Petition for A Writ of Certiorari — Warner v. United States

Supreme Court, U.S.

FILED

JUN 8 1971

IN THE

E. ROBERT SEAVER, CLERK

Supreme Court of the Unite

OCTOBER TERM, 1971

. _*

UNITED STATES OF AMERICA,

| . Respondent, Ce ie

versus |

CRAIG WARNER, APRIL COVEY, SAMUEL L.

KRANZTHOR, FRED W. DANIELS, JR., FRIEDA

E. EDWARDS, FRANK DANIELS, and MICHAEL

= A. JACOBSON,

Petitioners. .

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH. CIRCUIT

LEE A. CHAGRA -

Attorney for Petitioners

616 E. San Antonio Street

El Paso, Texas 79901

JOSEPH\A. CALAMIA

Of Counsel

608 Southwest Center _

El Paso, Texas 79901

eins WU 8. oe

Jurisdiction Pokey fee 2

Questions Presented et vaxuen i ae eee . 3 Pd

. Constitutional Provisions. Involved \..........-.-: 4 F

: Statutes Involved ea cts edaee ‘ Sa Ra ee : - ae weed ih

| Statement of Facts ............... ae uerS “a er Sry 5

Reasons for Granting the Writ ............ Leet 8

Conclusion Seatr aes Se ee ee ener 17

Appendix A - ee, Below ees a Ae a De a,

Appendix B - Denial of Court Below to Petition- '

ers’ Petition for Rehearing aid Petition for

‘Rehearing En Banc .......... Tee eudeeatecens 27a

Appendix C - Judgment Rac ANNE OH ts yeseea de , 28a ;

AUTHORITIES “ Saks

Cases: . est ie de

Grosso v. United States, 1968, 390 US.. 62, 19

L.Ed.2d 906, 8 S.Ct. 709 .....,........ 9, 10, 13, 14

‘Leary v. United States, 1969, 395 US. 6, 23

‘L.Ed.2d 57,,89 S.Ct. 1532 . 3, 8, 9, 10, 11, 12, 13, 14, 15

Marchetti v. United States, 1968, 390 U.S. 39, 19

L.Ed.2d 889, 88 S.Ct. eT EET TEES 9, 10, 18, 14 ©

United States v. Falcone, 1940, 311 U.S. 205, 85

L.Ed. 128, 61 S.Ct. 204 6.00.0... te eee |

| II

AUTHORITIES (Continued)

| Page

Walden v. United ‘States, (5th Cir. o “17

ONO oe Bec a ae

Witt-v: United States, (Qth Cir. 1969). 413 F.2d_

ike FRC oume paneer We eos eee 11.

Constitutional Provisions: .

United States Constitution:

ae Fifth Amendment ................ eoeteh ens 4

Statutes: ee As } 4

Pedeeet Statutes: | gestae

21:U.S.C. §176(a) Ris 2, 3, 4, 5, 9, 10, 12, 13, 14, 16

26 U.S.C. $4744(a)(1) ........... Prat eerie 8, 14

Pa

IN. THE

SUPREME COURT OF THE UNITED STATES

October Term, 1971 .

No.

_ UNITED STATES OF AMERICA,

: Respondent,

A ae versus

CRAIG WARNER, APRIL COVEY, SAMUEL L.

- KRANZTHOR, FRED W. DANIELS, JR., FRIEDA E.

EDWARDS, FRANK DANIELS and

MICHAEL A. JACOBSON,

‘Petitioners.

PETITION FOR A WRIT OF CERTIORARI. TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH. CIRCUIT

The petitioners, CRAIG WARNER, APRIL COVEY,

SAMUEL L. KRANZTHOR, FRED W. DANIELS, JR., .

FRIEDA E. EDWARDS, FRANK DANIELS and MI-

CHAEL A. JACOBSON, pray that a writ of certiorari -

issue to reviéw the judgment and opinion. of the

United States Court of Appeals for the Fifth ream,

entered in this proceeding on Agen 8, 1971.

2

OPINIONS BELOW

The opinion of the United States. Court of Appeals for

the Fifth Circuit, as yet unreported, appears Appendix’

ree at

A, infra, pp. la. A petition for rehearing and petition

for rehearing en banc, which was timely filed in the

United States Court of Appeals for the Fifth Circuit,

was denied. without opinién. The denial appears at

Appendix B, pp. 27a. The case at bar is an appeal

_ from the United States District Court for the Western .-

District of Texas, El Paso Division; no opinion Was

written by the trial court.

_, JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit was entered on April 8, 1971. A ©

petition for rehearing and petition for rehearing en

banc was timely filed. On May 10, 1971, the petition

was denied by the United States Court of Appeals for

the Fifth Circuit. This petition for certiorari was filed

less than 90 days from the date aforesaid. The juris-

diction of this Court is invoked under 28 U.S.C. §1254(1). °

QUESTIONS PRESENTED

.. All of the petitioners were convicted for a conspiracy

‘to violate 21 U.S.C. $176(a) and petitioner SAMUEL L..,

.KRANZTHOR was also convicted for the actual vio-

lation of 21 U.S.C. §176(a). The questions em, aris-

ing are: .

‘1. Whether or not 21 U.S.C. §176(a), under which

the indictment was brought and petitioners convicted,

is Unconstitutional as violative of the Fifth Amend-

mens privilege against self-incrimination. .

.

3 bap

; ;

:

ad

2. . Whether“ or not ae decision of the United States

Court of Appeals for the Fifth Circuit, through ithe use |

of the conspiracy statute and its statement on —

_ stantial evidence, circumvents this Court’s go ee in

the case of Leary v. United” States, 1969; 395 US. 6, 23

L.Ed.2d 57, 89 S.Ct. 1532, insofar as the Leary case

deals with the presumption of importation. In this

' respect, your petitioners would show this Honorable

_Court that in a prosecution for conspiracy to violate 21

U.S.C. §176(a), the presumption of importation exists

if the court allows the evidence presented in the ‘case

at bar to be sufficient to prove importation beyond a> ‘

reasonable doubt. 9

3. Whether or not the government ‘is using the con-

- spiracy statutes in prosecutions for violations of 21.

U.S.C. §176(a) as a tool or means of convincing individ-

- uals and associates of anyone found in the possession

of a.large quantity of marihuana. Petitioners would

respectfully show this Honorable Court that a situa- —

tion exists within this Country that circumvents the

Leary decision in that if 4 large amount of marihuana

is introduced into evidence at the trial of a case in-

volving a violation of 21 U.S.C. §176(a), it:is impossible .

for a defendant, without testifying on his own behalf

in a circumstantial evidénce case, to receive a fair

trial if the appellate court’s decision is to be the law

| ofthe land because the amount of evidence needed to

convict on a conspiracy to violate this statute becomes

minute.

{- D -

- &

RET aR ae =

4

CONSTITUTIONAL PROVISIONS INVOLVED

“ Constitution of the United States, Amendment

‘er Mas ee ) .

“No person shall’. . . be compelled in any

criminal case to be a witness against himself,

nor be deprived of life, liberty, or property,

without due process of law .: .”

* STATUTES INVOLVED

Pat *

€ /

21 U.S.C. §176(a):

“Notwithstanding any other provision of law, who-

ever knowingly, with intent:to defraud the United

States, imports or brings into the United States mari-

huana contrary to law, or smuggles or clandestinely in-

-. troduces into the United States: marihuana -which ©

should heave been invoiced, or receives, conceals, buys,

sells; or 11 any manner facilitates the transportation,

concéalment, or sale of such marihuana after being

imported or brought in, knowing the same to have

been imported or’ brought into the United: States con-

‘trary to ‘law, or whoever conspires:to do any of the

foregoing acts, shail be imprisoned not less than five

or more than twenty years and, in addition, may be

fined not more than $20,000.00. For a second or sub-

| - sequent offense (as determined under section 7237(c)

of the Internaj’ Revenue Code -of 1954), the offender

shall be imprisoned for not less than ten or:more than

.: forty years and, in addition, may bé fined not more

than $20,000.00.)

