United States v. Scott, 71-1272.
| Citation | 446 F.2d 509 |
| Decision Date | 06 August 1971 |
| Docket Number | No. 71-1272.,71-1272. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Phillip Andrew SCOTT, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Joel W. H. Kleinberg (argued), Los Angeles, Cal., for defendant-appellant.
David Fox, Asst. U. S. Atty. (argued), J. Kent Steele, Asst. U. S. Atty., Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.
Before KOELSCH and HUFSTEDLER, Circuit Judges, and WALLACE,* District Judge.
Scott appeals from his conviction for violating 21 U.S.C. § 176a. It is Scott's second trip to this court. His prior appeal resulted in a reversal for error in instructing the jury upon the inference from section 176a, held unconstitutional in part in Leary v. United States (1969) 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. (United States v. Scott (9th Cir. en banc 1970) 425 F.2d 55.) The evidence introduced at his second trial is virtually identical to that introduced at his first trial. The evidence is stated in detail in the opinions disposing of his prior appeal, and we do not repeat it here.
Scott now contends that the evidence was insufficient to prove that the marihuana was illegally imported. We think that the totality of circumstances surrounding the marihuana transaction amply supports the implied finding of the jury that the marihuana was illegally imported. (Cf. Buelna-Mendoza v. United States (9th Cir. 1971) 435 F.2d 1386; United States v. Gibbs (9th Cir. 1970) 435 F.2d 621.)
He also complains that the district court abused its discretion in refusing to ask prospective jurors on voir dire a question about the jurors' "feelings toward Negroes" in the open-end form that he requested. The court refused to ask the question as defense counsel posed it, but the court did interrogate the prospective jurors upon the subject of potential prejudice. The district court's mode of framing its questions on voir dire did not constitute an abuse of the discretion accorded it. (Cf. Silverthorne v. United States (9th Cir. 1968) 400 F.2d 627.)
Next, Scott contends that there was error in refusing a requested instruction that the jury could consider his "failure to flee from or resist arrest as a factor tending to prove his innocence." Experimental observations do not give substantial assurance that either failure to flee or failure to resist arrest makes it more likely than not that the person arrested is innocent of the offense with which he is...
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...excuse the defendant from the burden of objecting, citing United States v. Scott, 425 F.2d 55, 57-58 (9th Cir.1970), after remand, 446 F.2d 509 (9th Cir.1971). Scott, however, has subsequently been overruled in United States v. Keys, 133 F.3d 1282 (9th Cir.), opinion amended on rehearing, 1......
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...States v. Cuni, 689 F.2d 1353, 1356 (11th Cir.1982); United States v. Telfaire, 469 F.2d 552, 557-58 (D.C.Cir.1972); United States v. Scott, 446 F.2d 509, 510 (9th Cir.1971); People v. Green, 27 Cal.3d 1, 36-39, 609 P.2d 468, 164 Cal.Rptr. 1 (1980); Scully v. State, 256 Ga. 683, 685, 353 S.......
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...evidence to support the jury's verdict. Circumstantial evidence is sufficient to establish illegal importation. See United States v. Scott, 446 F.2d 509, 510 (9th Cir. 1971); United States v. Gibbs, 435 F.2d 621, 624 (9th Cir. 1970), Cert. denied, 401 U.S. 994, 91 S.Ct. 1233, 28 L.Ed.2d 532......
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...States v. McQuarry, 726 F.2d 401 (8th Cir. 1984); United States v. Telfaire, 469 F.2d 552, 558 (DC Cir. 1971); United States v. Scott, 446 F.2d 509 (9th Cir. 1972). See generally Weinstein’s FEDERAL EVIDENCE, §401.08 [4] at p.401-59 (2nd Ed. 1997) (evidence of consciousness of innocence sho......