United States v. Wing

• Decision Date: 22 November 1971
• Docket Number: No. 23969.,23969.
• Parties: UNITED STATES of America, Appellee, v. Terry Joseph WING, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

450 F.2d 806 (1971)

UNITED STATES of America, Appellee, v. Terry Joseph WING, Appellant.

No. 23969.

United States Court of Appeals, Ninth Circuit.

October 29, 1971.

Rehearing Denied November 22, 1971.

COPYRIGHT MATERIAL OMITTED

Robert E. Capron (argued), of Ferguson & Capron, San Francisco, Cal., Herbert Porter, Los Angeles, Cal., for appellant.

David P. Bancroft, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., F. Steele Langford, Chief, Crim. Div., San Francisco, Cal., for appellee.

Before BARNES and KILKENNY, Circuit Judges, and McNICHOLS, District Judge.^*

BARNES, Circuit Judge:

Appellant Terry Joseph Wing was indicted with three other defendants (McMullen, Franklin and McGoldrich) by a grand jury in the United States District Court, Southern District of Texas, Corpus Christi Division (No. 68-C-15), and each was charged in three counts with (a) conspiracy to smuggle marijuana from Mexico into the United States; (b) the substantive crime of smuggling 500 pounds of uninvoiced marijuana into the United States; and (c) with the substantive count of transporting, and facilitating the transportation and concealment, of the marijuana after importation, knowing it to have been imported contrary to law.

The record before us is silent as to the outcome of the charges against the defendants Franklin and McGoldrich. The government recites they are fugitives. The charges against appellant and defendant McMullen were, on motion of defendant Wing, transferred for trial to the now Northern District of California for trial. Each defendant entered a not guilty plea; and thereafter defendant McMullen changed his plea of not guilty to guilty.

Appellant Wing waived a jury trial, and was found guilty of all three counts. He was sentenced to eight years on each count; the sentences to be concurrent. He appeals in forma pauperis.

After the granting of some seven extensions of time and three times ordering his appeal dismissed for failure to prosecute, the last time with prejudice (see Appellee's Opposition filed 8/31/71, pp. 2-5), this Court, characterizing this appeal as presenting "a shabby history," reinstated the appeal. Throughout what is now fast approaching three years since his conviction—four years since his offenses—appellant Wing has been at large on bail.

Four errors are relied upon by appellant:

First: that the trial court erred in presuming that knowledge of the illegal importation of marijuana may be established by proof of possession alone;

Second: that all direct evidence of the illegal importation of marijuana by co-conspirators was obtained through an illegal search and seizure at the importing ship in Texas, and was inadmissible against appellant;

Third: that it was error—both (a) to admit a Mexican border crossing document, and (b) to admit evidence of a phone call and a telegram;

Fourth: the evidence was insufficient as to each count.

We find no merit as to any alleged error, and we affirm.

I. The Presumption of Knowledge that the Marijuana was Illegally Imported, Based on Mere Possession.

We recognize, of course, that we are bound by the teachings of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969); a case readily misunderstood by the bar. Leary was a jury case, involving the use of jury instructions. One or more instructions given therein permitted the jury to rely on the presumption made impermissible in Leary; other instructions did not require such reliance. Ascertainment of which theory the jury relied on was impossible. Here there was no jury; and no instructions are involved.

Leary, supra, was not a smuggling case when it went to the jury, after the dismissal of Count One, smuggling. The Supreme Court in Leary itself points out there are five ways in which a possessor of marijuana might "know" that his marijuana came from abroad (id., pp. 47-51, 89 S.Ct. 1532). The second way is that the defendant might have smuggled it himself (id., p. 48, 89 S.Ct. 1532), or "a possessor may have learned the source of his marijuana by indirect means," although "relatively few consumers know the origin of their marijuana by indirect means." (id., p. 49, 89 S.Ct. at 1555). (Emphasis added).

This Court first considered the applicability of Leary to smuggling cases in Witt v. United States, 413 F.2d 303 (9 Cir., 1969). There we said: "We are not persuaded by the appellant's argument that the Supreme Court's decisions immunize smugglers from prosecution." (id., p. 305) In passing, we note that in Witt, cert. was denied. 396 U.S. 932, 90 S.Ct. 272, 24 L.Ed.2d 230 (9 Cir., 1969).

In McClain v. United States, 417 F.2d 489 (9 Cir., 1969), at 491-492 we approved the Witt rationale, not only as to smuggling counts, but to reception and concealment counts.¹ "* * * Leary * * * has no relevancy * * * where the evidence shows actual knowledge of and participation in the plan of illegal importation and the statutory inferences were not relied upon."