“Whenever on trial for a violation of this sub-section,

the defendant is shown to have or to have had the

marihuana in his possession, such possession shall be |

deemed sufficient evidence to authorize conviction un-

less the defendant het ananan his possession to the satis-.

faction of the jury.” |

/

‘ed naaiitit OF FACTS

The facts relevant to the questions presented by this

petition are found in the transcript and summarized as

_, viewed most favorably from the government's position

in this-case by United States Court of Appeals for the |

Fifth Circuit (Appendix A, pp. 7 - 15), and that such

interpretation of the facts is in a light most favorable

to the government.

| te addition to the facts as stated in the court’s opin-

ion, your petitioner APRIL COVEY would point out

to the Court that she was never seen in the-company

of any of the other petitioners, except CRAIG WAR-

NER, and then only at the time of their arrest in the

United States; she was never seen in his company in

Mexico; and the most damaging piece of evidence a-

. gainst her was a receipt ind\jcating that in Guadala-

jara, Mexico, on March 10, 1969, she exchanged $510.00

for Mexican money. |

- oe

eons

Your petitioner CRAIG WARNER would show this

Honorable Court that in addition to the facts as stated

by the United States Court of Appeals for the Fifth

Circuit, he was never seen in Mexico-or in the com-

pany of| the other petitioners in Mexico. The most

DBE LLR OR RINDI AI

SP - ERIS

GEE LLALOT AE SF

ae

e

damaging bits of evidence was a‘hotel bill dated

‘March 13, 1969, indicating the payment of 300 pesos to

‘a motel in Yucatan, Mexico, for two persons for three

days; and a repair bill from Yucatan, Mexico, dated

March 15, 1969. . 3

. In addition to the facts as stated by the United States

' Court of Appeals for the Fifth Circuit, your petitioner

‘-FRIEDA E. EDWARDS would point out to the Court

that she was seen.in the company of two unidentified

persons, in Mexico, with a car-top carrier: on her

Volkswagen sedan which car-top- carrier vanished.

Later it was shown that a similar car-top carrier was

found containing raarihuana. Never was it shown that

petitioner‘ FRIEDA E. EDWARDS had the car-top

carrier loaded with anything, much less marihuana, in

| the Country of Mexico, and there is certainly no indi-

cation given by the testimony as to what the car-top

carrier may have contained when seen in Mexico and

certainly.no indication as to the petitioner FRIEDA

EDWARDS’ knowledge of what may or —, not have

been in the car- top « carrier.

In addition to the facts as stated by the United States

Court of Appeals for the Fifth Circuit, your appellant,

MICHAEL A. JACOBSON would show this Honorable

Court that he-attended an alleged meeting at a cafe,

in Mexico, where no conversation was overheard, with

other of the co-petitioners and was later arrested in

| the United States. In MICHAEL A. JACOBSON’s ve-

—hicle were found some plastic. bags similar to those

containing the marihuana. In. this respect, your peti-

tioners would respectfully point out that the. court

dismissed the charges against MICHAEL YOUNG, one

of the original defendants in this case, who was ar-

rested with MICHAEL JACOBSON, as stated in facts

set out by the United States Court of Appeals for the

- Fifth Circuit: Petitioners would point out -that MI-

CHAEL YOUNG was also seen in the presence of

some of the petitioners in Mexico and that there is no

valid reason why the evidence could be insufficient

' as to him and insufficient as to the other petitioners.

In addition to the facts as stated by the United States

Court of Appeals for the Fifth Circuit, your appellant

FRANK DANIELS would show this: Honorable Court

that the only’ testimony concerning him was that he

was seen in the-Country of Mexico with some of the

co-petitioners, talking. Never was he seen to do any-

thing illegal, unlawful or suspicious. The keys alleged-

ly found in a jacket which he wore on the night of his

arrest which fit some of the suitcases containing the

‘marihuana was the final link to him. .

In addition to the facts stated by the United States

Court of Appeals for the Fifth Circuit, your petitioner

FRED W. DANIELS, JR. would show this Honorable

Court that the only evidence against him was a re-

‘mark he made to a cab driver which allegedly started

' the whole investigation, the remark being: “I thought

_ those inspectors were real smart.” Such remark was

testified to by the cab driver in Spanish and there

was some controversy as to the English translation. —

He was then seen at the cafe in Juarez, Mexico, talk-

ing to some of the co-petitioners and other than these

Ee Lae IES ORE

ertreteetco eerie:

Be EAE aN SE eS

related incidents was not heard to mad ‘anything or :

seen to do ——- suspicious,

Your oulaeiaie SAMUEL’ L. _KRANZTHOR was ad-

_mittedly-in the truck, ‘in the United States, which con-

' tained the contraband introduced into evidence in this

case. However, petitioners would strenuously urge |

‘this Court to-read the statement of facts as‘set out by

_ the United States Court of Appeals for the Fifth Cir-

cuit for the purpose of ascertaining that although all

of the ‘appellants were followed and watched by

United States Customs Agents continuously in the

Country of Mexico and the United States, that none of

the marihuana, later found in the truck inthe United

States, was ever seen in Mexico; nor any of the con- -

tainers in which the marihuana was found, was ever

seen'in Mexico; nor was there any testimony showing

that the marihuana was imported from Mexico.

REASONS FOR GRANTING THE WRIT

1. The decision below directly conflicts with the Due

Process Clause and the Fifth Amendment. principles enun-:

ciated in this Court’s decision in LEARY V. UNITED

STATES, — 395 U.S. 6, 23 L-Ed.2d aa 89 S.Ct. 1532.

. In the Lacey case, this Honorable Court held that the

tax count of 26 U.S.C. §4744(a)(1) was Unconstitutional ze

as violative of the defendant’s Fifth Amendment

Rights. The reasoning of this Honorable Court in that

case was that the signing of the necessary forms and

the.payment of the taxes on the importation of mari-

huana was an admission of the possession ‘of mari-

_huana. The Court accepted the fact that the posses-

sion of marihuana was a crime in every State of the

- Union. Although 21 U.S.C. §176(a) is no longer the law

of the land, because it has been superceded by various

laws concerning the smuggling, possession and impor-:

tation of marihuana and other narcotics, your peti- —

tioners herein face severe prison sentences for viola--

tion. of. this law. Your petitioners would: respectfully

show this: Honorable Court that if this Court intends to

- follow the reasoning of the doctrines espoused in

Leary v. United States, 1969, 395 U.S. 6, 23 L.Ed.2d 57, -

89 S.Ct. 1532; Grosso v. United States, 1968, 390 U.S.

62, 19 L.Ed.2d 906, 88 S.Ct. 709; and Marchetti v. United

/ States, 1968, 390 U.S. 39, 19 L.Ed.2d 889, 88° S.Ct. 697,

then this Court must strike down the provisions of 21

U.S.C. §176(a) as being Unconstitutional for the same

reasons. There are other statutes which require an

admission or acknowledgment of an act allowed by

.the Federal government which is against State law

and the ‘same reasoning would apply to these statutes.

The Court’s refusal to grant a writ of certiorari in the

case-at bar would’be to allow citizens of this Country

to be incarcerated under a statute which provides for

the same self-incrimination as that objected to in the

Leary, Grosso, and Marchetti cases. Petitioners would

respectfully point out to the Court that prior to May

1, 1971, the importation was not forbidden by the

United States Government. The forbidden act was the .

importation “contrary to law”. The statute on its face

therefore allows such importation if the marihuana is.

properly declared and. invoiced. To properly declare

and invoice marihuana, would be ‘just as damning an

admission of possession of marihuana as would be

‘e

ee 10

the payment of the tax and the signing of the invoices

which were struck down in the. Leary. decision. In

view of the Court’s constant refusal to grant certiorari

to settle once and for all the exact meaning’ of the

Leary, Grosso and Marchetti decisions, the appellate

courts are not applying the reasoning of the cases to

other statutes, hut are only declaring the exact'stat-—

utes which were the subject of the three cases cited

above to remain Unconstitutional. Any other statute

that the United States Government has, which on its

face involves self-incrimination, will be allowed to be

the basis of a prosecution unless and until this’ Court

states clearly and unequivocably its meaning as stated

in Leary, Grosso and Marchetti decisions.

Petitioners admit that the Ninth Circuit and the

Fifth Circuit have continuously held that the reason-

ing of Leary does not apply to 21 U.S.C. §176(a). How-

ever, their method of reaching this conclusion is totally

inconsistent with this Court’s reasoning in Leary, and,

in fact, inconsistent with the reasoning of each other.

The Ninth Circuit reaches its decision in failing to

strike down the statute by the following method of

reasoning: °

“The appellant reasons that a person bring-

ing marihuana into the: United States must

smuggle it in, because to invoice it and pre-

sent it for inspection would provide a ‘link in

‘the chain’ of evidence tending to establish his

guilt, and would violate his Fifth Amendment -

privilege against self-incrimination. There is

- about as much logic in that reasoning as there

11

_ would be in. the contention of a bank robber

‘that he was required to shoot the bank guard

. who ordered him to drop his gun and raise his

hands, because to comply with the guard’s or-

ders would be self-incriminating and would

provide a ‘link in the chain’ of evidence tend-

ing to establish his guilt, all in violation of his

Fifth Amendment privilege against self-in-

-crimination.. The same.claim might be made

by the burglar who is accosted by a police of-

ficer as he crawls out of the window of a resi-

: dence at three A.M. and is ordered to submit

-to an inspection of the luggage he is carrying.

' To hold that the privilege was available in any

of these cases would border on the ridiculous _

and would effectively frustrate all criminal

laws.” Witt v. United —_— 1969, 413 F.2d at

305, 306.

