Appendix — Almeida-Sanchez v. United States

ue Court of the United States

OCTOBER TERM, 1971

No. 71-6278

CONDRADO ALMEIDA-SANCHEZ,

Petitioner,

—

Unt STATES OF AMERICA

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

INDEX

LOE. EEL TTT

of transcript of June 24, 1970 and June 25, 1970

Incorporation of denial of motion to suppress from

a be Court of Appeals

t of Court of Appeals

of the Court of Appeals re: petition for rehearing

ad suggestion for rehearing in

C

Sk 888

Ps STATES DISTRICT COURT

v8.

CoNRADO ALMEIDA-SANCHEZ

Comspiracy to Smugg Mari; Transport Mari

: 2 cts

PROCEEDINGS

Ent ord and fid Ind. JS-2

Bond Fixed at $10,000 (CORP) (CASH); ent ord

bail reduced to $5000 C/S.

Fid deft’s affid and ord apptg Classen Gramm atty.

Fid deft’s order apptg counsel James A. Chanoux

atty. It is further ordered that the atty Classen

Gramm is releived of further responsibility.

Arr T/N and plea NG; set for O.H. for 5-28-70 at

I 10am before Mag. (8)

© O. Ent ord trial call 6-19-70 at 9am. (HARRIS)

Ent ord jury trial trf to Judge Hill’ (T)

* nes 8 0 5 DIN GS

JURY TRIAL—Jurors impaneled & sworn. Swore

wits & fid exhibits.

FUR JURY TRIAL—Jury retires. (IRVING HILL)

(IRVING HILL)

FUR JURY TRIAL—ENT ORD MISTRIAL. Ent

ord. cont to 6-20-70 at 9:80am for trial. (IRVING

HILL)

JURY TRIAL—Jurors impaneled & sworn. Swore

wits & fid exhibits. (IRVING HILL)

FUR JURY TRIAL—Mot for J/A denied. Fid &

ent verdict Guilty; polling of jury waived; prob.

rept. waived. Ent ord comm to cust AG for 5 yrs.

impr. (IRVING HILL) J8-3 (ent 6-26-70)

Ent ord deft exhibit “B” returned to deft. Gov’t cnsl

states govt has no objection (I. HILL)

Fid “NOTICE OF APPEAL”; Fid Affidavit to pro-

eeed in Forma Pauperis; Fid Designation of Record

on Appeal. (Vera Randall)

d ORDER Permiting Appa! in Forma bann

AL“ Designation of Record on

3

e “Wid Applic. & Order for Transcript of Trial (Vera

Randall. Reptr.) (HILL).

paar ‘Fld Applic. & Order for Transcript at U.S. Expense

“of Motion 6-18-70 at ist trial (Don Cram, Reptr)

(HILL) copies to all parties. (Re: Supple. Design).

7-20-70 Fld Judgment retd executed

— Fld Original and 8 copies of Reporters Transcript of

an F

Pe Volume No. 1. ns yond eg e e

Atty James A. Chanoux.

* 4 Copy of

“hy Don Grats Copy of Reptrs.

4

"UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF CALIFORNIA

AGE: e year, a Mexican etizen-—Arrested on 4/30/70

on Hwy. 78—Glamis, Calif

S 2

UNITED STATES OF 1

V.

CoN RADO ALMEIDA-SANCHEZ

COMPLAINT FOR VIOLATION OF U.S.C. TITLE 21,

SECTION 176a

BEFORE A. D. HAWORTH, Calexico, California,

Name of Judge Address of Commissioner

The undersigned: complainant being duly sworn states:

That on or about April 30, 1970, at Highway 78, near

Glamis in the Southern District of California ®CON-

RADO ALMEIDA-SANCHEZ did Unlawfully, know-

ingly, and wilfully transport, conceal, and facilitate the

transportaiton ;

aperoniacainty, 73 kilos of, maribuans. .

