United States v. William Joseph McCarthy

William Joseph McCarthy appeals from a judgment of the district court convicting him of smuggling marihuana into the United States from Mexico, as charged in a one count indictment. (21 U.S.C. 176a).

In the district court the only real issue was whether or not McCarthy knew of the presence of the some 35 pounds of marihuana, which Customs Inspector Gaudur discovered in McCarthy’s automobile during the search of the vehicle at the border port of entry. The principal attention of the parties in the presentation of proof and in argument to the jury, and of the court in its instructions, was devoted to that issue. At no time did McCarthy question the validity of the search, and attempt to have suppressed as illegally seized, the marihuana and any proof concerning it.

However, McCarthy now seeks to do so and to have this court declare that the remaining properly admitted evidence is insufficient to sustain the conviction. We decline the invitation. “For the search and admissibility of the product of the search to be challenged on appeal, that challenge must be made in the first instance in the trial court. ‘Fairness to that court and to counsel and to the reviewing court demands…