Petitioners would respectfully point out that that same.

kind of reasoning could be used in allowing the tax

count as-struck down in Leary tg remain in full force

and effect. It is obvious from the Ninth Circuit’s rea-

soning that the courts are failing completely to fol-

low Leary or to distinguish it in any manner.

Sdrprisingly enough, ine Fifth Circuit reaches its ©

decision in failing to strike down the statute by another

type of reasoning, nowhere near the reasoning of

the Ninth Circuit, but arriving at the same result, as

evidenced by the following decision:

—

7

12

“[I]n Grosso and Marchetti the defendants

were convicted of failing to pay taxes to the

United States on activities which the States

had declared to be illegal. The United States

made its tax records available to ‘the states.

Therefore compliance with the Federal wager-

ing tax statutes meant. incrimination at the

State level. - ‘But compliance with 21 U.S.C.

§176a précipitates no such incrimination. Had.

Walden declared and invoiced the marihuana

at the border, it would have been immediately

seized by Customs. At that point Walden would

_ not have been vulnerable to prosecution, either

-Federal or. State, because he would have com-

plied with the Federal law and he would have °

«never reached the State of Texas with mari-

huana in his possession.” Walden v. United

States, 1969, 417 F.2d at 700.

‘The Fifth Circuit, therefore, reads into the statute the

right of United States Customs service to seize the

marihuana if it is declared and invoiced, and therefore

a citizen is now found in the paradox of viewing a

. . statute which says he may import marihuana as long

as he does not do so contrary to law, but that at such |

time that he complies with the law on the importation

of marihuana, that the same will be taken from him. .

- Petitioners would respectfully suggest that the rea-

_ soning of the United States Court of Appeals for the

' Fifth Circuit in failing to ‘strike down 21 U.S.C. §176(a)

is inconsistent with the reasoning in the Leary decision

_and in fact, presupposes, -without benefit of statute or

13

court decision, that Customs officials would have the

- right to seize at-will marihuana which had. been prop-.

erly declared and. invoiced.

Petitioners would respectfully point out to this Court,

' that this Court has repeatedly declared that if the

United States Government: allows-.an act to be done,

which is. in violation of State law, and to perform such

act allowed by the United States Government requires

the disclosing, in writing, of the name of the person

' doing the act, then the statute of the United States re-

quiring this disclosure is Unconstitutional in that it

violates the participants’ Fifth Amendment privilege

because it subjects him to prosecution under State law.

Petitioners cannot conceivably think of any situation

more severe than the declaring and invoicing require-

ments of 21 U.S.C. §176(a) and certainly cannot think

of any statute of this government so contrary to rea-’.

. soning in this Court’s decisions in Leary, ‘Grosso and

Marchetti, as 21 U.S.C. jenn

The’ importance of the Court granting certiorari. in

this case is that the decisions in Leary, Grosso, and

Marchetti need clarification as evidenced by. the rea-

: soning ‘of the United States Court of Appeals for the

i “Fifth and Ninth Circuits in attempting to follow them.

By granting certiorari, this Court would be able to fur-

ther solidify the reasoning used by this Court in strik-

ing down the statute in Leary, Grosso, and Marchetti.

If the reasoning does not apply to 21 U.S.C. §176(a) or

statutes similar to 21 U.S.C. §176(a), then the Court

should clearly and-concisely distinguish the reasoning.

Thusly, the lower courts would be better ‘able to fol-

; 14

low such reasoning and comply with the decisions of

this Court in future cases involving United ae stat-

utes which require self-incrimination.

If. this Court refuses to grant cnet then the only ~

statutes under which this Country’s citizens wil! be»

- protected’ against self-incrimination are the statutes

in Leary; Grosso and Marchetti. Even though other

statutes may be equally violative and harsh, as far as

their Fifth Amendment Rights are concerned, they will

continue to be convicted and serve sentences for their

violation. Petitioners respectfully submit that under no

logical reasoning can 21 U.S.C. §176(a) survive in light

- of the case of Leary v. United States, supra.

'2. The decision below, in view of the evidence as stated :

by the United States Court of Appeals for the Fifth Circuit

- and restated in appellants’ petition for writ of certiorari,

: allows the presumption of importation to remain in a case

- involving mafihuana. 7 |

' This Court recognized in ‘Leary Vv. United States, su-

pra, that marihuana could be grown in bulk in the Unit-

ed States. It was further recognized that the presump-

tion of importation would not be allowed to remain in.

prosecution under 26 U.S.C. §4744(a) (1). However,

-'. in the case at bar, arid in view of the decisions of the

lower courts, this presumption is being allowed to re-

main in cases involving importation of marihuana.

Although the jury is not in fact instructed that they may

presume the importation of marihuana, cases are

_ allowed to reach a jury, which if the contraband involv- -

ed was gold or any other product not being marihuana,

a Uae etary oe

as a. ‘matter of law, the. ‘evidence would be ruled in-—

sufficient to show importation. It is a difficult thing to _

point out to this Court that the «inherent feeling that -

all marihuana is Mexican ‘marihtiana, is reaching the

court room by allowing cases with no evidence what-

soever, circumstantl or direct, of importation. Yet

these cases are Os RED to go. to.a jury who with-

out, exception find the importation to exist. Therefore, it . .

would be important to grant certiorari in this: case to” es

restate. and reaffirm this Court’s decision in Leary and

to set standards of evidence needed as a matter of ne.

to show importation. }

3. The decision below raises problems as to the degree of

proof now needed by the government in a circumstantial oe

evidence case concerning a crime of conspiracy.

The court in finding sufficient evidence to show a con-

spiracy relied on the case of United States v. Falcone,

1940, 311 US. 205, 85 L.Ed. 128, 61 S.Ct. 204, holding that

‘the evidence in this case is; in itself, sufficient to show ;

a conspiracy. ‘The Court should grant certiorari in this

_ ease in order to set out, constitutionally, the degree of

evidence required in prosecutions for conspiracy. Hun-

‘dreds of prosecutions across the United States are

being. brought under. the conspiracy statutes and to

simply allow a conspiracy to be proved because of a

defendant's presence in the company. of alleged co-

conspirators who are jointly charged with a crime,

which concerns passion and prejudice, as" the crime of

smuggling marihuana necessarily involves, allows the

government to prosecute and convict almost anyone

associated in any way, with an alleged conspirator of

Cn.

16

a crime such as this one. Petitioners would respectfully

pare that this Court grant certiorari in this case

“’/for the reason that the Federal Government, the courts

and juries, in general, have made dangerous and unjust

_inferences from circumstantial evidence. in cases in-

_volving conspiracy, which is resulting in the conviction

of individuals with whip or no evidenc

dence involved i int ‘is case and to standardize. the de-

gree of proof réquired in cases involving conspiracy.

Your petitio hers would further ver out to this Hon-

ordble Court t tat nowhere in 21 U:S.C. §176(a) is the

term “contrary to law” defined: The only provisions in

the statute whichwould allow a potentiatimporter to |

import marihuana is the wording of the statute which -

. marihuana which should have been invoic-.

ae To invoice the marjhuana and to declare it .

therefore, as,pitescribed by law, would, of necessity,

. + subject the’importer to prosecution under State law.

al

Says:

17

SRN.

For these reasons, a writ of certiorari should issue to

review the judgment and opinion of the United States

Court of Appeals for the Fifth Circuit. —

Respectfully ‘submitted,

LEE A. CHAGRA.

Attorney for Petitioners

616 E. San Antonio Street »

El Paso, Texas 79901 |

JOSEPH A. CALAMIA

Of Counsel ' .

608 Southwest Center

El Paso, Texas 79901

June 3, 1971 . - |

CERTIFICATE

I certify that on this the

served a true copy of the foregoing Petition for Writ

of: Certiorari on: Mr. Wayne Speck, Assistant United

States Attorney, by mailing him a copy by Air Mail

‘Postage Prepaid, to his offices, Federal Courthouse

Building, San Antonio, Texas, and another copy on the

- Solictor General, by mailing-him a copy, Air Mail Post-

age Prepaid, Department of Justice, Washington, D. C. -

JOSEPH A. CALAMIA

ELIE ARPT ae

day of{June, 1971, I

i

A

s?

F

&

la

APPENDIX A

- _. IN THE |

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 29505

|

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

. |

CRAIG WARNER, APRIL COVEY, SAMUEL L. |

KRANZTHOR, FRED W. DANIELS, JR., FRIEDA E.

EDWARDS, FRANK DANIELS and

MICHAEL A. JACOBSON,

‘ ; Defendants-Appellants.

