UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
BERNARDO RODRIGUEZ REINOSA, JOSE RODRIGUEZ MALDONADO, DEFENDANTS-APPELLANTS
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The court held that convictions based on a statutory presumption invalidated by Leary v. United States must be reversed, but a warrantless border search was constitutional.
Appellants were convicted of drug offenses, including transporting illegally imported marihuana and possessing marihuana without paying a tax. They ap…
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PER CURIAM.
The appellants, Bernardo Rodriguez Reinosa and Jose Rodriguez Maldonado were found guilty by a jury on two counts of knowingly transporting marihuana which had been illegally imported into the United States in violation of 21 U.S.C. § 176a and on one count of possessing marihuana without having paid the transfer tax in violation of 26 U.S.C. § 4744(a) (2).
In view of the Supreme Court’s holding in Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, Part I, the conviction under 26 U.S.C. § 4744(a) (2) cannot be sustained.
The district court charged the jury upon the statutory presumption growing out of the possession of marihuana provided for in 21 U.S.C. § 176a. For this reason, the convictions under this-section cannot be sustained in the present posture of the case. Leary, Part II. The possibility remains however that upon retrial, convictions may be obtained for violation of § 176a. The only effect of Leary upon this section was the invalidation of the presumption arising from possession.
The appellants contend that all counts of the indictment should be dismissed on the ground that the warrant-less border search was unconstitutional. This argument has been previously advanced to this Court in United States v. Briones, 5 Cir. 1970, 423 F. 2d 742; and Ramirez v. United States, 5 Cir. 1959, 263 F. 2d 385. In light of those cases we hold that the search of the appellant’s automobile and seizure of the marihuana was not unconstitutional.
The decision of the district court admitting into evidence the seized marihuana is affirmed.
The case is reversed and remanded for retrial on counts 1 and 2 of the indictment and dismissed as to count 3.
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United States v. Hart, 506 F.2d 887 (5th Cir. 1975)
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United States v. Maggard, 451 F.2d 502 (5th Cir. 1971)
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United States v. Johnson, 439 F.2d 885 (5th Cir. 1971)
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Leary v. United States, 395 U.S. 6 (U.S. 1969)
- Ramirez v. United States, 263 F.2d 385 (5th Cir. 1959)
- United States v. Briones, 423 F.2d 742 (5th Cir. 1970)