# Petition for A Writ of Certiorari — Warner v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1371%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for A Writ of Certiorari - **Published:** January 1, 1971 - **Citation:** 404 U.S. 829 ## Text 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 ~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? | --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385605_1371%3A1. Public record. Not legal advice.