United States v. Richard Kenneth Beye

Beye appeals from his conviction for knowingly concealing or facilitating the transportation of marijuana in violation of 21 U.S.C. § 176a and for knowingly concealing or facilitating the transportation of illegally imported amphetamine tablets and barbiturate capsules in violation of 18 U.S.C. § 545 .

Appellant relies primarily upon the argument that he was the victim of an unlawful search and seizure. We find no merit in this contention. The discovery of the drugs occurred at an immigration checkpoint in the course of a lawful search for aliens. See, e. g., Fumagalli v. United States, 429 F.2d 1011 (9th Cir. 1970).

Appellant also asserts as error the court’s refusal to permit him to call as a witness one who had been indicted with him as codefendant but as to whom a mistrial had been declared. The court had been advised that this proposed witness would assert his privilege against self-incrimination if questioned about the offense. A hearing out of the presence of the jury served to satisfy the court that such would indeed be the result were the witness called to the stand. Appellant contends, however, that he was entitled to require the witness to take the stand and invoke…

(dissenting):

I respectfully dissent. As I see it, the record is replete with error, and I would, if I could, reverse the judgment of conviction for several reasons. 1 I *1039 think it more desirable, however, to direct my principal dissenting comments to only one contention, i. e., that the trial judge erred in refusing to allow Beye to present his former codefendant as a defending witness. In my judgment, that refusal deprived Beye of an essentially fair trial, and the majority’s disposition of the issue subverts one of the most basic guarantees of the Constitution.

After our court had given long and careful consideration to Beye’s Sixth Amendment claim, and while, in fact, various proposed opinions were in circulation, the United States Court of Appeals for the District of Columbia, sitting en banc, resolved a similar contention. Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970). My Brothers dispose of Beye’s contention by adopting the majority opinion of the Bowles court. I prefer the approach taken by Chief Judge Bazelon, dissenting in Bowles , but I believe I can demonstrate that even the Bowles majority, had it been presented with the facts now before our court, would…

445 F.2d 1037 UNITED STATES of America, Plaintiff, v. Richard Kenneth BEYE, Appellant. No. 24418. United States Court of Appeals, Ninth Circuit. July 8, 1971. William N. Fielden (argued), La Jolla, Cal., for appellant. Shelby Gott, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee. Before MERRILL and ELY, Circuit Judges, and CROCKER, District Judge * PER CURIAM: 1 Beye appeals from his conviction for knowingly concealing or facilitating the transportation of marijuana in violation of 21 U.S.C. § 176a and for knowingly concealing or facilitating the transportation of illegally imported amphetamine tablets and barbiturate capsules in violation of 18 U.S.C. § 545 . 2 Appellant relies primarily upon the argument that he was the victim of an unlawful search and seizure. We find no merit in this contention. The discovery of the drugs occurred at an immigration checkpoint in the course of a lawful search for aliens. See, e. g., Fumagalli v. United States, 429 F.2d 1011 (9th Cir. 1970). 1 3 Appellant also asserts as error the court's refusal to permit him to call as a witness one who had been indicted with him as codefendant but as to whom…