*1 Equipment Com prejudice. Fisher (Ky.Ct. West, pany 365 S.W.2d v. America, UNITED STATES of Company Brown v. App.1962); Allender Plaintiff-Appellee, Ky. Adm’x, ing’s 46 S.W.2d v. Kentucky Co. (1932); Coal West Craig April Covey, WARNER, Samuel L. Factually, Adm’r, supra. Shoulders’ Jr., Kranzthor, W. earning upon decedent’s dwell cases Edwards, E. Frank Daniels and Michael expectancy, in no capacity life Jacobson, Defendants-Appellants. A. fell with sum awarded case which No. 29505. lifetime reasonable decedent’s earnings ex held to be the verdict was Appeals, Court Equipment g., Com Fisher E. cessive. Fifth Circuit. Carter, McCoy West, supra; pany April 8, 1971. (Ky.Ct.App.1959); S.W.2d Rehearing Rehearing Denied and En Banc Sarrington’s Adm’r, Temperly May 10, Denied Allender (Ky.Ct.App.1956); S.W.2d 863 supra. Browning’s Adm’x, Company v. contention
Defendants’ $100,000 the result verdict was interjected
passion prejudice things, among by, proceedings plaintiff’s claim for unsuccessful suffering damages pain under
gone prior by to his death her decedent required examination a detailed shocking his circumstances appeal. superficial The coun
death has
tervailing are, however, factors competent
there was evidence submitted that, despite which showed average earnings year low for the ten
his
period prior death, to his the decedent $4,000 $4,500
1966 earned over and over Stressing again
in 1962. under determining
Kentucky jury, law the
the loss to the decedent’s estate rea earning
son the destruction his
power, not limited to a consideration average
of the decedent’s annual earn
ings highest yearly nor earnings, his $100,000 be noted that a verdict
is well within the limits of the decedent’s potential earnings. lifetime
Accordingly, unlikely it is Ken tucky appellate courts would have order grounds
ed a new trial on the of an ex verdict, cessive and it is clear that
District Court’s denial of a new trial ground
on that did not constitute an
abuse of discretion. of the District Court
affirmed. *3 Chagra, Paso, Tex., Lee for de- A. Privette,
fendants-appellants; Mari W. Cruces, M., N. Las of counsel. Seagal Atty., Wheatley, V. U. S. Atty., Wayne Speck San Asst. U. F. S. Antonio, Tex., plaintiff-appellee. WISDOM, THORNBERRY, Before Judges. DYER, Circuit and Judge: WISDOM, Circuit defendants-appellants The L. — Samuel Kranzthor, Daniels, Jr., W. Edwards, Daniels, Michael A. E. Craig April Jacobson, Warner, L. and R. having Covey charged con with — were knowingly spired de intent to and with import fraud the to mari United States contrary to huana into the United States law, 176a.1 violation of U.S.C. § persons Three were also named other III, Semple, the indictment: Richard C. Vasq Young, Michael and Rodolfo G. apprehend- was never uez.2 Smuggling marihuana; § counts of the indictment on 176a. penalties; proceed evidence; charge definition the Government elected to of mari acts: huana Notwithstanding any provision FIRST other COUNT (21 176a) law, whoever, knowingly, § U.S.C. with intent beginning imports or to about March That defraud 2, 1969, continuously brings un and thereafter or into the United States mari- 18, 1969, lаw, smuggles contrary til on about or huana to or or Texas, clandestinely at oth District of and Western introduces into Unit- jurisdiction places er ed States marihuana which have should III, Court, invoiced, receives, conceals, buys, RICHARD C. SEMPLE been or KRANZTHOR, sells, any L. FRED W. or in manner SAMUEL facilitates DANIELS, JR., transportation, concealment, FRIEDA E. ED or sale of DANIELS, WARDS, being imported MI FRANK such knowing JACOBSON, brought in, CHAEL A. MICHAEL G. or the same to YOUNG, brought R. WARNER CRAIG RO been or contrary law, L. VASQUEZ and APRIL CO to DOLFO United States conspired, conspires VEY confederated whoever to do agreed together imprisoned foregoing acts, other and with each not shall Jury twenty Grand with or more than less than five knowingly and, unknown, years addition, may intent with be fined not import $20,000. defraud the United more than fugitive. The other Kranzthor was of the sub- also convicted ed and remains a importing guilty knowingly stantive pleaded offense of not nine defendants jury. con- of all marihuana into the United States At the close stood trial trary granted court sen- law.3 district the district court Young’s acquit- tenced Kranzthor to serve two concur- motion for ten-year peniten- Vasquez rent acquitted terms in a federal tal. tiary. The court Dan- defendants. sentenced Frank convicted the other seven Mexican taxi from Mexico via the Avenida de las Americas Bridge (Cordova mately March JR., Arizona license HSJ-910. Motel Pie de la E. EDWARDS entered Mexico from wagen mately R. WARNER and APRIL L. COVEY the United States in her wagen W. PLE, oacan, Mexico. the United States. and APRIL L. CLY-80. Wagon, Arizona COBSON’S the United States in MICHAEL A. JA- entered Mexico from the CHAEL CHAEL ed the letter 433 MICHAEL A. JACOBSON obtained ing bearing 1969 Arizona License LBH- Rodolfo “Fito” Beauty Shop, and Vehicle Permit No. Mexican Tourist Permit No. 952665 North Mesa from the Bel Air Motor UEL L. its of their *4 ers, huana 7. From March 9. On March 6. 