makes importation “contrary to use the lesser-included offense doctrine. narcotics Kelly U.S.App.D.C. law” under the second of sec- 229. As the court said tion is the fact it is importation prohibit- that case: of which is “ * * * right ed, importer not, [defendant’s] to invoke to use the lan- guage [the doctrine] lesser-included offense of the second of section beyond right 545, “fraudulently knowingly” import does not extend of the prosecutor. right prosecutor the merchandise to law unless is limited to the offense of which de- he knew the merchandise was a narcotic given drug. fendant has been notice the in- predecessor U.S.C. § of Title present indictment was

under brought, unlawful makes it

and which

import opium the United States. conspiracy me that a Thus seems by the of Title to violate Sec. 174

importation includes heroin conspiracy 18 U.S.C. § to violate general conspiracy concern- statutes

ing smuggling.

I dissent. HANLEY, Appellant,

Thomas Edward America,

UNITED STATES

Appellee.

No. 23467. Appeals

United States Court of

Fifth Circuit.

Sept. 29, 1969.

Rehearing Denied Oct.