United States v. Guillermo Briseno-Hernandez

441 F.2d 1094 UNITED STATES of America, Plaintiff-Appellee, v. Guillermo BRISENO-HERNANDEZ, Defendant-Appellant. No. 26233. United States Court of Appeals, Ninth Circuit. May 4, 1971. Manuel Aranda, Jr., of Hidalgo, Aranda & Garcia, Los Angeles, Cal., for defendant-appellant. Harry D. Steward, U.S. Atty., Robert H. Filsinger, Chief, Criminal Division, Phillip W. Johnson, Special Asst. to U.S. Atty., San Diego, Cal., for plaintiff-appellee. Before DUNIWAY, ELY and HUFSTEDLER, Circuit Judges. HUFSTEDLER, Circuit Judge: 1 Appellant was convicted for concealing and transporting illegally imported marihuana (21 U.S.C. 176a) and illegally imported seconal pills (18 U.S.C. 545). The unusual twist in this case is that appellant was caught trying to carry the contraband from the United States into Mexico. 2 A customs agent found a large cache of marihuana and pills in burlap bags hidden in a culvert about three miles north of the Mexican border. The area was placed under surveillance, and other agents searched the border. Two fresh sets of footprints led out of Mexico into the United States. The prints appeared to have been made by persons carrying heavy burdens. Similar prints were…

(dissenting):

I respectfully dissent. Even when I view the evidence in the light most favorable to the Government, as I am required to do, I cannot agree that it was sufficient to support the determination, beyond a reasonable doubt, that the appellant knew that the contraband in question had previously been illegally imported into the United States. It is true that he had been directed to “bring back” the material to Mexico, but I think that the fact that his directions included those words is the only foundation for any inference that he was aware that the marijuana and drug had *1096 once been in our neighboring country. Assuming such an awareness on his part, the circumstantial proof, in my opinion, remains insufficient to support the conclusion that he knew that any previous importation had been illegally made. I have no doubt that the appellant suspected that he had involved himself with persons engaged in illegal activity, but such is far from adequate to supply the crucial element of actual knowledge which the statute requires. Since no useful purpose would be served by further elaboration upon my views, I simply record my opinion that BrisenoHernandez should not have…

Appellant was convicted for concealing and transporting illegally imported marihuana (21 U.S.C. § 176a) and illegally imported seconal pills ( 18 U.S.C. § 545 ). The unusual twist in this case is that appellant was caught trying to carry the contraband from the United States into Mexico.

A customs agent found a large cache of marihuana and pills in burlap bags hidden in a culvert about three miles north of the Mexican border. The area was placed under surveillance, and other agents searched the border. Two fresh sets of footprints led out of Mexico into the United States. The prints appeared to have been made by persons carrying heavy burdens. Similar prints were found near the culvert. The following afternoon an agent saw appellant approaching the culvert. Appellant dragged a bag of marihuana and a bag of seconal pills out of the culvert and hid them in some brush. He loaded into his Volkswagen the remaining two bags, together containing about 130,000 seconal pills. He drove toward Mexico until he was stopped and arrested less than a mile from the border.

After receiving a warning on his constitutional rights, appellant stated in substance that on the day before in Tecate,…