5. 4. Prior to March 3. 2. 1. On or about March Juarez, CRAIG WARNER’s 1959 Volks- DANIELS, objects, they U.S.C. his 1968 bring Prior On Prior to March entered the On III Prior sedan 9:00 15, 1969, Nogales, Sonora, 11:30 Station KRANZTHOR YOUNG said A. or Mexico. into the United States mari and FRED W. R. § to March a. Volkswagen 1968 bearing Street, to March “personal”. 176a, Fabens, a. conspiracy about March m„ JR. entered JACOBSON and MI- Sierra, COVEY m., Wagon bearing 18, 1969, performed, among CRAIG WARNER license LBH-433. Port of Vasquez, RICHARD C. SEM- entered Volkswagen overt law, Sylvia’s 15,1969, FRIEDA 1968 Texas 10, 1969, 15, 1969, Texas, Uruapan, Paso, Texas, 10, 1969, Station in violation of wrote a letter R. Mexico. stayed 2, 1969, acts: 066881 and to effect Entry) Mеxico from Mexico from Lodge, at at DANIELS, furtherance Cab Stand % FRIEDA 5, 1969, approxi- approxi- E. ED- through CRAIG Station FRED license Wagon Volks- at the States Delia’s Mich- mark- cover- SAM- from 1968 1811 oth MI- 3. Bert footnote the United States zona license HSJ-910 ARD tent ER and APRIL L. COVEY iera Motel L. KRANZTHOR mately MICHAEL the Western District ported Juarez, Chihuahua, license 8H-3353. KRANZTHOR SEMPLE, IH in the [*] KRANZTHOR, mately CHAEL FRED W. prior PLE, SON entered the Cafe Airport and drove to his farm south Pickup Truck noon, L. with a KRANZTHOR landed his Tri-Pacer sedan, Fabens, Texas, Airport. approximately WARDS left cord. aircraft, Registry Juarez, Mexico, That on 14. 13. On March 12. On 10. On 11. On March knowingly imported Fabens, Juarez, large [*] KRANZTHOR Pounds to defraud the United Rodolfo C. III, [*] On green Texas license to 4:15 8:55 contrary 4:20 supra. A. (21 loaded SEMPLE, THIRD COUNT March or and MICHAEL A. JACOB Texas, Chihuahua, March was also of Marihuana. JACOBSON, p.m., p. m., G. brought about U.S.C. tarpaulin аbout March Vasquez picked CRAIG R. WARNER’s DANIELS, 12:00 the Las in her 1964 RICHARD YOUNG, bearing 18, 1969, shortly and RICHARD C. 18, 1969, 18, 1969, p. Station in his 1966 Chevrolet No. FRANK knowingly, CRAIG WARN- March 18, 1969, Mexico. up m., law § III and charged noon CYL-80, Cafe into the 176a) and secured with Mexico. N1766A, at Monumental Texas, approximately SAMUEL Vegas rack to law. See SAMUEL Wagon, 1968 SAMUEL Monumental 18, 1969, left the Riv- joined at at R. DANIELS, JR., with hav- SAMUEL SAMUEL C. sometime with approxi- approxi- carrying covered RICH- Fabens Motel, at Texas SEM Ari- MI- im- in- L. L. L. at Act, 18 iels under Youth much of the Corrections evidence in this case is cir- remaining seq. cumstantial, et U.S.C. one time some § expressed to serve five defendants sentenced courts in crimi- view six-year penitentiary. terms in a federal nal cases based on circumstantial evi- special required dence a rule the district appeal points of On four Court grant acquittal court for motion (1) appel error All are raised. of the unless circumstantial ex- evidence lants court contend the district every hypothesis cluded judg denying erred in their motions for guilt.4 Supreme Court, than that of acquittal, ment of evidence because the “ however, has said [circum- convic was insufficient to sustain their * * * stantial evidence is intrinsical- (2) conspiracy. tions for ly no different from testimonial evi- denying contends that the court erred in dence” “where acquittal, his motion be properly instructed standards cause the insufficient evidence was doubt, for reasonable an additional such sustain his conviction for the substan instruction on circumstantial evidence (3) appellants tive All offense. confusing and incorrect.” Holland v. contend that admit the court erred in ting 348 U.S. takan them and from 127, 137, 75 S.Ct. 99 L.Ed. argue— vehicles, because — so test, therefore, judging The same *5 their arrests and the searches sufficiency the of the evidence should prob vehicles were without a warrant or apply whether the is direct evidence (4) able appellants’ cause. final pre- Indeed, is the circumstantial. contention is that the under statute vailing today. rule in courts the federal they charged, were 21 U.S.C. § Wright, 176a, See C. 2 Federal Practice & unconstitutional, is it vio because Procedure, 467, To reconcile at § lates 258. privilege Fifth Amendment against some older Fifth cases Circuit with self-incrimination. We conclude Supreme holding in Hol- judgment Court’s cleаr of the district court land, rephrased this the sub- must Court has be affirmed.