And the complainant states that this complaint is based

8, 1970 US. Border Paral es 12:15 a.m. on April

Bias these may hele di are eee, ox Pot light

Ford two-door, California license KAP 052. While

eee eee ob then onbile: fee aliens, the

marihuana was found concealed. beneath the rear seat.

Insert name of accused. .

© Insert statement of the essential facts constituting the dffense

charged.

California on Wednesday, April 29, 1970.

sil Reivew and appointment of counsel set for 5-12-70.

nd the complainant further states that he believes

Sworn to before me, and subseribed in my presence,

UNITED STATES DISTRICT COURT

eee CALIFORNIA

November 1969 Grand Jury

No. 8800 Criminal '

Use STATES OF AMERICA, PLAINTIFF

A

porate pi wilfully and Inowingly id combine, con-

ae COUNT TWO

On or about April 30, 1970, within the Southern Dis-

triet of California, defendant CONRADO ALMEIDA-

SANCHEZ, with intent to defraud the United States,

into the United States contrary to law, in violation of

Title 21, United States Code, Section 176a.

8

ig THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT vat CALIFORNIA

Case No. 8800 Criminal

Pre et hcl or Anica, PLAINTIFF

v.

Cosma busen Sener DEFENDANT

Karan TRANSCRIPT OF PROCEEDINGS

* 2 (Partial) .

+ Place: San Diego, California

Date: Thursday, June 18, 1970

APPEARANCES:

For the Plaintiff;

HARRY D. STEWARD

United States Attorney

PHILLIP W. JOHNSON

Chief, Assistant United States Attorney

SHELBY GOTT

Assistant United States Attorney

For the Defendant:

JAMES A. CHANOUX

[fol. 3] .

SAN DIEGO, CALIFORNIA, THURSDAY, « “

JUNE 18, 1970, 9:30 O'CLOCK A.M.

me get a reply from Mr. Chanoux.

Les, sir, I do believe that there is

was my understanding, in talking to the United States

Attorney that was handling the case at the time, Mr.

Mic that we would make it orally in court just

prior to the trial, and that this would be acceptable to

8 fo 4 THE COURT: Well, what do you say about

MR. GOTT: I have no knowledge either way con-

cerning the agreement with Mr. Michaels. My file on the

date of May 28th does say that the omnibus hearing

form was filed, trial set for June 19th, which is tomor-

dow, and motion to be heard at time of trial, and moving

papers June 9, 1970. I have no doubt that counsel’s

representation with Mr. Michaels is correct.

9

Mr. Chanoux?

MR. CHANOUX: I do not, your Honor. I have not

had a chance to examine the Government’s instructions,

THE COURT: You may ask for Mathes and Devitt

by number. I would appreciate it if you

e a oR enen using the number

to rewrite the whole instruction. But

to have à piece of paper that we can file

MR. CHANOUX: Yes, your Honor. Could I file

[fol e THE COURT: After the noon recess.

‘MB. CHANOUX: “Aster tie ‘noon deen Thank you,

your Honor.

Hite

2 pu

me that

*

n

4

. e Mr; Almeida explains to

DEFENDANT ALMEIDA: Yes.

: Do you realize that under the agree-

for the officers personally

: All right. ‘That stipulation is accept-

have additional factual testimony that

to present, Mr. Chanoux, on this mo-

14

(Counsel, defendant and Ee

un CHANOUX: Yes. tas avid Mr.

HE Cot YA .

THE COURT: And y 8

the stand personally to testify on this one point

JJ

geton de stand personaly, and you waive that appear

**DEFENDANT ALMEIDA: Yee.

„ Very well. That stipulation is ac-

Is there now any additional “ag —.— *

. present, on: the mo}

; out explicitly... Will you so stipulate?

I a ge haar el oto

o actual evidence

.. Chanoux?

MR. CHANOUX: No, your Honor.

