United States of America, and v. Frank Leroy Thomas, and United States of America, and v. Alfred Dennis Lucas, And

These consolidated appeals follow a conviction by jury trial of the appellants Thomas and Lucas. The indictment charged appellants with conspiracy to smuggle marihuana, smuggling marihuana and transporting marihuana. Lucas was found guilty of the smuggling and transporting counts (21 U.S.C. § 176a), and Thomas was found guilty of the transporting count.

THOMAS APPEAL

Thomas contends that the district court erred in denying his motion for acquittal at the close of the govern ment’s ease. The evidence is summarized in the government’s brief.

At 2:00 a. m. on Tuesday morning, September 1,. 1970, two Negroes, appellants Lucas and Thomas, drove up to the primary inspection lane at the port of entry, San Ysidro, California. At primary inspection, Inspector Konopacky asked appellants if they had anything to declare; Lucas, the driver said no, that they just went down to Mexico for beer and girls.

Lucas was asked who owned the car and he said, “a friend”; he was asked to open the trunk and was asked again who owned the car and he replied, “my brother”. Because of these responses regarding the car’s ownership and due to the fact that Lucas was overly friendly, the car was referred to…