stantial evidence cases test: in criminal based on evidence our circumstantial I. task is to determine whether The first two contentions are the minds could conclude that evidence Government’s evidence is insufficient to hypothesis is inconsistent with support the defendants’ convictions for the accused’s United States innocence. conspiracy and Kranzthor’s conviction Andrews, 539, 1970, 5 427 F.2d Cir. for the offense of substantive im- 540; States, Surrett v. United 5 Cir. marijuana. portation of 1970, 403, 421 F.2d 405. Notwithstand- might differences, these which some On a motion of ac verbalistic, agree- term whether, taking we are quittal, test Government, ment our with brothers in other circuits most favorable view jury accept whethеr reasonably-minded evidence could be direct or circumstantial, adequate the matter of the as defend- the relevant guilt ant’s jury is for the to decide un- support the conclusion of sufficient to less the court guilt beyond concludes that reason the defendant’s necessarily States, have had a reasonable able doubt. Sanders Wright, doubt. 2 See C. 196; Federal Prac- 194, 1969, Jones F.2d 416 Cir. Procedure, 467, tice 273, & at 259. 1968, § F.2d States, 5 Cir. United States, 5 there Cir. Since were 274; seven defendants in- United Weaver v. dicted and prin- convicted 878, true and since the It is ; Wright, 224-225 C. Cir. Federal Practice See, g., Riggs e. § & Procedure at 257-58. Cuthbert F.2d Cir. light blue Daniels’s presents Frank question cipal case following Both Frieda’s car. bus were the Government’s each one to whether as Res- stopped at the LaCuesta his vehicles to sustain sufficient evidence was later A few minutes each, some- taurant Juarez. conviction, justice the restau- leave saw Frieda lengthy the Govern- what discussion longer car, had it no necessary. rant in her but ment’s case is top. luggage Still carrier At 9:00 on March a. m. carrier, entered her carrying Daniels Mexican taxicab Fe Street the Santa States Semple and Bert entered Bridge p. m. 1:50 in El Paso at Paso, Bridge in El at the Cordova agents attempted Frank to follow appeared men Texas. Because both sight bus, it. soon lost but Customs Daniels’s nervous and United Agents spotted however, it 3:00, At inspectors Daniels had information A inspec- in Juarez. suspected smuggling, at the Maxfim Restaurant the bus observed minutes later few Daniels tors at El Paso detained and drive momentarily the restaurant across them. leave and searched There nothing the Riviera Motel. street search revealed white-over-beige inspectors taxi driv- also asked the Mexican observed Volkswagen bus, to be- er, determined occasionally later as had done occupied Craig long past, report Warner let off to them after he Covey. April reported to Warner two men. The driver inspectors Daniels, Fred At 4:45 Span- one of men said to him Young Mo- Riviera left the Michael ish, thought inspectors “I were those next and went tel in Frank Daniel’s bus speaker real smart.” The added that They Monumental. door to the Cafe had been useless the officials them- and seated went inside the cafe bring- search them since not Semple, Bert selves at a table at which *6 anything ing country: back into the Kranzthor, Michael Jacobson Sam and had, left in The “What we we Mexico.” agents already sitting. the sat As were might men told the driver that someone they cafe, a noticed outside the gave tip them and him truck, li- Texas pickup white Chevrolet only on a four four dollars cost ride 8H-3353, parked the in cense number say “not I had left dollars where parking walked Daniels lot. Soon Frank relayed inspectors them.” The then cafe, white inside the out of the looked Agent Special to the information away. pickup truck and then walked area, charge of Customs the El Paso April Craig Cov- nor Nеither Warner Special in turn who alerted the ey actually Monumen- the Cafe attended Agents. Volkswagen meeting. bus tal But their Moreover, adjacent hour after About an Fred Daniels and was at the hotel. “Step- dog, Covey’s Shepherd Semple entered the United the German agents penwolf,” alerted was at the observed Frank cafe. brother, person Fred’s and another driv- Steppenwolf came In a short while toward in Frank’s south Mexico trotting agents. they up were As to the light Volkswagen blue At 10:30 bus. feeding dog, out came the Jacobson agents Juarez, Mexico, dispatched saw dog restaurant, “be- the the said Edwards, and sister of Fred mine,” longs him took friend and Daniels, accompanied by pas- inside the cafe. senger, driving her dark blue Vоlks- six all minutes wagen large Within a few more car- sedan with cars, Again, as left the top. leaving men cafe. rier on She the Las was Young and paired Vegas ap- off. Jacobson Motel in The carrier Juarez. dog Riviera to the back walked with peared to be loaded and was covered got in the green and Motel. tarpaulin. with a men Two event, agents pickup followed the truck and white Chevrolet got in Warner and Jacobson buses back Fred Frank Daniels off. and Volkswagen light and Riviera Motel There bus Juarez. Frank’s blue agents occupants watched the of the Motel. two drove back to the Riviera things buses take some