United States v. Keith Edward Allende, United States of America v. Serito Trujillo Montoya, United States of America v. Donna Rae Silsbee

(concurring):

I fully concur in the foregoing opinion.

However, in view of several appeals in this court of late wherein the district courts involved unnecessarily generated problems by succumbing to the impulse to apprise their juries of the courts’ opinion on the sufficiency of the evidence, I suggest great restraint if not abstinence in the use of jury instructions like those set forth in footnotes 7 and 8 of our opinion.

Before CHAMBERS and CHOY, Circuit Judges, and SMITH, * District Judge.

Defendants appeal from convictions on several counts of an indictment charging violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970. 21 U.S.C. §§ 801 et seq.

On October 1, 1972, a customs dog at San Francisco International Airport alerted officials to the fact that a crate addressed to Donna Silsbee, 422 Hawthorne, Apt. 106, Oakland, California, might contain contraband. An exploratory search of the crate revealed the presence of hashish. Customs officials notified Silsbee by form letter of the crate’s arrival. U. S. Customs Special Agent Cox wrote on the notice a request that Silsbee call if she was unable to pick up the crate before the weekend.

On October 5, 1972, Agent Cox prepared an affidavit for a warrant to search Silsbee’s apartment, the prospective destination of the crate. The affidavit alleged that the crate would be concealed at that address and that the search warrant would not be executed unless there was confirmation that the trunk was taken into the apartment. A search warrant was issued for Silsbee’s apartment on October 5,1972.

On October 9, 1972,…

486 F.2d 1351 UNITED STATES of America, Plaintiff-Appellee, v. Keith Edward ALLENDE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Serito Trujillo MONTOYA, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donna Rae SILSBEE, Defendant-Appellant. Nos. 73-1800 to 73-1802. United States Court of Appeals, Ninth Circuit. Nov. 5, 1973. 1 Frank O. Bell, Jr., Asst. Federal Public Defender, (argued), San Francisco, Cal., for defendant-appellant Silsbee. 2 Richard S. Platz, (argued), Claude O. Allen, Oakland, Cal., for defendant-appellant Montoya. 3 Jules F. Bonjour, Jr., (argued), of Bonjour, Gough & Stone, Oakland, Cal., for defendant-appellant Allende. 4 Dennis Michael Nerney, Asst. U. S. Atty., (argued), James L. Browning, Jr., U. S. Atty., F. Steele Langford, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee. OPINION 5 Before CHAMBERS and CHOY, Circuit Judges, and SMITH, * District Judge. RUSSELL E. SMITH, District Judge: 6 Defendants appeal from convictions on several counts of an indictment charging violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970. 21 U.S.C. Secs. 801 et seq. 7 On October 1,…