*1 JERTBERG, Before CHAMBERS BOWEN, Judges, District Circuit Judge. Judge.
BOWEN, District Appellant Renteria-Medina Pascual appellant) (hereinafter Renteria called jury’s and the appeals conviction from the five-year sen- judgment and Trial Court’s 3 of Counts 2 him on each of tence of charging ap- indictment three-Count (herein pellant re- and his co-defendant smug- Felix) 2 with as Count ferred gling country, 3 and in Count into this concealing receiving, knowingly facilitating transportation and con- of, approximately one ounce cealment heroin, 21 U.S.C. § in violation of Title 174, of the two with concurrent execution indict- Count of the same sentences. aiding charging appellant with ment abetting his Felix in obtain- co-defendant entry into the the latter’s unlawful United States was dismissed. jurisdiction under Trial The Court under Title 18 U.S.C. § § jurisdiction under This 3231. Court has 1294. Title 28 U.S.C. §§ assigns Appellant appeal this two alleged (1) errors: the evidence *2 854 Tijuana, Mexicali, obtained
used
convict the
drive from
Mexico
seizure,
and
Angeles,
they
search and
to do.
unreasonable
Los
undertook
(2)
they
court
the
that
the
misled
further
testified that
crossed
Felix
line;
comment
failed to
and
that while
the Mexican-California
possession.
ciga-
gave
on
that
Felix
it contained
rette box
stated that
and
authority
Immigration inspectors have
they
a
heroin;
observed
that later when
interrogate,
a
without warrant
them,
patrol
trailing
re-
car
pursuance
in-
or arrest aliens in
of the
in
put
quested
the
duty
spectors’
prevent un-
to detect and
did;
pocket
which Felix
immigration of
lawful
aliens. 8 U.S.C.A.
they
they made
left Mexico
from
time
the
1357(a)
(c).
and
§
one,
stops
drove con-
met no
but
tinuously
Appellant
detained
on northward until
at
the time of the trial
immigration inspectors
check
national,
at a
a
the
Mexican
then
for about
fully
point,
explained.
years
Vista,
four
now to be more
a resident of Chula
Cali-
fornia,
Tijuana,
about five miles from
checking
roving
immigration
anAs
country
Mexico. He had resided in this
immigration
inspectors
unit,
patrol
Farn-
years during
18
which time he said he
January
Sweeney
23d
an
said
on
employed principally
had been
as a truck
duty as
official
were in the course of their
driver,
employer’s
but due to his
recent
working
inspectors
an im-
at or near
such
economy measures,
driving
his truck
em- migration
Highway
in
point
check
on
ployment was terminated and then he
from
northward
California about 45 miles
up
collecting
took
the
of
business
At that
the Mexican border at Mexicali.
selling
During
wooden boxes.
his Chula
normally
point
maintained
check
there is
residence,
daily
Vista
he had almost
vis-
a
cars are
road block
northbound
where
Tijuana,
ited
Mexico where about as
immigration
inspected by
in-
halted and
often he saw and
co-
associated with his
day’s high
spectors, but,
because
defendant Felix. After
a few
inspectors’
that there-
wind and the
fear
business,
months in that box
he
structures
the movable roadblock
took a vacation and went to Central Mexi-
blown across the road
co.
hazard,
inspectors
a
Farnan and
traffic
Sweeney
block
did not on that occasion
January 23,
returning
On
1964, while
highway.
Instead,
facili-
the
in order to
vacation, appellant hap-
his Mexican
day,
inspection
tate their
work on that
pened
Miguel
Bridge
to meet on
Aleman
they in
about
their official vehicle moved
Mexicali,
in
Mexico his friend Felix who
highway
temporarily
at
times
joined appellant
appellant’s car,
in
parked
pass-
their
vehicle so as
observe
they
appellant’s
drove to the
home
ing vehicles.
family
they
cousins’
in Mexicali where
had breakfast
and visited.
ac-
About noontime on
stated
the above
cepted appellant’s
invitation
return
date,
a north-
observed
Tijuana
appellant,
they,
ap-
place
in
passing
bound car
where the
pellant’s
began
car,
trip stopping
at
parked.
were
Two men
gasoline filling
a
Mexicali,
station in
car, clothing
hanging
Mex-
ico. Felix at
trial
testified for the
back section
government
got
and stated that
pattern
when he
car
testified the
“fitted
appellant’s
they
car and
later when
de-
that we watch for”. The
stopped
filling
at
station,
question
occupants
he saw on
cided to
re-
the car’s
appellant’s
cigarette package
car
seat
specting
citizenship,
their
and in order
box.
they
He said that
they
after
left
to do so
drove their official vehicle
filling station, appellant suggested that,
using
car
after
the official
ve-
because
working
car
stop
was not
hicle’s
flash caused that northbound
very well,
they,
going
instead of
pull
stop
car to
over and
the roadside.
powdery
opened
it
sub-
persons
Thereupon,
in that
and found
both
Felix if he
asked
stepped
it,
stance. Farnan then
of walked back
car
out
vehicle,
sub-
inspectors’
met
an
if that
addict and
towards
by
inspectors,
heroin, and
answered
frankly
stance was
“yes”
*3
talked with the
and
appel-
questions. Farnan esti-
to both
was
and disclosed that one
them
four minutes
mated that
three to
the driver
lant who was
elapsed
entered
time Felix
between the
other was Felix who was
car
that the
and
inspectors’
of his
and the time
passenger
vehicle
a
in it.
discovering the heroin.