’

Appeals from the United States District Court for the

Western District of Texas

. (April 8, 1971)

Before WISDOM. THORNBERRY, and DYER,

Circuit Judges. :

WISDOM, Circuit Judge: The defendants-appel-

lants — Samuel L. Kranzthor, Fred W. Daniels, Jr.,

. Frieda E. Edwards, Frank Daniels, Michael A. Jacob-

~ son, Craig R. Warner, and April L. Covey — were

charged with having conspired knowingly and with in-

* 27a

tent to defraud the United States to import marihuana:

into the United States contrary to law, in violation of

21 U.S.C. § 176a.1 Three other persons were also

named in the ‘indictment: Richard C. Semple, Iil,

Michael G. Young, and Rodolfo To " er was

1 § 176a. Smuggling of marihuana; penalties: evi-

. dence; definition of marihuana

Notwithstanding any other provision of law, who-

ever, knowingly, with intent to defraud: the United

_ States, imports or brings into the United States mari-_

huana contrary to law, or smuggles or clandestinely

introduces into the United States marihuana which

‘should have been invoiced, or receives, conceals, buys,

7 sells, or in any manner facilitates the transportation,

concealment, or sale of such marihuana after being

’ . imported or brought in, knowing the same to have been

imported or brought into the United States contrary to

law, or whoever conspires to do any of the foregoing

acts, shall be imprisoned not less than five or more

than twenty years and, in addition, may be fined not

more than $20,000.

-2The counts of the indictment on which the Government elected

to proceed charge the following acts:

FIRST COUNT .

(21 U.S.C. § 176(a) )

: ‘That beginning on or about March 2, 1969, and con-

tinuously thereafter until on or about March 18, 1969,

in the Western District of Texas, and at other places

without the jurisdiction of this Court, RICHARD C-.:

SEMPLE III, SAMUEL L. KRANZTHOR, FRED W.

DANIELS, JR.,’ FRIEDA E, EDWARDS, FRANK

DANIELS, MICHAEL ‘A. JACOBSON, MICHAEL G.

YOUNG, CRAIG R. WARNER, RODOLFO VASQUEZ |

and APRIL L. COVEY conspired, confederated’ and

apreed together and with each other and with other

: persons to the Grand Jury unknown, knowingly and

with intent to defraud the United States, to import

and bring into the United States _marihuana contrary

to law, in violation of 21 U.S.C. § 176fa), and in fur-

therance of their said conspiracy and to effect its ob-

jects, they performed, among others, the following

_ overt acts:

1. On or about March 2, 1969, SAMUEL L. KRANZ:

*

Ete ER EERE RPL LLP NALIN fT

a

rR

4

SkUpaais RE crea GRRE ER Skea am ee See esa ia as nae

t per os mS , °

‘3a

THOR wrote a letter from the Bel Air Motor Lodge,

1811 North Mesa Street, El Paso, Texas, to Rodolfo —

“Fito” Vasquez, % Delia’s Beauty Shop, Fabens, Texas,

and marked the letter ‘personal’.

2...On or about March 5, 1969, MICHAEL A.

JACOBSON - obtained Mexican Tourist Permit No.

952665 and Vehicle Permit No. 066881 covering his

. 1968 Volkswagen Station Wagon bearing 1969 Arizona

License LBH-433. in Nogales, Sonora, Mexico.

3. Prior to March 10, 1969, MICHAEL A. JACOB-

SON and MICHAEL YOUNG entered Mexico from the

United States in MICHAEL A. JACOBSON’s 1968

Volkswagen Station Wagon, Arizona license LBH-433.

4. Prior to March 10, 1969, CRAIG R. WARNER.

and APRIL L. COVEY entered Mexico from the Unit-

ed States in CRAIG R.-WARNER’s 1959 Volkswagen

Station Wagon bearing 1968 Arizona license HSJ-910.

5. Prior to March 15, 1969; FRIEDA E. EDWARDS

entered Mexico from the United States in her 1954

‘Volkswagen sedan bearing 1968 Texas license CLY-80.

6. Prior to March 15, 1969, FRED. W. DANIELS,

_ JR. entered Mexico from the United States. . .

7. From March 13, 1969 through March 15, 1969,

CRAIG R. WARNER and APRIL L. COVEY stayed at

the Motel Pie de la Sierra, Uruapan, Michoacan, Mexi-

co.

8. On March 18, 1969 of saeitasabeliiiiaiine 9:00 a.m.,

RICHARD. C. SEMPLE, III and FRED W. DANIELS,

JR., entered the United States from Mexico. via. the

Avenida de las Americas Bridge (Cordova Port of

Entry) in a Mexican taxi from Sylvia’s Cab Stand in

Juarez, Mexico.

9. On March 18, 1969, at approximately 11:30 a.m.,

FRIEDA E.. EDWARDS left the Las Vegas Motel,

Juarez, Mexico, in her 1964 Volkswagen sedan, Texas

license CYL-80, carrying a large loaded luggage rack

‘covered with a green tarpaulin and secured with cord.

10. On or about March 18, 1969, at approximately

12:00 noon SAMUEL L. KRANZTHOR landed his Tri-

Pacer aircraft,. Registry No. N1766A, at the Fabens,

Texas, Airport. |

11. On March 18, 1969, shortly after noon, Rodolfo

Vasquez picked SAMUEL L. KRANZTHOR up at the

-Fabens Airport and drove to his farm south of Fabens,

Texas, in his 1966 Chevrolet Pickup Truck bearing

1968 Texas license 8H-3353.

4a

never apprehended and remains a fugitive. The utes

nine defendants pleaded not’ guilty and stood trial by

jury. At the close of all the evidence the district court

granted Young’s motion for judgment of acquittal. The

jury acquitted Vasquez but convicted the other seven

defendants. .Kranzthor was also convicted of the sub-

stantive offense of knowingly importing marihuana in--

to the United States contrary to law.? The district court

-sentenced Kranzthor to serve two concurrent tén-year

terms in a federal penitentiary. The court sentenced

‘ Frank Daniels under the Youth Corrections -Act,

18 U.S.C. § 5005 et seq. The remaining five defendants

were sentenced to. serve six-year terms in a federal —

penitentiary.:

12. On March 18, 1969, sometimes prior to 4:15

p.m., SAMUEL L. KRANZTHOR, RICHARD C. SEM-

PLE, Il], and MICHAEL A. JACOBSON entered the

Cafe Monumental in Juarez, Chihuahua, Mexico.

13. On March 18, 1969, at approximately 4:20 p.m.,

‘FRANK: DANIELS, FRED .W. DANIELS, JR., and

‘MICHAEL G. YOUNG, joined MICHAEL A. JACOB-

SON, SAMUEL L. KRANZTHOR and RICHARD C.

SEMPLE, III ‘in the Cafe Monumental in Juarez, Chi-

huahua, Mexico.

14. On March 18, 1969, at approximately 8°55 p.m.,

CRAIG R. WARNER and APRIL L. COVVEY left the

Riviera Motel in CRAIG R. WARNER’s 1959 Volks-

wagen Station Wagon, Arizona: license HSJ-910

THIRD COUNT -

(21 U.S.C..§ 176(a) )

That on or about March 18, 1969, in the Western Dis-

trict of Texas, RICHARD C. SEMPLE, III and SAM-

UEL L. KRANZTHOR knowingly, with intent to de-

fraud the United States, imported and brought into

. the United States contrary to law approximately 800

Pounds of Marihuana.

*Bert Semple was.also charged with having knowingly imported

‘ marihuana into the United States contrary to law. See footnote ©

2 supra.

. da

On appeal to this Court four points of error are

raised. (1) All of the appellants contend that the dis-

trict court erred in denying their motions for judgment

of acquittal, because the evidence was insufficient to

sustain their convictions for conspiracy. (2) Kranzthor

contends that the court erred in denying his motion

for judgment of acquittal, because the evidence was

insufficient to sustain his conviction for the substantive

offense. (3) All of the appellants contend that the court

erred in admitting the evidence taken from them and

their vehicles, because — so they argue —. their ar-

rests and the searches of their vehicles were without

a warrant or probable cause. (4) The appellants’ final

contention is that the statute“under which they were

charged, 21 U.S.C. § 176a, is unconstitutional; because

it violates the Fifth Amendment privilege against self-

sncrimination. We conclude that the judgment of the

district court must be affirmed.

The first two contentions are that the Government’s

evidence is insufficient to support defendants’ convic- *

tions for conspiracy and Kranzthor’s conviction for the

substantive offense of illegal importation of - mari-

juana. : . |

On a motion. for judgment of acquittal, the test is.

whether, taking the view most favorable to the Govern-

ment, a reasonably-minded jury could accept the rele-

vant evidence as adequate and sufficient to support

the conclusion of the defendant’s guilt beyond a. rea-

Sonable doubt. Sanders v. United States, 5 Cir: 1969,

416 F.2d 194, 196; Jones v. United States, 1968, 391 F.2d

6a

| 273, 274; Weaver v. United States, 1 Cir. 1967, 374 F.2d

878, 881. It is true that much of the evidence in this

case is: circumstantial,, and that at one time some

courts expressed the view that in criminal cases based

on circumstantial evidence a special rule required the

district court to grant the motion for acquittal unless

the circumstantial evidence excluded every reason-

‘able hypothesis other than that of guilt.4 The Supreme

Court, however, has said that “[c]lircumstantial evi- -

dence ... is intrinsically no different from testimonial

evidence” and that “where the jury is properly in-

structed on the standards for reasonable doubt, such

-an additional instruction on circumstantial evidence

is confusing and incorrect.” Holland v. United States,

1954, 348 U.S. 121,.140, 75 S.Ct. 127, 99 L.Ed. 150, 166.

