United States v. Harding, 25371.

• Decision Date: 13 October 1970
• Docket Number: No. 25371.,25371.
• Citation: 432 F.2d 1218
• Parties: UNITED STATES of America, Appellee, v. Theodore Lee HARDING, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

432 F.2d 1218 (1970)

UNITED STATES of America, Appellee, v. Theodore Lee HARDING, Appellant.

No. 25371.

United States Court of Appeals, Ninth Circuit.

October 13, 1970.

Robert V. Schucker (argued), San Diego, Cal., for appellant.

Brian Michaels (argued), Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.

Before HAMLEY and KILKENNY, Circuit Judges, and BYRNE, District Judge.^*

PER CURIAM:

When Theodore Lee Harding crossed the border from Mexico to the United States at 10:30 a. m., on July 15, 1969, a customs inspector at the Port of Entry found five Mexican aliens inside the trunk of Harding's Chrysler Imperial. As a result of this incident, a federal grand jury returned a nine-count indictment against Harding.

In counts one, two and three, he was charged with inducing the illegal entry of three of these aliens (one named in each count), in violation of 8 U.S.C. § 1324(a) (4). In counts four, five and six, Harding was charged with illegally bringing these aliens into the United States, in violation of 8 U.S.C. § 1324(a) (1). In counts seven, eight and nine, he was charged with transporting the three aliens in the United States, in violation of 8 U.S.C. § 1324(a) (2). After a jury trial, Harding was acquitted on counts one, two and three, and convicted on the remaining six counts. This appeal followed.

Harding first argues that the jury verdict is not supported by sufficient evidence.

Since Harding had the aliens in the trunk of his car at the Port of Entry, the only question is whether he then knew they were concealed in his car. If so, the jury could find that he had the requisite intent to violate 8 U.S.C. § 1324(a) (1) and (2). Our examination of the record convinces us that the evidence tending to show knowledge on the part of Harding, although circumstantial, is sufficient to support the verdict.

Harding contends that the trial court erred in permitting the Government to cross-examine him with regard to the rummored alien smuggling activities of one Bradley Cathey. The sum total of that cross-examination was to the effect that Harding suspected that Cathey was responsible for putting the aliens in the trunk of Harding's car. Harding asserts that this cross-examination should have been stopped because (1) it exceeded the scope of the direct examination, (2) it was an attempt to impeach him upon a collateral issue, and (3) it was irrelevant to any issue in the case.

In our opinion, the cross-examination was appropriate. In his direct examination, Harding denied having any knowledge as to how the aliens got into the trunk of his automobile. But the Government knew that he had previously told Agent Webb that Cathey was responsible. Accordingly, on cross-examination, the Government laid a foundation to impeach...