Appellant relies heavily on Howard v. United States, 423 F.2d 1102 (9 Cir., 1970). But that case does not purport to overrule or impair the holdings of Witt, supra, or McClain, supra (see Note 4 of Howard), but rests on the fact "* * * we are unable to determine whether or not the district court relied on the presumption invalidated by Leary." (Howard, p. 1104 of 423 F.2d). There were remarks "both ways." (id., p. 1104). To this ambiguity, there was added in Howard an "improper" refusal by the trial court to make special findings.

In Wing, the appellant states positively in his opening brief, "the record is silent as to whether or not the court based his conclusion upon the unconstitutional presumption." (Op. Br. p. 9). Appellant suggests that there are "strong indications" that it did, however, based largely on alleged insufficiency of the evidence to convict; which issue we later consider.

We cannot agree with appellant that the record is silent on the matter. True, never once was the presumption alluded to by court or counsel. But in pronouncing its verdict, the court stated at the conclusion of Wing's trial:

"* * * I have no doubt in my mind about his full knowledge of the contraband shipped from the West Coast of Mexico to the East, and the ultimate designation by ship of the marihuana into the United States." (R.T. 1002; emphasis supplied.)

This can only mean the court relied on defendant\'s actual knowledge of the marijuana\'s foreign origin. He had no reason to even consider the presumption. We find no "strong indications"—in fact—no indication—that he did.

Furthermore, if we were to be wrong in our finding a lack of reliance on the Court's part, the presumption outlawed by Leary, could affect his conviction on Count Three alone, and not the convictions on Counts One and Two (smuggling) for which the sentences were the same and concurrent. Under well settled law, we are, as a matter of convenience, not required to consider Count Three alone, if the convictions are to stand on Counts One and Two. United States v. Newton, 442 F.2d 622, 623 (9th Cir. 1971); United States v. Peterson, 435 F.2d 1313 (9th Cir. 1971); and cf.: Feldstein v. United States, 429 F.2d 1092, 1094-95 (9th Cir. 1970), and Zaragoza-Almeida v. United States, 427 F.2d 1148, 1149 (9th Cir. 1970).

II. The Alleged Illegal Search of the Vessel in Texas.

Appellant asserts this was not a valid border search, relying largely on cases involving the stopping and searching of automobiles, a lesser or greater distance from the border, and the length of time the vessel had been at the border.

We hold this was clearly a valid border search. 19 U.S.C. § 1581 reads in pertinent part:

"Any officer of the customs may at any time go on board of any vessel * * * at any place * * * within the customs waters * * * and * * * search the vessel * * *," looking for dutiable articles.

19 C.F.R. 711 provides that articles of foreign origin shall be subject to duty on their entry to the United States from Guantanamo Bay.

Although there had been "a routine safety inspection" of the vessel after it was first taken under tow, the United States Coast Guard had no knowledge the vessel had started its voyage from Cuba. The crew told the Coast Guard it was proceeding from Palacios, Texas (R.T. 293). After the towing of the ship from Port Aransas to Aransas Pass (R.T. 350) (Ex. 32), the crew stated the ship had been proceeding from Florida (R.T. 314-315). It was only after the discovery of the marijuana in San Francisco that the vessel was searched. The boarding agents had word from San Francisco (R.T. 391) that the vessel had arrived from Guantanamo, Cuba (R.T. 372). This was their first knowledge of that fact. Cf. Alexander v. United States, 362 F.2d 379 (9th Cir. 1966).

But more important than the question of whether it was a border search, is the lack of any standing on appellant's part to move to suppress the evidence disclosed in the search. United States v. Conrad, 448 F.2d 271 (9th Cir. 1971); United States v. Connor, 450 F.2d 334 (9th Cir. 1971); United States v. Haili, 443 F.2d 1295 (9th Cir. 1971); Sendejas v. United States, 428 F.2d 1040, 1043-1049 (9th Cir. 1970).

We hold appellant had no standing to object to the search of a vessel, to which, and to the contents of which, he claimed no ownership and denied any interest. (R.T. 832, 11.18-25). Alderman v. United States, 394 U.S. 165, 171, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963).

Wing cannot complain of the violation of someone else's personal rights under the Fourth Amendment. United States v. Berryhill, 445 F.2d 1189, 1193 (9th Cir. 1971); Diaz-Rosendo v. United States, 357 F.2d 124 (9th Cir. 1966). See Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960).

III. (a) The Alleged Improper Admission of the Mexican Government's Border Document.

It was stipulated this border document, Ex. 12, (C.T. 53-A) was "an official...