The. same test, therefore, for judging the sufficiency

of the evidence should apply whether the evidence is

direct or circumstantial. Indeed, that is the prevailing

rule in the federal courts today. See 2 C. Wright, Fed-

eral Practice & Procedure § 467, at 258. To reconcile.

some older Fifth Circuit cases with ‘the Supreme

Court’s clear holding in Holland, this Court has

re-phrased the substantial evidence test: In criminal

- eases based on circumstantial evidence our task is to

-determine whether: reasonable minds could conclude

that the evidence is inconsistent with the hypothesis

_ of the accused’s innocence. United | \States v. Andrews,

5 Cir. 1970, 427 F.2d 539; 540; Surrett v: United States,

5 Cir. 1970, 421 F.2d 403, 405. Notwithstanding these

differences, which some might term verbalistic, we

4See, e.g., Riggs v. United States, 5 Cir. 1960, 280 F.2d 949, 955;

‘Cuthbert v. United States, 5 Cir. 1960, 278 F.2d 220, 224-25; 2

C. Wright, Federal Practice & Procedure § 467, at 257-58.

¥

7a

are in agreement with our brothers in other circuits

that whether the evidence be direct.or circumstantial,

the matter of the defendant’s guilt is for the jury to

decide unless the court concludes that the jury - -must -

necessarily have had a _ reasonable ‘doubt. - See 2

C. Wright, Federal Practice & Procedure § 467, at

259. oy ois

- Since there were seven defendants indicted and con-

‘ victed and since the principal question this case pre-

sents is whether as to each one the-Government’s evi-

‘dence was sufficient to sustain his conviction, in jus-

tice to each, a somewhat lengthy discussion of the Gov--.

ernment’s case is necessary. °

* At 9:00 a.m. on March 18, 1969, a Mexican. taxicab

carrying Fred Daniels and Bert Semple entered the

United States at the Cordova Bridge in El-Paso, Texas.

_ Because both men appeared nervous and- United States

' Customs inspectors had information that Daniels .was

suspected of smuggling, the inspectors at El Paso de-

tained Daniels and Semple momentarily and. searched

them. The search revealed nothing but the inspectors

asked the Mexican taxi driver, as they had occasional-

ly done in the past, to report to them after he let off

the two men. The driver reported to the inspectors

_ that following the search one of the men had said to_

him in Spanish, “I thought those inspectors were real

. smart.” He added that it had been useless for the of-

ficials to search them since they were not bringing.

anything back -into the country: “What we had, we

left in Mexico.” The men told the driver that someone

might be following them and gave him a tip of four

' dollars on a ride that cost only four dollars “not to

8a.

‘say where I had left them”. The inspectors then re-

layed this information to the Special Agent in charge

of Customs in the El Paso area, who in turn alerted

the other Special oe

- About an hour ates Fred Daniels and Semple en- -

tered the. United States, the alerted agent$ observed.

Frank Daniels, Fred’s brother, and another: person

_ driving south toward Mexico in Frank’s ‘light blue

Volkswagen bus. At 10:30 agents dispatched to Juarez,

Mexico, saw Frieda Daniels Edwards, sister of Fred

and Frank Daniels, accompanied by a pagsenger, driv-.

ing her dark blue Volkswagen sedan with a large lug-

_gage carrier on: top. She was leaving the Las Vegas

Motel in Juarez. The carrier appeared to be loaded

and was covered with a green tarpaulin. Two men in

Frank Daniels’s light blue Volkswagen bus were fol-

lowing Frieda’s car. Both vehicles stopped at the La-

Cuesta Restaurant in Juarez. A few minutes later the

agents saw Frieda leave the restaurant in her car,

but it no longer had the luggage carrier on top. Still

‘without her luggage carrier, Frieda entered, the United.

States at the Santa Fe reniaor Bridge in El Paso at

ne

agents attempted to fodow Frank Daniels’s bus,

but soon lost sight of it. At 3:00, however, the Agents -

_ spotted it at the Maxfim Restaurant in Juarez. A few

. minutes later they observed the bus leave the restau-

rant and drive across the street to the Riviera Motel.

There the. agents also observed’ a white-over-beige |

Volkswagen bus, later determined to bélong to Craig

Warner and occupied-by Warner and April Covey.

9a

At 4:45 Frank Daniels, Fred Daniels, and Michael

_ Young left the Riviera Motel in Frank Daniels’s bus

and went next door to the Cafe Monumental. They

went inside the cafe and seated themselves .at a table

at which Bert Semple, Sam Kranzthor, and Michael

Jacobson were already sitting. As the agents sat out-

side the cafe, they noticed a 1966 white Chevrolet pick-

up truck, Texas license number 8H-3353, parked in the

parking lot. Soon Frank Daniels walked out of the cafe,

looked inside the white pickup truck, and then walked

away.

Neither Craig Warner nor “April Covey actually at-

tended the Cafe Monumental meeting. But their Volks-

wagen bus.was at the adjacent. hotel. Moreover,

" Covey’s German Shepherd dog, “Steppenwolf” was at

the cafe.

In a short while Steppenwolf came trotting up to |

the agents. As they were feeding the dog, Jacobson .

came out of the restaurant, said that the dog “belongs

to a friend of mine”, and took him inside the cafe.

Within a few more minutes all six men left the cafe.

Again, as in the cars, they paired off. Jacobson and

‘Young walked with the dog back to the Riviera Motel.

Semple and Kranzthor got in the white Chevrolet pick-

up truck and drove. off. Fred and Frank Daniels got

in Frank’s light blue Volkswagen bus and drove. back

to the Riviera Motel. 7

At 6:00, just as it was getting dark, the agents ob-

served Frank Daniels’s: bus leave the motel. Close be-

hind it was Warner’ s white-over-béige Volkswagen bus

Se Sara:

and J acobson’ Ss. ‘white-over-dark- blue Volkswagen: bus.

Other than the fact that there were two persons in

each bys, the agents could not identify the occupants.

The Government argues, however, that it is reasonable

to infer that the two. occupants of each bus were the |

Same persons who had been seen in them earlier in

the day and who turned up in them later that night;

in other words, Fred and Frank ‘Daniels were in

Frank’s bus, April Covey and Warner in. Warner’ s‘ bus,

and Young and Jacobson in Jacobson’s bus,

The heden left Juarez in a 1 southeasterly’ direction.

They all stopped while one got gasoline. They proceed--

.€d in tandem down the: Mexican highway toward Tres *”

‘ Jacales until they encountered the white pickup ‘truck

coming toward them in the opposite direction. ‘The ©

highway parallels the International Boundary between .

' the United States and Mexico. The-truck did not appear |

to be loaded. At the point of their encountér with the

’ truck, at the village of El Millon, the buses made U-

turns’ and followed the truck up a road into an area

of sand hills. The four vehicles parked on a hill above

the level of the road for about twenty minutes. The

Government argues that.it was during this rendezvous

_ that the defendants transferred from the. buses to the

truck the marihuana later found in the truck on the

American side of the border.

When the vehicles finally came. back ak the hill,

the white pickup truck’ went southeast and the three

buses northwest, back toward Juarez. Because it was

dark and: the agents were some distance from the ve- |

hicles, they could not tell whether the truck was then

loaded. -

‘lta

In any event, the agents followed the Warner and

Jacobson buses back to the Riviera Motel in J uarez.

There the agents watched the occupants of the two

buses take some things out of their buses, straighten

out the inside, and then re-load the vehicles. At 8:50

‘the Warner and Jacobson buses left the Riviera Motel. :

The agents attempted to follow them, but lost the

Warner bus when it made a U-turn in the middle of

traffic. They were able to follow the Jacobson bus to

the Cordova Bridge, where, after a brief inspection,

it entered the United States. At that point the agents

‘could. see that the occupants in the bus were two men.

Upon crossing the bridge, the J acobson bus drove to the’

_ Papagayo Motel just outside El Paso. There the

bus drove into the parking lot-and stopped next to a

public telephone booth. The. Warner bus, which had

eluded. the agents in Juarez, was already parked at .

