94 F.2d 902 (9th Cir. 1938), 7952, Barone v. United States

Docket Nº:7952.
Citation:94 F.2d 902
Case Date:February 14, 1938
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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94 F.2d 902 (9th Cir. 1938)




No. 7952.

United States Court of Appeals, Ninth Circuit.

February 14, 1938

Edward F. Boyle, of San Diego, Cal., for appellant.

Ben Harrison, U.S. Atty., and Francis Whelan, Asst. U.S. Atty., both of Los Angeles, Cal.

Before WILBUR, DENMAN, and STEPHENS, Circuit Judges.

DENMAN, Circuit Judge.

This is an appeal by defendant from a judgment entered upon verdict of guilty on two counts of violation of 19 U.S.C.A. § 1593; smuggling merchandise into the country, and concealing merchandise smuggled into the country. He was fined $50 and sentenced to one year on each count, the sentence to run concurrently.

The sole question on this appeal, raised by defendant's motion for a directed verdict, is whether the evidence is sufficient to warrant a verdict of guilt.

The evidence shows that the defendant is a resident of Tia Juana, Mexico, where he operates a garage. He has no past criminal record and has a good reputation in his community.

On the day of his arrest he left his garage, bound for the border, driving a Cadillac automobile. With him were a friend, Cancino, and a Mexican policeman, Melendrez. Defendant was stopped at the border and his car searched. In a comparatively inaccessible place in its structure, the dustpan underneath the oil crank case, was found a bottle and a paper bundle. The bottle contained mile of magnesia, and the paper two bindles of narcotics. Defendant was not charged with smuggling the milk of magnesia.

A United States narcotics inspector testified that the narcotics would have been worth about $4 in the illegal market.

The officers who searched the car and found the drugs testified they had been tipped off by telephone that Barone had them concealed in his car.

The defendant testified that he was totally unaware of the presence of the drugs in his car. There is uncontradicted

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evidence that he had been searched many times previously and that no narcotics had been found.

There is uncontradicted evidence that a certain character in Tia Juana, known as John the Greek, frequented Barone's garage, and that John the Greek, having a violent dislike for Barone, had threatened to 'get' him. On the morning of the arrest, before defendant and his friend Cancino left for the border, defendant, Cancino, and John the Greek were all in contact with the Cadillac; that is to say, looking it over, testing the oil, putting gas...

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