out of bus- dark, getting 6:00, just At as it was es, straighten inside, then out the agents Frank Daniels’s bus observed re-load the At 8:50 the Wаr- vehicles. it the motel. Close behind was leave ner and Jacobson left the Riviera buses white-over-beige Volkswagen Warner’s agents attempted to follow Motel. The bus and Jacobson’s white-over-dark-blue them, it lost the Warner bus when Volkswagen fact bus. Other than the made a in the middle of traffic. U-turn bus, persons in each there were two They were able to follow Jacobson agents identify occu- could not where, bridge, bus to the Cordova pants. argues, how- The Government inspection, the United a brief it entered ever, is reasonable to infer point At that could States. occupants the two of each bus were occupants in the were see that bus in them who had been seen same bridge, crossing Upon two men. day up in еarlier and who turned Papagayo Mo- Jacobson bus drove to night; words, them later in other just tel outside El Paso. There bus Frank Daniels in Frank’s parking stopped drove into the lot and bus, April Covey in War- and Warner telephone public next booth. to, Young bus, ner’s and Jacobson bus, Warner eluded Jacobson’s bus. already Juarez, parked at The buses left Juarez a southeast- spot. maintained same erly They stopped while direction. all until about buses surveillance two got gasoline. They proceeded one during interval 10:25. At no time highway tandem to- down Mexican occupants buses did the the two ward Tres Jacales until encoun- Covey; Young (Warner Jacob- coming tered the to- white vehicles; son) sim- ever leave their opposite ward them in the direction. ply sat there. highway parallels International Boundary agents posted between the Ysleta At 7:30 light Bridge appear Mexico. The truck did not to be blue saw Frank Daniels’s point loaded. At the of their encounter cross over bus truck, village Although with the Mil- at the of El United States. *7 Ion, bus, they the buses made and fol- the U-turns could the of not see driver up lowed passenger the truck an area Fred Dan- road into as identified the parked agents sand hills. the The four bus to vehicles followed the iels. Other (so girl on a hill above the level of the road friend Frank Daniels’s home of twenty record). about the appears minutes. The There Government it from the argues during agents it parked was rendez- front in observed the bus standing vous the transfеrred defendants Daniels of the house and Frank agents from the By buses to the truck mari- porch. the time the the on the gone. huana later in block, found the truck the on was the the bus had circled heading however, American side it, of the They border. soon saw house Daniels’s Frank northwest toward finally When the vehicles came back agents ar- El When the outside Paso. hill, pickup down the the white truck house, they found at the Daniels rived went southeast and the three buses parked in drive- Frank bus the Daniels’s northwest, back toward Juarez. Because standing way. next Kranzthor was Sam agents it was dark and the were some starting get in. apparently to bus, vehicles, distance from the could the in the house the road front of not tell whether the truck was then load- ed. pickup parked. white truck was bag plastic the seat was clear and on the three bus rendezvous After the agents containing The the marihuana. pickup in truck the white es and Agent the driver of for the hills, Special searched the area the sand
area of truck found no charge each of one. at posted lookouts The white bridges El Paso area. in the They end the back then looked into Mexico last seen was truck pounds of and discovered truck p. it headed as shortly 7:00 m. burlap eight marihuana contained Highway It Mexican southeast on suitcases, bags duffel and a number American at 8:55 on bags was next seen burlap bags, and footlockers. The going northwest — the side of the border indicating markings bore High Interstate opposite direction — on suit- in Mexico. been manufactured charge Agent way Special sitting in were cases and footlockers did not cross truck that the testified carrier, Frieda Edwards’s bridges of Juar southeast either of ez, burlap top placed had been bags. last it was in which the direction in the packed The marihuana was heading in record in Mexico. The seen dicates, bricks; were form the bricks some of however, Rio Grande bags. en- plastic wrapped in clear area; in easily can forded be syn- by pieces of tire load was secured many line deed, tracks tire automobile green thetic with cord covered Therefore, dry the Gov creek bed. agents tarpaulin. Inside the truck argues, infer it is reаsonable ernment license, a Semple’s found Bert driver’s last truck drove south Vas- letter Rodolfo from Kranzthor to area, bridges El crossed Paso ciga- quez, some Mexican matches and U-turn, river, headed back made a papers, marked rette balance scales El Paso. toward kilograms, and women’s some men’s Following back truck as clothing, belonging and a Bible agents Paso, noticed toward Daniels. heavily appeared loaded. the truck As arrested soon as Kranzthor was objects green tarpaulin covered A containing the truck heaped back of that were charge