*2 Before MERRILL and ELY, Judges. Circuit MERRILL, Judge: Appellants, together with code- three (one Arellano, fendants one Lewis Cortez), one were indicted in two counts smuggle conspiracy for smuggling Marijuana kilos 30, 1967, violation of U.S.C. 176a. The trials of codefend- § ants Lewis and Cortez were severed permit testify them to as Government Following jury appel- witnesses. trial lant Garcia was convicted on both counts; appellant Mahoney was con- only conspiracy victed count. given conspiracy facts light in detail Lewis. assigned have, appeal errors on this we margin, forth those facts well as the circumstances under which evidence was in the search of obtained occupants.1 automobile its originated The scheme with who Russell.” Garcia and Lewis crossed the help. They Dodge enlisted Lewis’s drove from in the to make final ar- Bay Mexico, rangements San Francisco Area to with Arellano. necessary arrange where Garcia made the In the meantime an ments with Arellano. re forth- then off customs Bay Area, coming attempt. turned to where Lewis en Arel- Both pur listed assistance for the lano Garcia were known to the pose driving the “load” car back from as narcotics violators. Lewis and Bay prom Arizona to the Area. He at Arellano’s home and were observed trip. Garcia, Dodge company. $200 ised Lewis also was Mahoney Yuma, then drove to Ari at observed as was a Cadillac zona, wagon. Later, in Lewis’s drove the Arellano home. Lewis was left to wait at a Yuma back Yuma. registered airport motel where he was him Lewis as “Mike drove to the of search at time question is the the vehicle appeal principal at the time the vehicle admissibility the items abroad in evidence jurisdiction the United into the on its occu- found in the *** Any which States. pants of the search time properly called meets this test entry. Appellants contend ” ‘border search.’ reason- were not the search and seizure suppress motion able and that their here meet *3 In our the facts granted. The Govern- should also there forth. See the standards justi- search was ment contends that the King 814 348 F.2d fied a border search. as denied, Cir.), cert. Rodriguez- (1965); stop for was the search Since F.2d 256 Gonzalez United away question made from the border the suspicion il Mere presents problems similar to those dealt legal activity a sufficient to sustain is with in Alexander v. United border, certainly there search at the and denied, Cir), cert. ground ample suspicion in this was L.Ed.2d 87 S.Ct. case. We conclude that it was not it was stated: deny appellants’ suppress. to motion to “Where, however, a for con- assignments to Other of error we find by traband not Customs officers is be without merit. vicinity made at or in the immediate point of the international ample sup to There was evidence crossing, legality of the the search port Mahoney’s conviction. Lewis’s by must be tested a determination testimony by pres was corroborated the totality whether the surround- the wagon ence of the station at the ing including circumstances, the time motel, Mahoney’s presence Yuma the elapsed and distance as well as the registration motel and his there under surveillance, manner and extent of are an alias. such as to convince the fact finder with certainty reasonable marijuana that contra- Introduction of debris might band which jacket, be found in or on recovered from Arellano’s ifwas Mustang. rented a Mustang, Lewis crossed into cia saw him anil enter the Mustang Mexico in the while in front of a restaurant. The Dodge. companion agent returned to the in motel the The returned for his and agents put stop off the customs called the sheriff’s office to a presence Mustang. Mustang. agents of the the The two customs Mustang, having the customs the then followed the it ei- Arellano, sight nearly border were on sight. the lookout for ther or in The Mustang eventually stopped by and Lewis and for both the Cadil- was the Mustang. lac and the sheriff’s officers thirteen from the miles by first, The Cadillac crossed driven border and held was until the customs Cortez, paid agents caught up. Arellano, who had been $25 for Lewis and trip. stopped The car port and searched Garcia were then returned to the marijuana entry the 93 Mustang kilos of were re- and the was driven back ques- by covered. agents. While one of the At customs tioning Mustang crossed, Cortez the oc- the three codefendants cupied by Arellano and Lewis. It was car were searched. No contraband was (apparently inadvertently) passed found, connecting with- but evidence the car Garcia, out earlier, occupants search. a few minutes with the Cadillac was had entered on foot and had been searched recovered: four screws from the Cadil- passed. jack He was panels, observed to waive lac’s side and two hub- occupants caps. of the slip paper when it Also found was a entered. containing telephone number of the guards questioning Cortez were in- Yuma motel where was await- formed of the fact that ing pro- word. The customs officers then Garcia had motel, entered. broke off their ceeded to the found and seized the questioning and one wagon of them took off in Ma- arrested pursuit. quickly caught up He honey. with Gar- irrelevant, prejudicial. not Sufficient different, situation custody jacket chain was shown apprehended of the however. He competent. it crossing to render the act of the border. Proof of knowledge his marijuana, that of the de Admission subject conspiracy, of the towas be im- void for bris did not render the verdict ported testimony rests on the of Lewis guilt uncertainty. found related presented and the ques- awith charged in the offense the indictment: credibility. tion of Under these circum- that Plazola the 93 kilos. say beyond stances we cannot a reason- United able doubt that did not 1961), inapposite. jury’s affect determination that Ma- by agent Reference customs honey con- cross-examination counsel spiracy importation. “other cases” in which Arellano As af- *4 may preju appellant firmed. As to Mahoney, re- appellants. dicial to these versed and remanded for new trial. deny It was not abuse of discretion appellants’ motion for of trial. severance (dis- (9th Daut v. United senting) F.2d : 1968). Cir. Nor do we than find more I dissent as to the reversal of the con- prejudice the usual results from viction Mahoney. joint trial. my view, clearly error was harm- less. assignment does, final One of error however, require reversal as to
In this ease the was in unexplained posses
structed that from presumption may
sion of importation
drawn that the fact of case,
known.
Since trial of
Supreme Court,
Leary
United States
O'Brien,
INC.,
M.,
M.
O.
Burton
Gerard
B.
v. United
S.Ct.
McAllister,
McAllister, Anthony
J.
has estab
McAllister,
H. Mc
James P.
Roderick
giving
lished that
of that
instruction
McAllister, Pe
Allister and Charles D.
Leary
applies
error.
to this case un
titioners,
holding
der our recent
in United States
Scott,
harmless Garcia’s conspiracy.
conviction for