United States v. Michael Dominic Mahoney, United States of America v. Charles Clarence Garcia

427 F.2d 658 UNITED STATES of America, Plaintiff-Appellee, v. Michael Dominic MAHONEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Clarence GARCIA, Defendant-Appellant. No. 23454. No. 23553. United States Court of Appeals, Ninth Circuit. May 12, 1970. Michael A. Bosco, Phoenix, Ariz., for Mahoney. George T. Davis, San Francisco, Cal., for Garcia. Richard K. Burke, U. S. Atty., Lawrence Turoff, Asst. Atty., Phoenix, Ariz., for appellees. Before CHAMBERS, MERRILL and ELY, Circuit Judges. MERRILL, Circuit Judge: 1 Appellants, together with three codefendants (one Arellano, one Lewis and one Cortez), were indicted in two counts for conspiracy to smuggle marijuana and for smuggling 93 kilos of Marijuana on November 30, 1967, in violation of 21 U.S.C. § 176a. The trials of codefendants Lewis and Cortez were severed to permit them to testify as Government witnesses. Following jury trial appellant Garcia was convicted on both counts; appellant Mahoney was convicted only on the conspiracy count. 2 The facts of the conspiracy were given in detail by Lewis. In the light of the errors assigned on this appeal we have, in the margin, set forth those facts…

Appellants, together with three codefendants (one Arellano, one Lewis and one Cortez), were indicted in two counts for conspiracy to smuggle marijuana and for smuggling 93 kilos of Marijuana on November 30, 1967, in violation of 21 U.S.C. § 176a. The trials of codefendants Lewis and Cortez were severed to permit them to testify as Government witnesses. Following jury trial appellant Garcia was convicted on both counts; appellant Mahoney was convicted only on the conspiracy count.

The facts of the conspiracy were given in detail by Lewis. In the light of the errors assigned on this appeal we have, in the margin, set forth those facts as well as the circumstances under which evidence was obtained in the search of a Mustang automobile and its occupants. 1

*660 On appeal the principal question is the admissibility in evidence of the items found in the Mustang and on its occupants at the time of the search at the port of entry. Appellants contend that the search and seizure were not reasonable and that their motion to suppress should have been granted. The Government contends that the search was justified as a border search.

Since the stop for search was made away from the border…

(dissenting) :

I dissent as to the reversal of the conviction of the appellant Mahoney. In my view, the error was clearly harmless.