seized, Agent in- Special Paso, As the truck reached El truck. arrest structed his other identify one of was able suspected there- conspirators. At 10:25 occu- one of the two Sam as maintaining fore the surveillance pants contin- of the truck. The on the Papagayo at the Motel moved ued to follow the as it drove occupants and Jacobson of the Warner through El Paso north toward Agent Warner buses. Robinson arrested Daniels’s house. Covey bus. in Warner’s as sat agent Agent agent found to The searched Warner Kessler the first pieces paper on which written at the As noted arrive Daniels house. above, Daniels standing in the former address of he found Kranzthor telephone In- driveway number. brothers and their next Daniels’s to Frank pickup *8 agents found the bus. The parked side the Warner bus white truck was clothing, camping equipment and in the some road in front of the house. Agent dog they fed ear- placed Steppenwolf, had As the Kessler Kranzthor un- arrest, lier, ac- sweepings, for der a bill someone from marihuana fired a shot persons vicinity from of the commodations for two truck. Just as agents scene, motel a arrived to March 15 at on the March 13 repair up away Mexico, sped Uruapan, truck work backed a and from the bill Uruapan on Four at house. more fired. done on Warner’s bus shots were agents repairs quickly The at for car a March another bill found the truck Zacatecas, Mexico, en- road; an short March distance on down the it had be- sand, velope come in care of mired in the addressed to Warner and the driver resi- former open abandoned at Frank’s Frank Daniels it. The door was agents Paso, receipt and a indicat- ernment dence ing testified that marihua- Guadalajara grows prolific March na quantities exchanged pe- Covey Uruapan. area for Mexican around In March $510 price sos. of about marihuana there was pound; ten price dollars a Agent Morgan Young Ja- arrested at the same time was they In cobson as sat in Jacobson’s bus. ninety about or one a hundred dollars agents cards Jacobson’s wallet the found pound. On the of this evidence basis argues telephone on which were written the Government above numbers of Daniels and Frieda Frank appellants Uruapan, pur- named to Edwards. Inside Jacobson’s bus marihuana, pounds chased the 800 of agents camping equipment found brought Juarez, it back to where clothing, repair tequila, a car Mexican Uruapan, Mexico, evening transferred on the of from March bill dated March pickup 18 to the white truck to be exchange receipt of $800 driven across the border. large Uruapan 10, and dated March investigation Later disclosed the fact bags quantity plastic empty of clear belonged pickup the white to identical to those discovered in the back Vasquez. Vasquez Rodolfo At the trial pickup of the white truck. testified that he lent the truck to Kranz- Following capture of white day thor on the before the here events truck, agents pickup returned to agents described. The also learned house, Daniels’s ob- Frank where Tripacer single-en- Kranzthor owned a Daniels, served Fred and gine airplane and that he had flown girl get Frank’s friend in Frank’s bus airplane places to various Mexico away. and start drive early March. Searches Kranzthor’s quickly halted the bus arrested clothing airplane floor re- thereafter, occupants. Shortly three agents vealed sweepings. marihuana sitting spotted Frieda Edwards argue appellants that the evidence Volkswagen approximately in her sedan recited here in some detail is insuffi- north of house. block Frank Daniels’s they conspired cient to establish that Dan- She was arrested and taken import marihuana into the United States Agent Special iels Therе the house. law committed charge prescribed Mi- administered any overt acts in furtherance the con- warnings persons in randa to the four spiracy. Kranzthor, who was convicted custody. A Daniels’s of the substantive im- offense clothing sweepings. revealed marihuana argues portation, also the Govern- jacket In Frank Daniels’s prove beyond ment failed to a reasonable keys locks found set of that fitted the doubt that the marihuana was fact on the full footlockers imported and that he it. The pickup found in the back of the white gist argument of Kranzthor’s truck. A search of Frieda Edwards’s Government’s unaccount- evidence leaves pieces sedan disclosed some forty-five ed for an hour and minutes of cord identical those used secure between the time in Mexico last the marihuana in the back the white pickup saw the time white truck and the truck. car Edwards’s agents in the United first ob- repair from found car also bill evening served the truck on the Uruapan, Mexico, dated March 15. during period that time un- bill was Frece issued to a “Sr. Daniels.” known could have loaded bills, repair together, Taken car marihuana on the truck in the United *9 exchange money receipts Moreover, bill, only motel and States. evidence in- Jacobson, Covey, Warner, dicating imported indicate that Kranzthor Uruapan, and Fred in Daniels were all marihuana is that he was once seen rid- Mexico, in trial Gov- on March 15. At the loaded truck on the American 830 States, 1962, bordеr, as matter of Hernandez United 9
side
a
v.
