Juan Nepomuceno Olais-Castro v. United States

Juan Nepomuceno Olais-Castro appeals from his conviction on a charge of importing and bringing two ounces of heroin into the United States from Mexico on or about September 12, 1967, contrary to 21 U.S.C. § 173 (1964), in violation of 21 U.S.C. § 174 (1964). His only point on appeal is that the trial court erred in refusing to give a requested instruction to the effect that, if the jury so found the facts, they could convict the defendant of the lesser-included offense of smuggling merchandise into the United States in violation of 18 U.S.C. § 545 (1964).

The sentence prescribed by section 174 for a first offense is imprisonment for not less than five or more than twenty years and, in addition, a fine of not more than $20,000. On such a conviction, the imposition or execution of the sentence cannot be suspended, probation cannot be granted, and parole is not available. 26 U.S.C. § 7237 (d). The sentence prescribed by section 545 is a fine of not more than $10,000, or imprisonment of not more than five years, or both.

The sentence imposed upon defendant was imprisonment for five years. While this is a permissible sentence under either statute, it is the minimum which could be…

(dissenting):

The heroin involved was “merchandise” in view of the provisions of 19 U.S.C. § 1401 (e) which reads:

The Ninth Circuit in United States v. Sischo, in 1921, at 270 F. 958 , in a civil case, held that opium, the importation of which was then prohibited, was not “merchandise,” but the Supreme Court, in 1922, at 262 U.S. 165 , 43 S.Ct. 511 , 67 L.Ed. 925 , reversed and held that narcotic opium was “merchandise,” although opium was specifically dealt with in the Opium Act of 1918 which was the *1160 predecessor of Title 21, U.S.C. § 174 , under which the present indictment was brought, and which makes it unlawful to import opium into the United States.

Thus it seems to me that a conspiracy to violate Sec. 174 of Title 21 by the importation of heroin necessarily includes a conspiracy to violate 18 U.S.C. § 545 , the general conspiracy statutes concerning smuggling.

I dissent.

416 F.2d 1155 11 A.L.R.Fed. 165 Juan Nepomuceno OLAIS-CASTRO, Appellant, v. UNITED STATES of America, Appellee. No. 22988. United States Court of Appeals Ninth Circuit. July 25, 1969. Andrew G. Wagner (argued), Louis M. Wolfsheimer, San Diego, Cal., for appellant. Joseph A. Milchen (argued), Asst. U.S. Atty., Edwin L. Miller, Jr., U.S. Atty., San Diego, Cal., for appellee. Before HAMLEY and HUFSTEDLER, Circuit Judges, and HALL, District judge. * HAMLEY, Circuit Judge: 1 Juan Nepomuceno Olais-Castro appeals from his conviction on a charge of importing and bringing two ounces of heroin into the United States from Mexico on or about September 12, 1967, contrary to 21 U.S.C. 173 (1964), in violation of 21 U.S.C. 174 (1964). His only point on appeal is that the trial court erred in refusing to give a requested instruction to the effect that, if the jury so found the facts, they could convict the defendant of the lesser-included offense of smuggling merchandise into the United States in violation of 18 U.S.C. 545 (1964). 1 2 The sentence prescribed by section 174 for a first offense is imprisonment for not less than five or more than twenty years and, in addition, a fine of not more…