From Casetext: Smarter Legal Research

United States v. Vaught

United States Court of Appeals, Ninth Circuit
Dec 7, 1970
434 F.2d 124 (9th Cir. 1970)

Summary

holding requirement to report and declare amphetamines when going through customs not a violation of Fifth Amendment

Summary of this case from United States v. Flores

Opinion

No. 25499.

November 12, 1970. Rehearing Denied December 7, 1970.

Fields Klein, Sacramento, Cal., for appellant.

Harry D. Steward, U.S. Atty., Brian E. Michaels, Asst. U.S. Atty., San Diego, Cal., for appellee.

Before MERRILL and ELY, Circuit Judges, andJAMESON, District Judge.

Honorable William J. Jameson, United States Senior Judge, Billings, Montana, sitting by designation.


This is an appeal from a conviction on three counts of an indictment, the first count charging conspiracy to smuggle merchandise into the United States in violation of 18 U.S.C. § 371 and 18 U.S.C. § 545, the second count charging smuggling, and the third count, concealment and facilitating transportation and concealment, in violation of section 545, all counts alleging the importation of 23,000 amphetamine tablets without the merchandise having been presented for inspection, entered and declared as provided by 19 U.S.C. § 1459, 1461, 1484 and 1485.

Appellant was fined $1,000 and sentenced to 18 months imprisonment on each count, "the imprisonment portion of the sentence to be concurrent * * * and the fine to be non-cumulative."

Appellant contends that the prosecution under section 545 violates his right against self-incrimination under the Fifth Amendment, because it requires him to give evidence which might be used against him in a state criminal prosecution. He argues that a manifest describing the merchandise would be available to California law enforcement officers pursuant to the Freedom of Information Act, 5 U.S.C. § 552, making "it clear that `self-incrimination' at least under California Health and Safety Code, (prohibiting the possession, possession for sale, or transportation of dangerous drugs) * * * is a very `substantial risk'."

The same contention was rejected by this court in United States v. Perez, 426 F.2d 799 (1970), involving the importation of seconal capsules in violation of section 545, the court pointing out that, "The general customs and tariff laws which Perez violated in failing to declare the seconal capsules were imposed in an essentially noncriminal area and were primarily designed to produce federal revenue."

The same contention was also rejected by this court in Witt v. United States, 413 F.2d 303 (1969) and United States v. Jetter, 421 F.2d 839 (1970), both cases holding that the statute proscribing smuggling of marijuana (21 U.S.C. § 176a) did not violate defendant's privilege against self-incrimination.

Appellant suggests that a different rule might apply with respect to the conspiracy charge. We do not agree. In any event, as noted supra, the sentences were concurrent. Accordingly any error in instructions would be immaterial since the evidence was sufficient to sustain the conviction on the other two counts.

Affirmed.


While I concur in the result, I am hopeful that our court will soon reexamine the rule that permits a defendant to be convicted of a separate charge of conspiracy to commit an offense when he is, at the same time, convicted of the substantive offense itself. Some jurisdictions, including California, have abandoned that rule, and I think rightly so. See, e.g., In re Romano, 64 Cal.2d 826, 51 Cal.Rptr. 910, 415 P.2d 798 (1966); Cal.Penal Code, § 654 (West 1957).


Summaries of

United States v. Vaught

United States Court of Appeals, Ninth Circuit
Dec 7, 1970
434 F.2d 124 (9th Cir. 1970)

holding requirement to report and declare amphetamines when going through customs not a violation of Fifth Amendment

Summary of this case from United States v. Flores
Case details for

United States v. Vaught

Case Details

Full title:UNITED STATES of America, Plaintiff-Appellee, v. Leonard VAUGHT…

Court:United States Court of Appeals, Ninth Circuit

Date published: Dec 7, 1970

Citations

434 F.2d 124 (9th Cir. 1970)

Citing Cases

United States v. San Juan

This legislation has been upheld under the Fifth Amendment, in spite of its incriminating potential. See,…

United States v. Kearney

It has been suggested that the existing rule be re-examined and abandoned, citing California's analysis and…