THE COURT: Mr. Goit?

peice

8 ij 3 225551533 ay age

14 a bali, (ab We

bein adull

5 1 fall = ite 11123151

1 HUE 124157 28%

32 a 3 = 2% 15 E

1 171 0

He 1 inl E 11720 8

bi

; allt

Imost a fortiori from Mi-

at bar seems a

*

of Title 18; and w

of Title 8 and some regulations

rovisions

at the time of Contreras, I do

some p

Appear

follow the law as

best I can distill it from

od by the higher courts as

27

qualified

of the United States

Central District of California.

the proceedings

y, June 18,

cor-

transcript is a true and

California, this 11th day of

ee ee ae

cause on Th

court

the

that

i

my stenographic notes.

Angeles,

that I am a duly appointed,

vn" 4 :

ö

12

13

oe 2

RK BAIA

IN THE UNITED STATES DISTRICT COURT

“SOUTHERN DISTRICT OF CALIFORNIA

1815

ccs S

F c *

e S

RSS ee ee

:

.

e

UNITED STATES DISTRICT COURT.

S S§OUTHERN DISTRICT OF CALIFORNIA

HONORABLE IRVING HILL, JupcE PRESIDING -

No. 8800-Criminal

UNITED STATES OF AMERICA, PLAINTIFF

v8.

-'ReporTer’s PARTIAL TRANSCRIPT OF PROCEEDINGS

San Diego, California

Wednesday, June 24, 1970

Thursday, June 25, 1970

[fol. 16] Five is the card, the Form I-151.

MR. CHANOUX: No objection, your Honor.

THE COURT: Very well, Exhibit 5 is received and

admitted in evidence without objection.

(Card previously marked Exhibit 5 for identifica-

tion received in evidence.)

MR. GOTT: I further move for Exhibit I-A and I-B,

i to the contents of the cartons marked I-A and

THE COURT: Yes.

As I understand, Mr. Shaw, the cardboard boxes that

now contain uin 1B were notin this car, inet the

contents?

THE WITNESS: No.

*

*

a

fi

(Es

in

wee 1 ES * Be 3 ~ ;

ae aie Tae: — — : ae ies nae 5 5 wa BS 8 * aia hc :

Eee 5 Sate Nee Pc wes Se * ESTE 8 Santen 8 S Siem *

20

_UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

2

APPEAL FROM THE UNITED STATES DistRicT Court

CENTRAL DISTRICT OF CALIFORNIA

Before: BROWNING, CARTER and TRASK,

Circuit Judges

D

PER CURIAM: ~~

A

Almeida-Sanchez appeals from a conviction for know-

ingly receiving, concealing and facilitating the transpor-

i

aT Sia5iiijii i 5

ee e hin

ist tae fig: iE ihe

e „ Hu

B : 151135 fii j minh a Bue

1117 gai iil 1% f ties

yes 2533 g 7 „ 1221

11110

to suspect that grounds

under this chapter

delay before the nearest available

without warrant, of the person and

cause

States

search.

officer empowered to commit persons charged with offenses

individually or as one of a class, shall have

(4) to make arrests for felonies which have been com-

mitted and which are cognizable under any law of the

i Hk

Te

process issued by an officer under any law regulating the

admission, exclusion, or expulsion of aliens.

(e) Any officer or employee of the Service authorized and

n prescribed by the Attorney Gen-

against the laws of the United States. As such employee

shall also have the power to execute any warrant or other

‘

:

i

i

2

1

b

:

3

5

2

~ “Reasonable distance. The term ‘reasonable distance,’ as used

: in section 287 (a) (3) of the Act, means within 100 air miles

R §287.1(8) (2) reads:

— 400 U.S. 990 (1971), set for reargu-

r 3 upon

authorized by a warrant issued by a judi-

tial officer. An authorized officer may stop and search

automobile on a public highway without a warrant,

owever, because a moving automobile would disappear

efore a warrant could be obtained. But, to conduct a

2

re is an exception a cause require-

t appli le to border searches” of persons and ve-

ee exception is recognized in. the following

in Carroll v. United States, supra, 267 U.S. at

Having thus established that’ contraband goods

concealed and illegally transported in an automobile

or other vehicle may be searched for without a war-

rant, we come now to consider under what circum-

See generally 77 Yale LJ. 1007 (1968); 10 Ariz. L. R. 456

88 St. Marys LJ. 87 (1971).

“4 See also Boyd v. United States, 116 U.S. 616, 623 (1886).

