United States v. Garland William Boggus

411 F.2d 110 UNITED STATES of America, Appellee, v. Garland William BOGGUS, Appellant. No. 23222. United States Court of Appeals Ninth Circuit. May 5, 1969. Rehearing Denied June 20, 1969. B. Michael Dann, (argued) of Kramer, Roche, Burch, Streich & Cracchiolo, Phoenix, Ariz., for appellant. Rubin Salter, (argued) Asst. U.S. Atty., Edward E. Davis, U.S. Atty., Jo Ann D. Diamos, Asst. U.S. Atty., Tucson, Ariz., for appellee. Before HAMLIN, ELY and CARTER, Circuit Judges. JAMES M. CARTER, Circuit Judge. 1 Appellant, Garland William Boggus, was convicted after a jury trial of smuggling gold into the United States in violation of 18 U.S.C. 545, and was given a probationary sentence. He now appeals. We affirm. 2 The appeal presents the following questions: 3 1. Was appellant required to invoice the gold he brought into the United States? 4 2. Was the evidence sufficient to support a jury finding that appellant smuggled the gold into the United States with intent to defraud the United States? 5 3. Was the evidence presented by the government agent obtained in violation of appellant's constitutional rights? 6 4. Did the requirement that appellant declare the gold he brought into the…

Appellant, Garland William Boggus, was convicted after a jury trial of smuggling gold into the United States in violation of 18 U.S.C. § 545 , and was given a probationary sentence. He now appeals. We affirm.

The appeal presents the following questions:

1. Was appellant required to invoice the gold he brought into the United States ?

2. Was the evidence sufficient to support a jury finding that appellant smuggled the gold into the United States with intent to defraud the United States?

3. Was the evidence presented by the government agent obtained in violation of appellant’s constitutional rights ?

4. Did the requirement that appellant declare the gold he brought into the United States violate his privilege against self-incrimination ?

Appellant and Alvin Hartley (a co-defendant) traveled to Mexico in July, 1967 to investigate purchasing gold bars which were to be resold later to people in Miami, Florida. Appellant and Hart-ley were shown two bars of gold; to test their purity, appellant drilled both bars and placed the shavings (approximately 6.2 grams) in a piece of paper in his shirt pocket. Appellant and Hartley then returned to the United States to have the gold…

(dissenting):

I respectfully dissent. This is a trifling case which should not have been prosecuted. After the government agent had gained admittance to the appellant’s *114 dwelling, and after his discovery of the tiny particles of gold and his conversations with the appellant, he contacted the United States Attorney’s office by telephone and expressed his opinion that the appellant had committed no offense. Notwithstanding, an indictment and the conviction followed. While the district judge was lenient in the imposition of penalty, the appellant now bears the burdens of a felon. 18 U.S.C. § 1 .

My analysis of the record convinces me that we should not permit the judgment of conviction to stand. As I see it, the appellant was, in truth, convicted, not for an offense which had been committed but for an offense which may have been contemplated and never accomplished. I interpret the majority’s reliance upon Lewis v. United States, 385 U.S. 206 , 87 S.Ct. 424 , 17 L.Ed.2d 312 (1966), as confirmative of this view. Lewis stands for the proposition that if one invites an undercover agent to his home for the specific purpose of feloni-ously selling narcotics therein, the introduction…