Cir.
114,
in-
presence in the
is
300 F.2d
mere
law his
sufficient evidence.
mind,
principles
With these
in
present
we hold
from
the evidence
II.
reasonably-minded jury
ed a
could con
appel
We deal first with the
beyond
clude
reasonable doubt that
essen
lants’ common contentions. The
defendants
entered
common
tial
of con
elements of
federal crime
import
scheme to
marihuana
into the
agree
371,
spiracy, 18
are an
U.S.C. §
United
law
States
by
or
to combine
ment
two more
proved
the overt
in
acts
were
further
illegal purpose
an
efforts
for an
ance of that scheme.
in furtherance of
overt act
one
response
to Kranzthor’s indi
agreement.
Falcone,
United States v.
contentions,
vidual
the Government
1940,
210,
204,
205,
85
61
311 U.S.
S.Ct.
argues that
the evidence is sufficient
128, 132;
L.Ed.
Roberts v. United
beyond
allow the
to conclude
a rea
1220;
States,
1969,
1216,
F.2d
5 Cir.
416
sonable
doubt
the marihuana was
1969,
States,
Nelson v. United
5 Cir.
fact
im
483, 485;
v.
F.2d
415
Kirschbaum
ported
First,
showed
it.
the evidence
1969,
States,
F.2d
407
United
8 Cir.
early
at least War
1969
562,
conspiracy by its
Since
ner, Covey, Jacobson,
Daniels
very
is
nature
clothed
born
Uruapan, Mexico,
mari
where
secrecy,
of
element of the
first
grow abundantly.
huana is known to
agreement—is
suscepti
seldom
fense —
While still in the
of Mexico
interior
proof.
of direct
Proof of
ble
shortly
returning
before
to the United
agreement
purpose
or common
therefore
States, Covey
exchanged
and Jacobson
upon
from
rest
inferencеs drawn
$1,300
pesos.
over
Inside
Mexican
competent
relevant and
circumstantial
vehicles, however,
the Customs
ordinarily,
and con
acts
evidence —
camping gear
inex
found
and an
conspirators
duct of
themselves.
pensive
which,
bill,
motel
Govern
1969,
Varelli,
407
United
v.
7
States
Cir.
argues,
ment
that the
indicates
travelers
States,
741;
9
735,
F.2d
Miller v. United
Moreover,
only
living frugally.
1967,
583,
Rodriquez
586;
Cir.
382 F.2d
significant
purchase
found
States,
1967,
F.2d
5 Cir.
pounds
vehicles
the 800
of marihua
17, 18;
States, 10 Cir.
Jordan
United
v.
quantity
na.
That
would
128;
126,
1966,
370 F.2d
Dennis
Uruapan, $80,000
$8,000
cost
5,
States,
United
302 F.2d
Cir.
the United States.
agreement
11. Once the existence of the
conspiracy
Second,
is
common scheme of
there was the evidence
shown, however, “slight
luggage
all
Oh
evidence”
Edwards’s
carrier.
