Plascencia-Plascencia v. United States

• Decision Date: 05 May 1970
• Docket Number: No. 23699.,23699.
• Citation: 423 F.2d 803
• Parties: Ramiro PLASCENCIA-PLASCENCIA, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

423 F.2d 803 (1970)

Ramiro PLASCENCIA-PLASCENCIA, Defendant-Appellant, v. UNITED STATES of America, Plaintiff-Appellee.

No. 23699.

United States Court of Appeals, Ninth Circuit.

March 25, 1970.

Rehearing Denied May 5, 1970.

Alexander Brainerd (argued), of Bronson, Bronson & McKinnon, Victor Bacigalupi, San Francisco, Cal., for appellant.

Lawrence E. Turoff (argued), Asst. U. S. Atty., Edward E. Davis, U. S. Atty., Phoenix, Ariz., for appellee.

Before CHAMBERS and BROWNING, Circuit Judges, and BYRNE,^* District Judge.

BYRNE, District Judge:

The appellant entered the United States on April 30, 1968, at San Luis, Arizona, driving a Ford automobile. He gave a negative reply to the usual questions as to whether he had any merchandise to declare. A search of the vehicle revealed 152 kilograms of marijuana. Appellant denied knowing that the marijuana was in the car. He claimed to have borrowed the car from a friend.

The indictment charged that the appellant did, with intent to defraud the United States of America, knowingly and unlawfully smuggle and bring into the United States, contrary to law approximately 152 kilos of marijuana, in violation of Title 21, Section 176a of the United States Code.

The appellant and the government are in substantial agreement that the only issue before this court is whether the inclusion in instructions to the jury of the presumption from § 176a relating to the knowledge of illegal importation, held unconstitutional in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), requires reversal of appellant's conviction. We hold that it does not.

This court recently held in United States v. Scott, 425 F.2d 55, decided March 6, 1970, that the decision in Leary partially invalidating the presumption is fully retroactive. The court further held that Scott's failure to except to the instruction embodying the presumption did not foreclose him from claiming error in the instruction. The court found there was a conflict in the evidence relating to Scott's knowledge of illegal importation and, therefore, could not conclude that the error was harmless beyond a reasonable doubt.

Unlike Scott, this was a smuggling case and the discovery of the marijuana established the very fact of illegal importation (Witt v. United States, 413 F.2d 303 (CA 9)), and the giving of the instruction under the circumstances of this case was harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

The appellant argues, "At trial, the appellant vehemently asserted that until the customs officials discovered the marijuana in the trunk of his car, he had no knowledge of its existence. This disavowal of any knowledge regarding possession of marijuana established the only issue actually before the jury at time of trial...