United States v. Velia Tapia-Lopez

Tapia-Lopez appeals her conviction for smuggling 220 pounds of marijuana into the United States in violation of 21 U.S.C. § 176a. A border search of her automobile revealed the contraband. The primary issue at trial was whether Tapia knew the concealed marijuana was in the vehicle. Tapia was to be sentenced in February 1969, but failed to appear. In 1974 she appeared voluntarily and was sentenced. She now appeals, complaining of error in instructing the jury and prosecutorial misconduct.

I. INSTRUCTION

Explaining the “knowledge” aspect of 21 U.S.C. § 176a, the district court charged the jury:

After this case was tried, the Supreme Court, in Leary v. United States, 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 (1969), held unconstitutional that portion of § 176a permitting the jury to infer from proof of possession that a defendant knew that marijuana had been illegally imported. 395 U.S. at 52-53 , 89 S.Ct. 1532 . This part of the Leary decision has been held to be retroactive (see United States v. Scott, 425 F.2d 55, 59 (9th Cir. 1970) (en banc)), and Tapia’s failure to object to the instruction does not preclude the point for appeal. 425 F.2d at 57 — 58. Tapia is…