United States v. Dennis Lee Wertz

Appellant, convicted of the unlawful smuggling of marijuana into the United States (21 U.S.C. § 176a), urges six errors exist. They are:

(1) Insufficient proof the smuggled substance was marijuana;

(2) Failure of the Court to define marijuana;

(3) Lack of proof the marijuana was not invoiced;

(4) The illegality of the “second” search of the defendant;

(5) The prosecutor's argument that defendant should have submitted himself to cross-examination;

(6) Error in instructions as to the burden of proof on the government.

We have no difficulty in finding no error in points one and two because of the stipulation between the parties that the smuggled substance was marijuana; which was the word used in the indictment to charge the defendant with smuggling.

The evidence unquestionably shows the marijuana was not declared or invoiced.

We find that the “second” search of the defendant’s person was, on the record now before us, not a border search for contraband ( 19 U.S.C. § 482 ), Cf. United States v. Markham, 440 F.2d 1119 (9th Cir. 1971); United States v. Weil, 432 F.2d 1320 (9th Cir. 1971); United States v. Glaziou, 402 F.2d 8, 12-14 (2nd Cir. 1968).

Whether the evidence on a…