United States v. Barnes, 24786
| Citation | 432 F.2d 89 |
| Decision Date | 08 September 1970 |
| Docket Number | 24956.,No. 24786,24786 |
| Parties | UNITED STATES of America, Appellee, v. Wellman Tufts BARNES, Appellant. UNITED STATES of America, Appellee, v. Frank KNOX, Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
G. Dennis Adams (argued), San Diego, Cal., for Frank Knox.
Alvin S. Michaelson (argued), Los Angeles, Cal., for Wellman Tufts Barnes.
Harry D. Steward, U. S. Atty., Phillip W. Johnson and Kevin J. McInerney, Ass't U. S. Attys., San Diego, Cal., for appellees.
Before HAMLEY and MERRILL, Circuit Judges, and THOMPSON, District Judge.*
Upon trial without a jury before the United States District Court for the Southern District of California, Wellman Tufts Barnes was found guilty of smuggling marihuana in violation of 21 U.S.C. § 176 (a). At a previous trial without a jury and before the same court, Frank Knox was found guilty of aiding and abetting Barnes in the smuggling of marihuana in violation of 21 U.S.C. § 176(a) and 18 U.S.C. § 2. Their respective appeals were consolidated for argument and disposition.
Both defendants assert that the trial court erred in denying their respective motions to suppress, and in receiving into evidence their incriminating statements.
On February 11, 1968, Barnes entered the United States from Mexico at Calexico, California. He was driving a Volkswagen Microbus and was accompanied by the owner of the bus, Michelle Ann Trosello. At the Calexico Port of Entry customs house, the bus was searched and found to contain a large quantity of marihuana. Barnes then fled the scene but was apprehended soon thereafter and was returned to the customs office.
A further search of the bus revealed three Mexican tourist visas, one for Barnes, one for Miss Trosello and a third for Knox. On the basis of information obtained from Miss Trosello, and from the description on Knox' visa, the customs agents were able to locate Knox in Calexico. They then arrested Knox and took him to the customs office.
Knox was immediately advised of his privilege against self-incrimination and of his right to have an attorney. Agent Richenberger testified that Knox refused to answer any questions and refused to sign a written waiver of his constitutional rights. Another agent, Agent Quick, then spoke with Knox but Knox again refused to discuss the offense charged. Appellant Barnes was advised of his rights by Agent Moore, who was attempting to question Barnes about the smuggling offense. Barnes, however, indicated that he did not wish to speak to the authorities and Moore discontinued his interrogation.
Miss Trosello, on the other hand, had told the agents of her participation in a joint venture with Knox and Barnes to smuggle the marihuana. Agents Moore and Quick therefore brought her into a room with Knox and Barnes, after they had refused to talk, and asked her to repeat her confession. Their purpose in doing so, Moore testified, was to have Knox and Barnes...
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