United States v. Herbert Richard Smith

Appellant and his co-defendant, Frank Johnson, were charged in a three-count indictment with: (1) conspiring to smuggle marihuana; (2) smuggling marihuana; and (3) concealing and facilitating the transportation of marihuana, all in violation of 21 U.S.C. § 176a. Appellant was named in counts two and three only as an aider and abettor. After a motion for severance had been granted and trial held, appellant was found guilty and given concurrent sentences of ten years on each count.

The incidents leading up to the indictment in this case commenced on the evening of February 13, 1967, when customs inspectors at San Ysidro, California, found 108 kilos of marihuana concealed in co-defendant Johnson’s automobile as Johnson was attempting to reenter the United States from Tijuana, Mexico. Following his arrest, Johnson was taken by customs agents to his apartment in Los Angeles. The apartment was located in a building owned by appellant. Johnson and Customs Agent Epps entered the apartment in the morning hours of February 14th, and Epps positioned himself out of sight in a back bedroom. About 9:30 A.M., appellant entered the apartment and asked Johnson if he got the “stuff.” When Johnson…