5 yng 7227

111 i ne

i

1 i

111

8 N 2 i

>

:

4

2:

af

Ulli

. * Decisions of the Courts of

0

2) J but

ty of a

(

legality

United States

‘States, 435 P24

standards of the

onto the rules justifying

: rules in his at-

‘United States, 410 F.2d 1206 (10th Cir. 1966). me

287.1 (a)

the

(C.A. 9 1970).

two

by the majority,

v. United

1125

i :

probable cause

ervantes)

ics cases (C

(1971); Duprez v. United

required

7 425 F.2d 1 ,

the

cases cited

86

Fumagalli

ö States v. Avey,

2d

Aeln addition to

(1970);

United

1970); U

ts that the public interest in excluding

is gr ian that in excluding nar-

. a

—

% Alexander v. King, 362 F. 24 379, 381 (9th'Cir. 1966).

5

2

0

pages EES

yall

155

7774715

f

ourth Amend-

116 U.S. 616

F

ss)

nited States,

ey

8

8

8

i 5

i

f

—

ia

*

*

mer

14

. or

“4h Hid

whether by the person

may

or by, in, or upon such vehicle . .

that persons, parcels

be searched.

‘In dert, Genplte the “broad sweep of the statute, Cu-

toms officers may conduct a search for smuggled

110 U.S.C. 5 482 reads in part:

5

;

f

f

24

r contrary to law,

sat

=] 111

- 3 > —

184381 88

lias

2333

ul ul HG

21 08 Cir, 1968): Contreras v. Utiited States,

A ele eee

0

411214130

i

’ for such action

re is no oth

ne held

: le

ay 351

ts if

v

gation

1

Porter, 1. ¥ F.2d 412, 415 (9th Cir. 1966); see also

United States 2 Oswald, 441 F.2d 44 (9th Cir. 1971).

Bit

1

Be 1

af

115

|

i

72

11

officers

believe

gEE

detection of crime. Cf. Camara v. Municipal Court,

_ supra, 387 U.S. at 530, 537. The trunk of appellant’s

automobile was not searched for evidence of appellant’s

richt to be in the United States. The officers could only

. ar 33 aliens that appellant might have been

inging into the country illegally, a crime punishable

a $2,000 fine and five years’ imprisonment. 8 U.S.C.

Camara and See require a showing that. valid pub-

e inte the particular

.

tion.“ United

(9th

i

: Hen

ae

nie

ena [a

15 iB |

8

Court in

upon the administrative

determinations. How-

is not

ae

to support the search,

High

| pong alg gata longs

alo near

care of the M

to B

about

V.

1970)

*

— — 2 2 procedures less

to support the

— Guabibindwenovaee ve: Snibde inquiries was admitted. The

_ government summarizes the stipulated testimony of the Immigra-

tion officers as follows: —

e

the government did not

e

va

*§

n Since

ty

record is

eit 111420 i

a geeks sgiaiis3

115 5

% Z 11241 sist

| 1 pit libs

21235 3273

_ UNITED: STATES COURT OF APPEALS

Fon THE NINTH, CIRCUIT

ORDERED, that the petition for re-hearing is denied

and the suggestion for a hearing in banc is rejected.

No. 71-6278

E

5

ted States

proceed

or writ

t the motion

is hereby,

> > be,

orari to the Uni

May 22, 1972

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