United States v. William Bernard McKinney

Appellant was indicted for three offenses. Counts 1 and 2 alleged violation of 21 U.S.C. § 176a, involving 123,-379.20 grams of marihuana. Count 3 involved the same marihuana and alleged appellant transferred the marihuana to a federal narcotics agent without obtaining from him a written order form, in violation of 26 U.S.C. § 4742 (a). The case was tried without a jury. Appellant was convicted and sentenced to concurrent terms of 5 years on each count.

Appellant makes three contentions on appeal.

(1) There was no evidence to show that the marihuana was illegally imported, relying on Leary v. United States, (1969) 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 . Appellant’s new counsel filed a supplemental opening brief, relying solely on this contention.

(2) The conviction on count 3 violated his rights under the Fifth Amendment.

(3) Due process was violated in that the Government interviewed the witness Ross and made threats to the witness.

There was evidence that the appellant stated to the agent, that the car in which the marihuana was found, “had been modified to smuggle and transport and conceal marihuana across the border” and that appellant could make a telephone call to…