United States v. Felix McKinney

A jury found McKinney guilty of two violations of 21 U.S.C. § 176a arising from his participation in an attempt to smuggle marijuana into the United States at Tecate, California. We affirm.

McKinney was arrested after a customs inspection revealed 14 kilo bricks of marijuana secreted under the seats of the automobile in which he rode as a passenger. Viewed in the light most favorable to the government, the evidence shows that he accompanied his co-defendants on an earlier dry run through Tecate, rode with them while they picked up the marijuana, observed them transfer it from one car to another, and expressed concern about possible arrest as they approached the United States border. This evidence sufficiently establishes his knowing involvement in the smuggling attempt.

McKinney was not entitled to have the jury hear his codefendant’s invocation of the Fifth Amendment privilege against self-incrimination. United States v. Beye, 445 F.2d 1037 (9th Cir. 1971).

After deliberating a short while, the jury asked to see the indictment. Appellant’s counsel asked the judge to instruct the jury again that an indictment is not evidence of guilt. The judge in his opening remarks to the…