_ the same’spot. The agents maintained surveillance of

the two buses until-about 10:25. At no time during that

interval did tHe. occupants. of the two buses (Warner

and Covey; Ygung and Jacobson) ever leavé¢ their ve-

—— pinion fos sat — |

At 7:30 agents posted at the Ysleta Bridge saw Frank

Daniels’s light blue Volkswagen bus cross over into

the’ United States. Although the agents ‘could not see

the driver of the bus, they identified the passenger

_as Fred Daniels. Other agents’ followed the bus to the

. home of Frank Daniels’ s girl fried (so it appears from _

. the record). There the agents observed ‘the bus parked

in fxont of the house and Frank Daniels standing on

"the porch. By the time the agents had circled the block,

the bus was-gone. They soon saw it, however, heading

riorthwest towdrd Frank Daniels’s s house outside El

~

12a

Paso. When- the agents arrived at the Daniels house,

they found Frank Daniels’s bus parked in the drive-

way. Sam Kranzthor was standing next to the bus, .

- apparently starting to get in. In the road in front of

the house e the white pickup truck was oni!

After the rendezvous of the three: buses and the white

pickup truck in the area of the sand. hills, the Special

_ Agent in charge posted lookouts at each of the bridges

in the El] Paso area. The white pickup truck was last

seen in Mexico shortly after 7:00 p.m. as it headed

‘ southeast on Mexican Highway 2. It was next seen at

_ 8:55 on the American side of the border going north- |

west — the opposite direction — on Interstate Highway

10. The Special Agent in charge testified that the truck

did not cross at either of the bridges southeast ‘of Juar-

ez, the direction in which it was last seen heading ‘in

Mexico. The*record indicates, however, that the Rio

Grande can be easily forded in that area; “indeed, many

‘automobile tire tracks line the dry creek bed. There-

fore, the Government argues, it is reasonable to infer

' that the truck’ drove south of.the last bridges in the

FE] Paso area, crossed the river, made a U-turn, and

héaded back toward E] Paso.:

Following the truck as it drove back toward El Paso,

the agents noticed that the truck appeared to be heavi- —

ly loaded. A green tarpaulin covered the objects. that

were heaped in. the back of the truck. As the truck

reached El Paso, one of the agents was able to identify . |

Sam’ Kranzthor as one of the two occupants of

the truck. The agents. continued to follow the truck

as it drove er EI Paso paca toward Frank Dan-

iels’s house.. :

Ce Pn he ae en we SF ed tir

Ba me” ge

4

.

Agent Kessler was the first agent to arrive at the

Daniels house. As noted above, he found Kranzthor

standing in the driveway next to Frank Daniels’s bus.

-- The white pickup truck was parked in the road in front

of the house. As Agent Kessler placed Kranzthor under

arrest, someone fired a shot from the vicinity of the

truck. Just as the othér agents arrived on the scene,

the truck backed up and sped away from the house.

Four more shots were fired. The agents quickly found

the truck a short distance down the road; it had be-

come mired in the sand, and the driver had abandoned

it. The door was open and on the seat was a clear

plastic bag containing marihuana. The agents

searched the area for the driver of the truck, but found

noone. | a

They then looked into the back end of the truck and

. discovered 800 pounds of marihuana contained in eight

-burlap bags and a number of. suitcases, duffel bags,

and footlockers. The burlap bags bore markings in-

dicating that they had been manufactured in Mexico.

-The suitcases ahd footlockers were sitting in Frieda

Edwards’s luggage carrier, which had been placed on

top of the burlap bags. The marihuana was packed

in the form of bricks; some of the bricks were wrapped

in clear plastic bags. The entire load was secured by

pieces of synthetic cord and covered with a green tar-

paulin. Inside the truck the agents found Bert Semple’s

driver’s license, a letter from Kranzthor to Rodolfo

Vasquez, some Mexican matches and cigarette papers,

balance scales marked in kilograms, some men’s and

women’s clothing, and Bible belonging to Fred Daniels.

- 14a ‘

As soon as Kranzthor was arrested and the truck

containing the marihuana seized; the Special Agent

__ in charge instructed his other agents to arrest the sus-

pected conspirators. At 10:25 therefore the agents

maintaining surveillance at the Papagayo Motel

moved in on the occupants of the Warner and J acobson

- buses. Agent Robinson arrested Warner and Covey<as °

they sat in Warner’s bus. The agent searched Warner

and found pieces of paper on which were written the.

former address of the Daniels brothers and their tele-

phone number. Inside the Warner bus the agents found

some camping equipment and. clothing, Steppenwolf,

the dog they had fed earlier, marihuana © Sweepings,

. a bill for accommodations for two persons from March

13 to March 15 at a motel in Uruapan, Mexico, a bill

for repair work done on Warner’s bus at Uruapan on

March 15, another bill for car repairs at Zacatecas,

Mexico, on March 17, an envelope addressed to Warner

in caré of Frank Daniels at’ Frank’s. former residence

in El Paso, and a receipt indicating that in Guadala-

jara on March 10 Covey alr iy $510 for Mexican

pesos.

Agent Morgan arrested Young and Jacébson as they

‘sSat*in Jacobson’s bus. In Jacobson’ s wallet the agents .

found cards on which were written the telephone num-

bers of Frank Daniels and Frieda Edwards. Inside Ja-

cobson’s bus the agents found camping equipment and

clothing, Mexican tequila, a car repair bill from Urua-

pan, Mexico, dated March 15, a receipt for the ex-

change of $800 at Uruapan dated March 10, and a large

_ quantity of empty clear plastic bags identical to those

discovered in the back of the white pickup truck.

LAYETTE NEM TEETER PETE RENNIE LRT

er

PEE en PEN LER ION. i VOPR) SP x ma a Ke a

Di eae a rete

15a

Following their ‘capture of the white pickup truck,

the agents returned to Frank Daniels’s house, where

they ‘observed Fred Daniels, Frank Daniels, and

Frank’s girl friend get in Frank’s bus and start to drive

away. The agents quickly halted the bus and arrested

‘the three occupants. Shortly thereafter, the agents

spotted Frieda Edwards sitting in her Volkswagen se-

dan approximately a block north of Frank Daniels’s

house. She was arrested and taken to the Daniels .

house. There the Special Agent in charge administered

the prescribed Miranda warnings to the four persons

in custody. A search of Fred ‘Daniels clothing revealed

‘marihuana: sweepings. In Frank Daniels’s jacket the

agents found a set of keys that fitted the locks on the

footlockers full of marihuana found in the back of the |

white pickup truck. A search of Frieda Edwards’s

Volkswagen sedan disclosed some pieces of cord iden-

tical to those used to secure the marihuana in the back '

of the white pickup truck. In Edwards’s car the agents

also found a car repair bill from Uruapan, Mexico,

‘ dated March 15. The bill was issued to a “Sr. Frecé .

Daniels.”

‘Taken together, the car repair bills, motel bill, and

money exchange receipts indicate that Warner, Covey,

Jacobson, and Fred Daniels were all in Uruapan, Mexi-.

co, on March 15. At the trial Governments agents testi-

fied that marihuana grows in prolific quantities in the

area around Uruapan. In March 1969 the price of mari-

huana there was about ten dollars a pound; the price

in the United States at the same time was. about ninety

‘or-one hundred dollars a, pound. On the basis of this.

evidence the Government argues that the above named _—

appellants drove to Uruapan, purchased’ the 800 pounds

16a

of marihuana, and brought it back to Juarez, where

they transferred it on the evening of March 18 to the

_ white pickup truck to be driven across the border.

Later investigation disclosed the fact ‘that the white

pickup truck belonged to Rodolfo Vasquez. At the trial

Vasquez testified that he lent the truck to Kranzthor

on the day before the events here described. The agents

also learned that Kranzthor owned a Tripacer single- _

engine airplane and that he had flown the airplane »

to various places in Mexico in early March. Searches

of Kranzthor’s clothing and the floor of ‘the airplane

revealed marihuana sweepings. :

The appellants argué that the evidence recited here

in some detail is insufficient to establish that they con-

spired to import marihuana into the United States con-

trary to law and that they committed any overt acts :

in furtherance of the conspiracy. Kranzthor, who was

convicted of the substantive offense of illegal importa-

- tion, also argues that the Government ‘failed to prove

beyond a reasonable doubt that the marihuana was

in fact imported and that he imported it. The gist of

_Kranzthor’s argument is that the Government’s evi-

dence leaves unaccounted for an hour and forty-five

minutes between the time agents in Mexico last saw

the white pickup truck and the time agents in the Unit-

ed States first observed the truck on the evening of

March 18; during that time period unknown persons

could have loaded the marihuana on the truck in the

United States. Moreover, the’ only evidence indicating

that Kranzthor imported the marihuana is that he was

once seen riding in the loaded truck on the American

\ .

é

17a

s

side of the border, ‘and as a matter of law his mere

presence in the truck is insufficient evidence.

a

We deal first with the -appellants’ common conten-

tions. The essential elements of the federal crime of

conspiracy, 18 U.S.C. § 371, are an agreement by two

or more persons to combine efforts for an illegal pur-_

- pose and an overt act by one in furtherance of the

agreement. United States -v. Falcone, 1940, 311 U,S.