Frieda
required
particular
mоrning
to connect
in Mex-
of March 18
conspiracy.
driving
defendant with
her
ico had observed Frieda
Jones,
luggage
F.2d
9 Cir.
car-
with the
sedan
1951;
Knight,
luggage
top;
rier on
carrier was
1181, 1184; Lopez
loaded,
Cir.
then
but with
what
Mexico,
F.2d
Cir.
could not tell. While still
par
luggage
disappeared;
911. And once it is shown that
carrier
conspiracy,
joined
early
ticular defendant
afternoon
crossed the
border
co-conspirators
done
of his
next saw
the acts
it.
night
conspiracy
luggage
at
are
late that
furtherance
carrier
equally
he becomes
to him and
back of the white
truck.
tributable
loaded with
Grimes v.
then
carrier was
them.
liable
pounds
5 Cir.
marihuana.
*10
Third,
concerning
the evidence
To establish
Kranzthor
ille-
that
had
pickup
gally imported
mаrihuana,
route taken
the white
truck on
the Gov-
evening
proved
day
of March 18 seems incon-
ernment
that on the
before
hypothesis
question
sistent
Agents
of innocence.
in
with the
events
Kranzthor bor-
in Mexico last
truck on
saw the
rowed the
from Ro-
agents
white
truck
Highway
southeast,
heading
Vasquez.
Mexican
dolfo
in
March 18
On
away
Juarez. The
did not
from
Mexico
truck
ports
observed Kranzthor meet with
through
pass
entry
Jacobson, Young,
Semple,
either of the
of
Bert
just
southeast
evidence
of Juarez. The
and Frank Daniels at the Cafe
revealed, however,
meeting
that
Rio Grande Monumental. When the
broke
bed,
dry
up,
got
in that area is often
creek
Kranzthor
in the truck with
easily
away.
which cars and
cross.
trucks
one
About
can
Agents
spotted
forty-five
the United States
hour
minutes
approximately
Mexico,
truck
hour and for-
one
truck was last seen in
ty-five
riding
after it had last been
minutes
observed Kranzthor
seen in
At that
it was
Mexico.
time
on the American side of the border.
Paso-Juarez;
southeast
El
how-
heavily
still
of
The truck was
loaded. The
ever,
northwest,
heading
it was then
followed the truck
Frank Dan-
they
back
El
toward
Paso.
contrast to its
iels’s house where
arrested Kranz-
appearance
day,
earlier in the
it was
thor. A
of
the truck
heavily
then
procured
loaded. The
fol- Kranzthor
he
had
and which
riding
pounds
lowed the truck to the Daniels residence
of
was seen
revealed 800
north of
Paso where
found 800
marihuana. When added
the circum-
pounds
indicating
importation
of marihuana in the back of the
stances
argues
marihuana,
argues,
truck.
Government
that
the Government
carrying
truck not
not
contraband would
is sufficient
to allow a
evidence
beyond
have
jury
taken that circuitous route
conclude
reasonable
imported
would have crossed the border at
that Kranzthor
it.
doubt
most
point,
convenient
either the Fabens
As we indicated at
of this
the outset
ports
entry.
or Ysleta
opinion, in a
criminal case which
jury
guilty,
Finally,
argues
has rendered a
Government
verdict
that
physical
appellate
court
sustain that
condition of the marihuana
evidence,
and the items
verdict if there
taking
seized with the
is substantial
marihuana
origin.
foreign
Eight
indicate
its
the view most favorable
country
Government,
pounds
support
hundred
is — in this
it. See Glasser
— a
large
expensive
quantity
of mari
315 U.S.
huana.
Government witnesses testified
S.Ct.
This means
cence. See United States searches 539, 540; 1970, exempt Surrett v. course not 427 F.2d from the Fourth Cir. 403, 1970, States, requirement 5 421 F.2d Amendment that searches United Cir. seizures be United reasonable. Glaziou, supra; States v. United States 77; MeGlone, 1968, 75, v. 4 Cir. 394 F.2d III. States, 1965, Marsh v. United 344 Cir. Note, appellants 317, the F.2d next contend that also Border See Amendment, suppressed all district court should Searches and the Fourth have (1968); ALI, Yale A Model taken from them and their ve- L.J. 1007 Pre-Arraignment their individu- Code of Procedure § hicles for the reason that (Tent. 24, arrests, searches, 3, April 6.02 al the searches SS Draft No. 1970). Yet their vehicles were without warrants probable what is reasonable within meaning Fourth cause in violation of the Fourth Amendment undisputed upon depend It and circum Amendment. is the facts Cooper particular v. of their arrests and the search- stances of the case. time 59, agents California, 1967, 58, 87 S. es of their the Customs U.S. vehicles 788, 790, 730; a Ct. United neither warrant nor 17 L.Ed.2d an arrest Glaziou, supra; hold, however, United search We v. warrant. McGlone,supra. search v. And a border the evidence taken from them and their simply properly is not unreasonable because аs the vehicles was admitted probable Marsh v. made cause. without fruits border searches. valid many Indeed, States, supra. United Recognizing peculiar if be unreasonable searches that would effectively problems difficult involved in by police in the ordi officers conducted policing our national bounda extensive if nary reasonable case are nevertheless ries, Congress granted has offi Customs agents in by lawful Customs conducted authority stop