Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Castro

February 16, 1971


Kerner, Pell and Stevens, Circuit Judges.

Author: Stevens

STEVENS, Circuit Judge.

In response to a call from a courier who had obtained his name and telephone number from a Mexican resident named Espinoza, defendant brought a truck to a motel near Kenosha, Wisconsin, and picked up two 20-pound bags containing marihuana.*fn1 When arrested, he had in his possession Espinoza's telephone number in Nuevo Laredo, Mexico, which the courier had just called and a receipt for a Western Union money order addressed to Espinoza's brother in Nuevo Laredo. Defendant was convicted of receiving marihuana knowing it to have been brought into the United States contrary to law. 21 U.S.C. § 176a.

The sufficiency of the evidence is not questioned. The government placed no reliance on the statutory presumption of guilt arising from proof of possession of marihuana. We, therefore, are not faced with the problem of how much, if any, of that presumption has survived Leary v. United States, 395 U.S. 6, 29-54, 89 S. Ct. 1532, 23 L. Ed. 2d 57.*fn2 The questions which appellant does raise are (1) whether 21 U.S.C. § 176a is invalid because it requires the accused to incriminate himself; (2) whether the indictment was defective; (3) whether the instructions to the jury were adequate; and (4) whether inadmissible evidence was received. We find no error in the proceedings.


Appellant argues that an element of the offense prohibited by § 176a is that the marihuana has been imported "contrary to law." Apart from § 176a, at the time of appellant's arrest there was no statute which prohibited the importation of marihuana.*fn3 The Marihuana Tax Act*fn4 prohibited transfers of marihuana by persons who had not complied with its occupation and transfer tax provisions. Accordingly, appellant argues, the "contrary to law" phrase in § 176a requires the prosecution to prove a failure to comply with those provisions. But, the argument continues, compliance with the tax provisions would have required appellant to incriminate himself and, therefore, under the rationale of Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 and related cases,*fn5 the Fifth Amendment protects him from prosecution for failing to perform an incriminatory act.

There are two answers to this argument. First, appellant was not convicted of illegal importation; he was convicted of receiving marihuana which had been imported by someone else. Even if the importer could not be prosecuted for failing to comply with the Marihuana Tax Act because compliance would have forced the importer to incriminate himself, appellant's conviction does not rest on his failure to obey a statute which required him to perform an incriminatory act. See 395 U.S. at 28, 89 S. Ct. 1532, 23 L. Ed. 2d 57. An importer's Fifth Amendment privilege against self-incrimination does not protect his customers from prosecution.

Second, the words "contrary to law" do not necessarily refer to the Marihuana Tax Act. The government suggests that they could also contemplate violation of customs requirements applicable to general merchandise which must be declared and invoiced before entry into the United States.*fn6 However, we need not go beyond the text of § 176a itself. See Thomas v. United States, 314 F.2d 936, 938 (5th Cir. 1963) cert. denied 375 U.S. 849, 84 S. Ct. 105, 11 L. Ed. 2d 76; but see United States of America v. Garrison, Wertheim & Goldman, 308 F. Supp. 419 (S.D.N.Y.1969). As already noted, the section proscribes both smuggling marihuana and the receipt of previously smuggled marihuana. The prohibition against the receipt of "such marihuana" encompasses "marihuana which should have been invoiced."*fn7 The statute quite plainly indicates that it is unlawful to receive marihuana knowing that it was not invoiced when imported. Thus, entirely apart from the Marihuana Tax Act, appellant's receipt of the marihuana was prohibited by § 176a.*fn8

His conviction rests on his voluntary performance of an unlawful act; it is not predicated on his failure to perform an incriminatory act. His Fifth Amendment privilege was not violated.


In his attack on the indictment appellant complains of the failure to provide him with an explanation of the words "contrary to law." He relies on Keck v. United States, 172 U.S. 434, 19 S. Ct. 254, 43 L. Ed. 505, in which an indictment which charged importation of diamonds "contrary to law" was held insufficient for not informing the accused of the statutory provision which was violated by the importation. In that case the charge could not be understood without reference to statutes which were not identified in the indictment. Accordingly, the government conceded that the accused was not fully informed of the nature of his alleged offense. See 172 U.S. at 437, 19 S. Ct. 254.

In the present case, however, the indictment plainly stated that the misconduct charged against appellant was "* * * all in violation of § 176a."*fn9 As indicated in our discussion of appellant's Fifth Amendment contention, his conviction was predicated solely on § 176a. No other statutory violation was charged or proved. The indictment fairly informed the accused of the charge he was required to meet and created no danger of subsequent prosecution for the same conduct. Moreover, in response to pre-trial motions attacking the sufficiency of the indictment, the trial judge informed the defendant that he would not be required to meet any charge of violation of any statute except § 176a.*fn10 The indictment was sufficient. See Rule 7(c) F.R.Crim.P.


Appellant contends that the court failed to instruct the jury on all essential elements of the crime. Specifically, he complains that the court erroneously refused a tendered instruction on "intent to defraud"; that he failed to explain the requirement that the marihuana was imported "contrary to law"; and that the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.