Ricardo Zaragoza-Almeida v. United States

On May 3, 1968, the appellant drove a 1959 light green Buick into the United States from Mexico at Calexico, California, making a negative customs declaration. A search of the Buick revealed three packages of marijuana.

In a one count indictment the appellant was charged, pursuant to 21 U.S.C. § 176a, “with intent to defraud the United States, knowingly smuggled and clandestinely introduced into the United States from Mexico approximately 161 pounds of marihuana”. The jury found appellant guilty and he appeals.

Appellant contends that his privilege against self-incrimination was violated by the requirement of the Tariff Act of 1930 (Title 19, §§ 1459, 1461, 1484 and 1485) that imported marijuana be presented for inspection, entered and declared.

Appellant’s reliance on Leary v. United States, 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 (1968) is misplaced. Leary was not a smuggling case. Our recent decision in Witt v. United States, 413 F.2d 303 (C.A.9, 1969) controls here. As in Witt , appellant was apprehended in the very act of smuggling at the Calexico port of entry. Though the trial court instructed the jury on the 176a presumption as to knowledge of importation, under the…