205, 210, 61 S.Ct. 204, 85 L.Ed. 128, 132; Roberts v. Unit-

ed States, 5 Cir. 1969; 416 F.2d.1216, 1220; Nelson v.

United States, 5 Cir. 1969, 415 F.2d 483, 485; Kirsch-

baum v. United States, 8 Cir. 1969, 407 F.2d 562, 565:

Since a conspiracy by its very nature is born and

clothed in secrecy, the first element of the offense —

agreement — is seldom susceptible of. direct proof.

Proof of the agreement or common purpose therefore

must rest upon inferences drawn from.relevant and

competent circumstantial évidence — ordinarily, the

acts and conduct of the conspirators themselves. Unit-

ed States v. Varelli, 7 Cir.:1969, 407 F.2d 735, 741; Miller

v.. United States, 9 Cir. 1967, 382 F.2d 583, 586; Rodri-

quez v. United States, 5 Cir. 1967, 373 F.2d 17, 18; ; Jor-

dan v. United States, 10 Cir. 1966, 370 F.2d 126, 128;

Dennis v. United States, 10 Cir. 1962, 302. F.2d 5, 11.

Once the existence of the agreement or common

scheme of conspiracy is shown, however, “slight evi-

dence” is all that is required to connect a particular

defendant with the conspiracy. United States v. Jones,

9 Cir. 1970, 425 F.2d 1048, 1951; United States v. Knight, |

9 Cir. 1969, 416 F.2d 1181, 1184; Lopez v. United States,

18a

5 Cir. 1969, 414 F.2d 909, 911. And once it is shown

. that a particular defendant’ joined the conspiracy, the

acts of his co-conspirators done ‘in furtherance of the .

‘conspiracy’are attributable to him and he becomes

equally liable for them. Grimes v. United States, 5.

Cir. 1967, 379 F.2d 791, 795; Hernandez v. United itd

9 Cir. 1962, 300 F.2d 114, 121. ee

With these principles in mind, we hold that from

the evidence presented a reasonably-minded jury

could conclude beyond a reasonable doubt that the de«

fendants entered into a common scheme to “import

marihuana into the United States contrary to law and

that the overt acts proved were in furtherance of that

scheme.

In response. to’ Kranzthor’s individual -‘contentions,

the Government argues that the evidence is sufficient

to allow the jury to conclude beyond_a reasonable doubt

that the marihuana was in fact imported and that -

Kranzthor imported it. First, the evidence showed that

in early March 1969 at least Warner, Covey, Jacobson,

and Fred Daniels drove to Uruapan, Mexico, where

marihuana is known to grow. abundantly. While still —

in the interior of Mexico -but shortly before returning

to the United States, Covey and J acobson exchanged

over $1,300 for Mexican- pesos. Inside their vehicles,

however, the Customs agents found camping gear and

an inexpensive motel bill, which, the Government ar-_

gues, indicates that the travelers were living frugally.

Moreover, the only significant purchase found in any *

of the vehicles was the 800 pounds of marihuana. That -

quantity of marihuana would have cost $8,000 in Urua-

pan, #00, 000 in the United States. —

Peres = 19a

Second, there was the evidence of Frieda Edwards’s

' luggage \carrier. On the morning of March 18 agents

in Mexcg had observed Frieda driving her Volkswag- ~

an with the luggage carrier on top; the luggage

rrier was then loaded, but with what the agents could

not tell. While still in Mexico, the luggage carrier dis-

‘appeared; Frieda crossed the border in the early af-

ternoon without it. The agents next saw the luggage

carrier.late that night in the ‘back of the white pick-up

truck. The luggage carrier was then — with 230

| pounds of marihuana. 7

« Third, the evidence concerning the route taken. by

the white pickup truck on the evening of March 8

"seems inconsistent with the hypothesis of innocence.

Agents in Mexico last saw the truck on Mexican High-

- way 2 heading southeast, away from Juarez. The truck

did not pass through either of the ports of entry just

southeast of Juarez. The evidence revealed, however, —

that ‘the Rio Grande in-:that area is often a dry creek

bed, which cars and trucks can easily cross. Agents

in the United States spotted the truck approximately —

. one ‘hour and forty-five-minutes after it had last been

_ seen in Mexico. At that time it was still southeast of .

FE] Paso-Juarez; however, it was then heading north-.

west, back toward El Paso. In contrast to its appear-

ance earlier in the day,.it was then heavily loaded. The

agents followed the truck ‘to the Daniels residence

north of El Paso where they found 800 pounds of mari- |

huana in the back of the truck. The Government argues

that a truck not carrying contraband would not have

taken that circuitous route but would have crossed the »

border ‘at the most convenient point, either-the er

or Ysleta agi of entry. res

"

Seeuiaad Siapiepmieaadcimanmmastonnmasemer ae ansrenrtnovidnenatinasesuis setae libanica icine

, = f)

LANG OND TOIT ELT NOI NT NESTED ASL STON OS. BARI te OANA rem,

° .

‘ 20a

Finally, the ‘Government argues that the physical

condition of the marihuana and the items seized with

- the marihuana indicate its foreign origin. Eight hun-

dred pounds is — in this country — a large and expen-

Sive quantity of marihuana. Government witnesses.tes- _

tified that they had never seen or heard of a field of

marihuana on the American side of the border capable

_ of ptoducing that much marihuana. We have already

- noted the vastly cheaper price of that much marihuana

in Mexico.: Most of the marihuana was packed in

. bricks, a form in which marihuana-is frequently smug-

gled into this country. Some of the marihuana was

contained in burlap bags, the markings on which in- -

dicate that they had been manufactured in Mexico.

The balance scales found in the back of the truck,were .

marked off in kilograms rather than pounds, the analo- -

gous American unit. ;

To establish that Kranzthor had illegally imported

the marihuana, the Government proved that on the

day before the events in question Kranzthor borrowed

the white pickup truck from Rodolfo Vasquez. On

March 18 agents in Mexico observed Kranzthor meet

with Bert Semple, Jacobson, Young, Fred Daniels, and

Frank Daniels at the Cafe Monumental. When the

meeting broke up, Kranzthor got in the truck with Sem-

ple and drove away. About one hour and forty-five min-

utes after the truck was last seen in Mexico, agents

observed Kranzthor riding in the truck on the Ameri-

can side of the border. The truck was heavily loaded.

The agents followed the truck to Frank Daniels’s house

where they arrested Kranzthor. A search of the truck

which Kranztho1 had procured and in which he was

‘ 2la. | 7

. seen riding revealed 800 pounds of marihuana. When

added to the circumstances indicating illegal importa-

_ tion of the marihuana, the Government argues, this

-evidence is sufficient to allow a jury to conclude be-

_. yond a reasonable doubt that Kranzthor imported it.

_

~

As we indicated at the outset of this opinion, in a

criminal case in which the jury has rendered a verdict

of guilty, the appellate court must sustain that verdict

if there is substantial evidence, taking the view most

favorable to the Government, to support it. See Glasser’

v. United States, 1942, 315 U. S. 60,:62 S.Ct. 457, 86

L.Ed. 689.-This rmeans that we must accept as_estab-

lished all reasonable inferences that tend to support

the action of the’jury, and any conflicts in the evidence

must be resolved in favor of the jury verdict. Gordon

v. United States, 5 Cir. 1971, F.2d _—[No. 25,973,

January 13, 1971]; United States v. Francisce; 8 Cir.

1969, 410 F.2d 1283, 1288. We hold therefore that from

the evidence presented a reasonably-minded jury ,

could conclude beyond a reasonable doubt that the ,°

marihuana ‘in this case was imported and that Kranz-

thor: imported it. In other words, reasqnable minds

could conclude that the Government’s evidence is in-

consistent with the hypothesis of Kranzthor’s_ in-

nocence. See United States v. Andrews, 5 Cir. 1970,

- 427 F.2d 539, 540; Surrett v. United States,'5 Cir. 1970,

421 F.2d 403, 405. .

TIL

The appellants next contend that the district court

. should have suppressed all evidence taken from them

_

>

~2

: 22a.

and their vehicles for the reason that their indi idual

_ arrests, searches, and the searches of their vehicles.

were without warrants or probable cause in violation |

‘of the Fourth Amendment. It is undisputed that at the -

- time of their arrests and the searches of their vehicles

_ the Customs ager.ts had neither an arrest warrant’nor

i search warrant.-We hold, old, however, that’ the evidence

taken from them and their» vehicles was properly ad- -

mitted as the fruits of valid border searches.

Recognizing the peculiar and difficult problems in-

volved in effectively policing our extensive, national

boundaries; Congress. has granted Customs officials

broad authority to stop and search any person or ve-

hicle suspected of carrying merchandise illegally im- -

ported into the United States and to seize any mer-

chandise that the officials have reasonable Cause to

believe to have been illegally imported. 18 USC.

