United States v. Phillip Andrew Scott

Scott appeals from his conviction for violating 21 U.S.C. § 176a. It is Scott’s second trip to this court. His prior appeal resulted in a reversal for error in instructing the jury upon the inference from section 176a, held unconstitutional in part in Leary v. United States (1969) 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 . (United States v. Scott (9th Cir. en banc 1970) 425 F.2d 55 .) The evidence introduced at his second trial is virtually identical to that introduced at his first trial. The evidence is stated in detail in the opinions disposing of his prior appeal, and we do not repeat it here.

Scott now contends that the evidence was insufficient to prove that the marihuana was illegally imported. We think that the totality of circumstances surrounding the marihuana transaction amply supports the implied finding of the jury that the marihuana was illegally imported. (Cf. Buelna-Mendoza v. United States (9th Cir. 1971) 435 F.2d 1386 ; United States v. Gibbs (9th Cir. 1970) 435 F.2d 621 .)

He also complains that the district court abused its discretion in refusing to ask prospective jurors on voir dire a question about the jurors’ “feelings toward Negroes” in the open-end…