inspector
Farnan see folder
let
Felix
stepped
including
containing
things
Thereupon,
Fe-
and Felix
Farnan
several
inspectors’
border-crossing
and a search
The out of the
vehicle
card.
lix’s 1-186
talking
in
further disclosed
was made which
wind conditions
with
interfered
ciga-
outside,
pocket-the
in
above mentioned
so
to sit
Felix’s
Farnan invited Felix
contraceptive
containing
inspectors’ patrol
with
was
box
the
being
car. As Felix
rette
her-
questioned
inspector
later identified as
Farn-
contents
there
examining
appellant also,
oin. A
was made of
an and while the latter
search
was
per-
folder,
on his
Farnan
but
narcotics were found
the contents of Felix’s
Sweeney
appellant
inspector
then
had
Felix and
learned from
who
son. Both
by
lug-
formally
talking
appellant
taken into
been
that
belonging
stop-
gage
custody,
to Felix
in
which as well as the
was
ped
war-
car.
of the heroin was without a
This led Farnan to believe that
seizure
might
planning
im-
rant.
be
to
his
Felix
migration
violate
by overstaying
status
in
appellant and
con-
Felix were
While
as
United States
time
to
allowed
him
jail following
El
their
fined in the Centro
border-crossing card,
a holder of an 1-186
arrest, appellant wrote several incrimi-
might
and also to
that Felix
believe
nating
urging
tell
to
him to
*4
Felix,
porting
possessor
heroin
signment
the
of the
con
that the
used to
evidence1
by
it
from him the
before was received
by
vict him was obtained
unreasonable
inspectors,
ma-
all
and had been at
seizure,
were
emphasize
search and
the
we
terial times before the heroin left Felix’s
ar
before
was
making
possession
common cause
intercepted
appel
rested
the car in which
smuggling
coun-
the contraband into this
lant and Felix were
on
furthering
try from
its
thoroughfare
Mexico and
leading from
Mexican
the
destination,
when
movement to
and that
through
Imperial
border northward
Valley
the
intercepted
car was
the
Angeles
the
when
area,
to the Los
which was
narcotics were
from Felix before
widely
received
large
known for its
number
appellant’s
was,
Felix, an
arrest he
Mexican
nar
residents
extensive
partner knowingly participating
active
stop
cotics trade. The
ping
before
committing
smuggling
with Felix in
the
the car observed that
in it
those
and,
smuggling trip,
crime
same
Mexicans,
the
were
before
pursuing
uncompleted
further
related
the
arrested the
knew that he was
plan
putting
the heroin into the Los
the driver of the
that Felix was
Angeles
passenger
narcotics
it,
trade. Grier v. United
that Felix had shown his
States, Cir.,
(de-
border-crossing
“unless he thereto before verdict, retires to consider its stating distinctly matter grounds objects and the objection”.
his Appellant has failed to sustain his sec- BEEGAN, Appellant, John assignment ond of error. v. The action of Trial Court is af- COM- BRADY-HAMILTON STEVEDORE firmed. PANY, Com- Fireman’s Fund Insurance Deputy pany O’Leary, Com- J. N. District, missioner, Compensation 14th Judge JERTBERG, (concur- Circuit Appellees. ring). No. 19871.
I concur in in the the result reached Appeals majority opinion. United States Court Circuit. Ninth 1357, U.S.C., provides in Section Title 8 16, June 1965. pertinent any part officer or em- Immigration ployee of has the Service Rehearing Aug. Denied 1965. power, without warrant— “(1) interrogate any alien or alien as to believed be an right or to remain in the ** States; *; United notes Felix planning employment to seek while in the nothing appellant the authorities had that United States. charges that to do with the and “tell them nothing nothing”, Pursuing belief, that I do not know about Farnan continued urging Felix, question him make other state- after time false a short surprised frankly appellant. ments he Farnan favorable to stating overstay intended to the time he considering us, It clear seems pass. him border allowed his 1-186 inspec inspector Farnan’s fruits of Thereupon, Farnan told he en- Felix papers includ of Felix’s effects and tion intending tered violate his status note heroin taken from that the have to return “yes” Farn answers to and Felix’s book they talked, him to Mexico. As Farnan ad questions was an an’s whether holding noticed that Felix was in powdery substance dict and whether the upon hand a small notebook which Farn- hero was from Felix’s notebook received in, hesitatingly request an’s gave to see it Felix ample probable cause Farnan had that looking to Farnan who was for other being com a crime was then believe documents, possibly such as a social secu- thereupon Farnan Felix, mitted that rity something, card or to show whether reasonably justified ar and acted country working Felix had been in this searching resting him Felix and returning job and was then to his here. seizing from his notebook, contents, the arrest As Felix over with its heroin that handed that arrest, trembling, Farnan noticed that he of Felix a lawful through and as were incident note- such search and seizure looked book conclude that once lawful arrest. We he observed that Felix was by inspector go- hysteria”, upon “near to obtained Farnan’s such evidence so ing through time, used Farnan from which was the notebook a second law package he in fact or saw in it a convict was not small any person unreasonable search and sei- obtained experience, pru- of reasonable contrary zure, on the evi- such caution, appellant and dence and dence so obtained obtain- Felix, together reasonably, upon probable collaborating smuggling ed appel- for country believe that Mexico into this heroin from committing crime, lant ap- was then Angeles officers the Los area. Those upon all the related then evidence before plying ordinarily prudent cautious against the Court was admitted at hand consideration to the situation reasonably at the trial as further indicated believed, they probably as below. have, by possessing the could that Felix trans- in his car heroin and Respecting appellant’s first error as