Walden v. United States

• Citation: 417 F.2d 698
• Decision Date: 02 October 1969
• Docket Number: No. 26280 Summary Calendar.,26280 Summary Calendar.
• Parties: Robert Lyle WALDEN, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

417 F.2d 698 (1969)

Robert Lyle WALDEN, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 26280 Summary Calendar.

United States Court of Appeals Fifth Circuit.

October 2, 1969.

Humberto L. Juarez, Jr., Hall & Juarez, H. C. Hall, III, Laredo, Tex., for appellant.

James R. Gough, Asst. U. S. Atty., Houston, Tex., for appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

DYER, Circuit Judge:

Walden waived a jury and was convicted by the District Court on one conspiracy and two substantive counts of smuggling marihuana into the United States and thereafter facilitating the transfer and concealment of the marihuana in violation of 21 U.S.C. § 176a.¹ Walden contends that the requirements of declaration and invoicing contained in 21 U.S.C. § 176a violate his privilege against self-incrimination as guaranteed by the Fifth Amendment to the Constitution and that he could not have transported and concealed the marihuana after importation because the importation was never completed. We affirm.²

Walden and a friend drove a 1957 Cadillac hearse across the International Bridge into Mexico. There they bought 350 pounds of bulk marihuana which they packed into a special compartment located in the bed of the hearse. On February 11, 1968, the hearse with Walden at the wheel proceeded back across the International Bridge from Mexico. The hearse was sent to a secondary inspection area from the control station because it contained baggage. An inspection of the interior of the hearse revealed two marihuana seeds under the right front seat. A Customs agent searched the rear of the hearse and discovered the special compartment which had been concealed under some fur and aluminum foil trim. After being warned of his rights, Walden told Customs agents that he and a friend had gone from New York to Mexico, bought the marihuana, packed it into the hearse and planned to transport it into the United States.

Walden insists that under the doctrine of Grosso v. United States, 1968, 390 U.S. 62, 88 S.Ct. 709, 19 L. Ed.2d 906, and Marchetti v. United States, 1968, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889, the requirements of declaration and invoicing contained in 21 U.S.C. § 176a violated his privilege against compulsory self-incrimination. We disagree. In Grosso and Marchetti the defendants were convicted of failing to pay taxes to the United States on activities which the States had declared to be illegal. The United States made its tax records available to the states. Therefore compliance with the Federal wagering tax statutes meant incrimination at the State level. But compliance with 21 U.S.C. § 176a precipitates no such incrimination. Had Walden declared and invoiced the marihuana at the border, it would have been immediately seized by Customs. At that point Walden would not have been vulnerable to prosecution, either Federal or State, because he would have complied with the Federal law and he would have never reached the State of Texas with marihuana in his possession. As it was, he violated 21 U.S.C. § 176a, became vulnerable to prosecution by the United States and, he alleges, the State of Texas. We laid to rest the contention that 21 U.S.C. § 176a was violative of the privilege against compulsory self-incrimination when we said:

It would be strange indeed if one could Constitutionally be required to declare ordinary merchandise at the border and be punished for failure so to do, if, at the same time, surreptitious importation of contraband does not have to be declared and a failure to declare cannot be punished. The importation is not compelled and the Fifth Amendment privilege against compulsory self-incrimination does not apply. Rule v. United States, 5 Cir. 1966, 362 F.2d 215, 217.

Walden leans heavily on Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. It is inapposite. While Leary did strike down a presumption of knowledge of illegal importation in 21 U.S.C.A. § 176a, in the instant case there was abundant direct evidence that Walden had knowledge of the origin of the marihuana. Leary also held that the Fifth Amendment privilege against self-incrimination was available to a charge under 26 U.S.C.A. § 4744(a) (1), the Marihuana Tax Act, but here we are not involved with that act. We are faced only with the narrow issue of whether or not the requirements of declaration and invoicing violated Walden's privilege against...