Donald F. Lannom v. United States

381 F.2d 858 Donald F. LANNOM, Appellant, v. UNITED STATES of America, Appellee. No. 21243. United States Court of Appeals Ninth Circuit. Aug. 23, 1967, Rehearing Denied Oct. 11, 1967. 1 Peter Hughes, Sheela, O'Laughlin & Hughes, San Diego, Cal., for appellant. 2 Edwin L. Miller, Jr., U.S. Atty., Phillip Johnson, Asst. U.S. Atty., San Diego, Cal., for appellee. 3 Before CHAMBERS and ELY, Circuit Judges, and FERGUSON, District Judge. FERGUSON, District Judge: 4 Appellant was convicted in a jury trial for violation of 21 U.S.C. 176a, by an information which charged that he, with intent to defraud the United States, knowingly concealed and facilitated the transportation and concealment of approximately 88 pounds of marihuana, which marihuana, as he well knew, had been brought into the United States contrary to law. 5 Appellant seeks reversal on the basis of four asserted errors: (1) refusal to require disclosure of the identity of an informer in order to test his reliability on the issue of probable cause for search and seizure; (2) refusal to require disclosure of the informer on the issue of guilt or innocence; (3) an instruction to the jury that possession was evidence of…

Appellant was convicted in a jury trial for violation of 21 U.S.C. § 176a, by an information which charged that he, with intent to defraud the United States, knowingly concealed and facilitated the transportation and concealment of approximately 88 pounds of marihuana, which marihuana, as he well knew, had *860 been brought into the United States contrary to law.

Appellant seeks reversal on the basis of four asserted errors: (1) refusal to require disclosure of the identity of an informer in order to test his reliability on the issue of probable cause for search and seizure; (2) refusal to require disclosure of the informer on the issue of guilt or innocence; (3) an instruction to the jury that possession was evidence of illegal importation and knowledge thereof; and (4) the evidence was insufficient as a matter of law to sustain the conviction.

On November 18, 1965, the day before the arrest, Customs Agent Walter Gates, stationed at the San Ysidro border station, across from Tijuana, Mexico, was told by an informant that a blue 1950 Mercury, California license EIC 132, would enter the United States from Mexico the next morning sometime after 9:00 o’clock. Agent Gates was told…

(dissenting):

I respectfully dissent. The district judge, in line with the offense which was charged, properly instructed the jury that it was required to determine, as a requisite for conviction, “that the defendant knew that the marijuana had been imported or brought into the United States contrary to law.”

The Government had been informed that the importation would occur in the Mercury automobile, specifically identified. Its agent actually observed the transportation across the international frontier. He saw the driver of the vehicle in which the contraband was concealed. That driver was not the appellant, 1 and his identity was either known to the Government or might, by it, have been easily ascertained. The prosecution refused the request of the accused that he be supplied with the name of the informer, and I do not now question the refusal of the district judge to require the requested revelation. I do, however, because of the circumstances which I have outlined, challenge the propriety of authorizing the jury to infer, from the fact of the accused’s subsequent possession of the contraband, that the accused “knew that the marijuana had been imported into the United…