Bible v. United States

• Decision Date: 06 May 1963
• Docket Number: No. 17209.,17209.
• Citation: 314 F.2d 106
• Parties: Howard G. BIBLE, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

314 F.2d 106 (1963)

Howard G. BIBLE, Appellant, v. UNITED STATES of America, Appellee.

No. 17209.

United States Court of Appeals Ninth Circuit.

February 25, 1963.

Rehearing Denied May 6, 1963.

James R. Madison, San Francisco, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief Criminal Section; and Elmer Enstrom, Jr., Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before MERRILL and BROWNING, Circuit Judges, and TAYLOR, District Judge.

FRED M. TAYLOR, District Judge.

Appellant Howard G. Bible has appealed from a judgment convicting him of the illegal importation of narcotics in violation of Title 21 U.S.C. § 174.¹ He was charged as a principal in the commission of the offense under 18 U.S.C. § 2 (a).²

Appellant and Nehemiah Steele were jointly indicted; Steele, prior to the trial of appellant, entered a plea of guilty to the charge and testified on behalf of the United States at the trial of appellant.

As disclosed by the record the sequence of events which culminated in appellant's arrest and conviction began in Seattle, Washington, September 1, 1960, when appellant invited his brother-in-law, Nehemiah Steele, to go to Los Angeles for the Labor Day week end. Two friends, Matthews and "Frenchie", joined them. The four drove to Los Angeles in Bible's car. There "Frenchie" left the group; Bible, Steele and Matthews drove on to Tijuana, Mexico. It is revealed by the testimony of Steele that while in Tijuana appellant handed Steele a package of heroin, promising Steele $100 if he would walk across the border with it into the United States. The two were to meet later at a designated filling station. Bible and Matthews then left for the border by automobile. Steele approached the border on foot with a group of other pedestrians. A customs inspector noticed he appeared nervous, and detained him for disrobing and a personal search. This search disclosed the package of heroin that was admitted in evidence at the trial of appellant.

Appellant contends the trial court committed error by:

1. The admission of a package containing heroin into evidence as Plaintiff's Exhibit 1A, despite objection preserved by a timely motion to suppress under Rule 41(e) of the Federal Rules of Criminal Procedure.

2. Giving, albeit without objection, a cautionary instruction on accomplice testimony in which an accomplice was defined as "one who united with another person in the commission of crime," when the association of appellant with Nehemiah Steele was a fact in dispute.

3. The admission over objection of evidence of prior misconduct by appellant for the limited purpose of determining his intent, despite the insubstantial nature of such evidence and of any issue as to intent.

We shall consider the specifications seriatim.

Appellant argues that Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960), establishes his standing to challenge the reasonableness of the search of Steele. We do not deem it necessary to decide this question, for even if we assume that appellant had standing to make the motion to suppress, we think the motion was patently without merit. It must be borne in mind that Steele was crossing the border from Mexico into the United States when he was detained and searched. A similar question was presented to and decided by this court in Witt v. United States, 287 F.2d 389 at p. 391 (9th Cir., 1961), certiorari denied 366 U.S. 950, 81 S.Ct. 1904, 6 L.Ed.2d 1242, wherein it was said:

"* * * No question of whether there is probable cause for a search exists when the search is incidental to the crossing of an international border, for there is reason and probable cause to search every person entering the United States from a foreign country, by reason of such entry alone. * * * Mere suspicion has been held enough cause for a search at the border. * * *"

See also Denton v. United States, 310 F.2d 129 (9th Cir., 1962); Cervantes v. United States, 263 F.2d 800, 803, note 5 (9th Cir., 1959). Steele's demeanor, while crossing the border and before the search of his person, was sufficient to cause suspicion on the part of the inspector, and a border search under such circumstances, if for no other reason, is not unreasonable.

We do not agree that it was "plain error" for the trial court to instruct the jury in regard to the testimony of an accomplice. Appellant does not contend that the substance of the instruction is erroneous, but urges that it should not have been given at all because it precluded the jury from fairly considering that Steele alone committed the offense. Steele was the principal witness for the United States in regard to appellant's participation in the commission of the offense, and if the jury believed him — which it obviously did — he was an accomplice.

It is well settled that the testimony of an accomplice, if believed by a jury, is sufficient to support a conviction. Toles v. United States, 308 F.2d 590 (9th Cir., 1962).

Since, according to the testimony of Steele, he was an accomplice, it was proper and the better practice to give a cautionary instruction in regard to his testimony. It has been held error not to give such an instruction. Phelps v. United States, 252 F.2d 49 (5th Cir., 1958). A proper instruction was given.³ Under the circumstances of this case it was beneficial and not prejudicial to the defendant for the court to give this instruction.

In addition, the trial court clearly instructed the jury that appellant should be acquitted if it believed his story.⁴ Manifestly, it was for the jury to determine from the evidence whether appellant participated in bringing the narcotics across the border or whether Steele acted on his own.

Steele testified he had previously carried packets of drugs to Seattle or Los Angeles for the appellant, receiving $100 on each occasion. The trial court admitted this evidence, but limited the jury's consideration of it to

"* * * determining the state of mind or intent with which the accused did the act charged."

When the testimony was permitted the court instructed the jury that it was to be considered only for this limited purpose.⁵ Also, before submitting the cause to the jury for determination the court again instructed in regard to the limited purpose of the testimony.⁶

A parallel case arose in Medrano v. United States, 285 F.2d 23 (9th Cir., 1960), certiorari denied 366 U.S. 968, 81 S.Ct. 1931, 6 L.Ed.2d 1258, rehearing denied 368 U.S. 872, 82 S.Ct. 64, 7 L.Ed.2d 73. There the defendant was charged with unlawful sale of heroin, and the trial court admitted, for the purpose of showing intent, evidence of another narcotics transaction involving the same persons. This court said:

"Such evidence was introduced for the purpose of showing intent, design, knowledge or lack of innocent purpose. Evidence that a similar and related offense was committed tended to show a pattern of conduct that was relevant to the issue of intent. * * *" (pp. 25-26)

See also Enriquez v. United States, 188 F.2d 313 (9th Cir., 1951); Anthony v. United States, 256 F.2d 50 (9th Cir., 1958).

We conclude that the appellant had a fair trial and that there is no merit to his contentions.

The judgment is affirmed.

1 21 U.S.C. § 174:

"Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States * * * contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any...