§ 482. See United States v. Glaziou, 2 Cir. 1968, 402.

F.2d 8, 12; Thomas v. United States, 5 Cir. 1967, 372.

F.2d 252, 254; King: v. United States, 9 Cir. 1965, 348

F.2d. 814, 816-18. Federal courts have unanimously in-

terpreted this Congressional grant-to mean that Cus- ©

toms agents may stop a person and conduct a “border

search” without first procuring a search warrant or,-—.

even having probable cause to believe that the. person

has committed a crime. In the parlarice: of these de-

cisions, the agents’ “mere suspicion” of possible’ il-

legal activity is- enough cause to justify a border

search. E.g., United States v. Hill,.5 Cir. 1970, 430 F.2d

129, 130-131; United States v. Glaziou, supra; Morales

v. United States, 5 Cir. 1967, 378 F.2d 187, 189; Alexan- -

“der v. United States, 9 Cir. 1966, 362 F2d 379.

~_, a.

23a

382. Border searches are of course not exempt from

the Fourth Amendment requirement that searches and

seizures be reasonable. United. States v. Glaziou, su-

' pra; United States v. McGlone, 4 Cir. 1968, 394 F.2d

75, 77; Marsh v:. United States, 5 Cir. 1965, 344 F.2d

were 2 324. See also Note, Border Searches and the Fourth

-Amendiment, 77 Yale L. ¥. 1007 (1968); ALI, A Model

‘Code of Pre;Arraignment: Procedure § 55 6.02 (Tent.

Draft No. 3, April 24, 1970). Yet what is reasonable

within the meaning of the Fourth Amendment must

depend upon the facts end circumstances of the par-

ticular case. Cooper -v. California, 1967, 386 U.S. 58,

59, 87 S.Ct. 788, 790, 17 L.Ed.2d 730; United States v.

Glaziou, supra; United States v. ~McGlone, supra. And -

a- border r_search is not unreasonable simply because

it is made without probable cause. Marsh v. United

~, States, supra. Indeed, many searches that would be

unreasonable if conducted by police officers in the or- _

dinary case are nevertheless reasonable if conducted ©

by. Customs agents in lawful pursuit of illegal imports.

See Thomas v. United States, — Alexander v-EMTit-

- éd States, supra. |

. Not only is the Customs agents’ right to conduct a

border. search -broad, but also the term “borde~” is

itself elastic. United States v. Glaziou, supra; Marsh

v. United States, supra. The “border” includes not only

> the actual border crossing points but also a reasonable _

extended .geographic area in the immediate vicinity

of" ‘the crossing point.. United States v. Glaziou, supra, —

The “right to arrest by Customs’ agents doesn’t cease

simply because the suspect may get his foot across

on this side of bridge... . it extends to the immediate

24a

é

; ~~

area.” Marsh v. United States, supra. Moreover, sim-

ply because Customs agents inspected a person or his |

- vehicle at the crossing point does not mean that they

may not conduct a second border search within the *

immediate vicinity of the crossing point: a person is

not immune from further examination by Customs ‘a-

gents “merely because he ‘may momentarily escape

detection and pass safely through the first Custom’s

check.’ ” Thomas v. United States, supra; see ‘also Mo-

yales v. United States, supra. On the other hand, the

’ Supreme Court long ago recognized that once a travel-

er’s entry into the country becomes complete, he is

entitled to the complete protection of the ‘Fourth A-

mendment: ? |

those lawfully within the country,..entitled to

use the public highways, have.a right to free

passage’ without interruption or search unless

there is known to a competent official, author-

ized to search, probable cause for believing

‘that their vehicles are carrying contraband or

illegal merchandise.

Carroll v. United States, 1925, 267 U.S." 132, 154, 45 S.Ct.

280, 285, 69 L.Ed. 543; see also’ Thomas v. United States,

supra; Marsh v. United States, supra: Therefore when

Customs agents choose to conduct.a border search out- -

side the immediate vicinity of a border crossing point,

the legality. of the search will usually depend upon i

such factors as the distance of the’ search from the. -

crossing point, the time elapsed since crossing, and the.

circumstances upon which the agents base their sus-

e -

¥

7 J

:

LEE POLE LAT MT LIN PLT LIS TI

25a‘

picions. McGlone v: United States, supra; Alexander v.

United States, supra; Marsh v. United States, supra.

We have already recited in some detail the surveil-

lance activities of the El Paso area Customs agents

on March 18, 1969.. From this evidence we conclude —

‘that by late that evening the agents had reasonable

cause to -suspect that the appellants, their vehicles,

‘and the white pickup truck might be in possession of

merchandise that had been imported into the United

States contrary to law.-A border search was clearly

in order. We further hold that the agents acted reason-

ably in following the appellants in their vehicles to

their respective destinations in the El Paso area and

there searching their persons and their vehicles for

contraband. It necessarily follows then that the district

-court did not err in denying the appellants’ motion

to suppress the evidence:

Since we -haye cencluded that the evidence ‘taken

from the se A and their vehicles was properly

admitted as the fruits of a valid border search, we

need not decide whether the evidence might also be

admissible as the products of searches incident to law-

ful arrests, and we express no _— on that issue.

IV.

The appellants’ final argument is that the statute

under which they were charged, 21 U.S.C. § 176a, ‘is

unconstitutional for the reason that the declaration and

invoicing requirements violate the appellants’ Fifth A-.~

mendment privilege against self-incrimination.

26a

This Court has recently considered this issue in Wal-

den. v. United States, 5 Cir. 1969, 417 F.2d 698. There

we held in. the face of a similar contention that the

declaration and invoicing requirements of the statute

were not unconstitutional. The Ninth Circuit has

reached the same conclusion. See United States v. A-

vey, 9 Cir: 1970; 428 F.2d 1159, 1160; United States v.

Vansant, 9 Cir. 1970,.423 F.2d 620. Moreover, we have

reaffirmed our. decision in Walden on at least four. dif-

ferent occasions: See United States v. Johnson, 5 Cir.

- 1971, F.2d [No. 29,471, March 16, 1971]; Unit-

ed States v. Hudson, 5 Cir. 1970, 431 F.2d 468, 469: Unit-—

‘ed States v. Candanoza, 5 Cir. 1970, 431 F.2d 421, 423-24-

United States vy. Houle, 5 Cir. 1970, 428 F.2d 816, 818.

‘Therefore: for the reasons set out above, we AF-

‘ FIRM the judgment c of the district court. 3

27a

APPENDIX B:

_IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 29505

UNITED STATES OF AMERICA,

Plaintiff-Appellee, ©

‘versus .

CRAIG WARNER, APRIL COVEY, SAMUEL L.

KRANZTHOR, FRED W. DANIELS, JR., FRIEDA

__E. EDWARDS, FRANK DANIELS and

MICHAEL A. JACOBSON,

a _ Defendants-Appellants.

Appeals from the United States District Court for the:

Western District of Texas

ON PETITION FOR REHEARING “AND PETITION.

FOR REHEARING EN BANC .

(Opinion Apr. 8, 1971, 5 Cir., Ric —— ners

“(May 10, 1971)

28a

Before. WISDOM, THORNBERRY, and DYER, |

| Circuit Judges. |

PER CURIAM: The Petition for Rehearing is DE- |

NIED and no member of this panel nor J udge in regu- .

lar active service on the Court having requested that -

the Court be polled on rehearing en banc, (Rule 35

Federal Rules of Appellate Procedure; Local Fifth Cir-

cuit Rule 12) the Petition for Rehearing En Banc is

DENIED. _— :

®

APPENDIX C

wee: pee

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

- October Term, 1970 7

No. 29505

_ D.C. Docket No. EP-69-CR-724

_ UNITED STATES OF AMERICA,

ve Plaintiff-Appellee, .

versus

CRAIG WARNER, APRIL COVEY, SAMUEL L.

KRANZTHOR, FRED wW. DANIELS, JR., FRIEDA E.

_ EDWARDS, FRANK DANIELS and:

MICHAEL A. JACOBSON,

Defendants-Appellants. :

o—_

29a

Appeal from the United States District en for the

‘Western weigac’y of ——

é

Before WISDOM, THORNBERRY, and DYER,

ner J udges. ©

JUDGMENT

This cause. came on to be heard on the transcript

of the record from.the United States District Court

for the Western District of Texas, and was argued: by

counsel;

ON CONSIDERATION WHEREOF, It is now here.

ordered and adjudged by this Court.that the judgment

of the said District Court: in this cause be; and the

‘same is hereby, affirmed;

It is further ordered that defendants- appellants pay

to plaintiff-appellee, the costs on appeal to’ be taxed

. by the Clerk of this Court. :

Issued As Mandate: April 8, 1971 eae? |