cials broad any person search illegal imports. Thomas pursuit See carry suspected or vehicle States, supra; Alexander v. v. United illegally imported into merchandise supra. States, United the United States and to mer seize only is the Customs Not chandise that the officials hаve reason right agents’ border illegal to conduct a search able cause to believe to have been broad, term “border” is it ly imported. also the but 18 U.S.C. 482. See § Glaziou, States v. 1968, elastic. Glaziou, self supra; United States v. Cir. States, supra. v. Marsh 8, 12; Thomas v. United only includes not the ac 254; The “border” States, 5 Cir. F.2d crossing points also a King tual border States, 9 v. United Cir. geographic extended area F.2d Federal courts 816-818. vicinity crossing immediate unanimously Congres interpreted this Glaziou, supra. point. United States v. grant sional agents to mean that Customs by “right to arrest Customs’ may person stop conduct simply suspect cease because the doesn’t may procuring “border search” first get his foot across on this side of having proba a search warrant or even * * * bridge it extends to the im person has ble cause to believe States, area.” Marsh Moreover, mediate parlance of committed crime. supra. simply because suspi Cus agents’ decisions, these “mere agents inspected person toms or his activity possible cion” of enough crossing point vehicle at does not justify search. a border cause to Cir. 1970, may not mean conduct a sec g., Hill, 5 E. United States v. ond border within the immediate 130-131; United States 430 F.2d vicinity crossing point: person Glaziou, supra; Morales is not immune from further examination Cir. “merely Customs because he States, 9 Cir. Alexander United
«QQ ‘may momentarily- escape detection and Since we have concluded that the evi- pass safely through first Custom’s appellants dence taken from the ” check.’ Thomas su- properly their vehicles admitted as *12 pra; States, see search, also Morales v. United the fruits of a border we valid supra. hand, Supreme On the other need not decide whether the evidence long ago recognized might Court that once a products also be admissible as the entry country arrests, traveler’s into the becomes of searches incident to lawful complete, complete express he is opinion entitled and we no on issue. protection of the Fourth Amendment: IV. lawfully country, those within the en- public highways, titled to use the have argument appellants’ final right passage to free inter- is that under statute which ruption unless there charged, 176a, is un U.S.C. § official, competent known autho- constitutional for the reason that search, probable rized to cause for be- invoicing requirements declaration lieving carry- their vehicles are appellants’ violate the Fifth Amendment contraband or merchandise. against privilege self-incrimination. States, 1925, Carroll v. United 267 U.S. recently This has Court considered 132, 154, 280, 285, 45 S.Ct. 69 L.Ed. States, this issue in Walden United v. 543; States, see also Thomas v. United Cir. 698. held F.2d There we supra; supra. Marsh v. United the face of a similar contention agents Therefore when Customs choose invoicing require the declaration to conduct a border search outside ments of the statute were not unconsti crossing vicinity immediate of a border tutional. The Ninth has reached Circuit рoint, legality the search will the same conclusion. See United States usually depend upon such factors as Avey, 428 F.2d Cir. crossing distance of the search from the 1160; Vansant, 9 United Cir. States v. point, crossing, elapsed the time since Moreover, 1970, 423 F.2d 620. we upon and the circumstances reaffirmed in Walden on at our decision suspicions. base their McGlone least four different occasions. See supra; Alexander v. Johnson, United Cir. States v. States, supra; United Marsh Hudson, 885 F.2d States, supra. 468, 469; 1970, 431 Cir. Candanoza, already 431 F. States v. Cir. We have recited 421, 423-424; 2d some detail the surveillance activities of Houle, the El Paso Cir. area Customs on From evidence we Therefore, out set the reasons evening conclude that late above, we affirm the suspect had reasonable cause to district court. appellants, vehicles, their might pos the white be REHEARING ON PETITION FOR session of merchandise that had been AND REHEAR- PETITION FOR into the United States EN BANC ING clearly A law. border search was PER CURIAM: order. We further hold that reasonably appel Rehearing acted denied The Petition for Judge lants respective panel their vehicles to their nor of this and no member regular destinations in the El Paso area and on the Court active service searching having there polled requested and their Court necessarily rehearing banc, (Rule vehicles for It contraband. 35 Federal en Procedure; follows then Appellate district Local court did Rules denying appellants’ not err in 12) motion the Petition Fifth Circuit Rule suppress Rehearing the evidence. En Banc is denied.