420 F2d 486 United States v. Auclair

420 F.2d 486

UNITED STATES of America, Plaintiff-Appellee,
v.
Priscilla Ann AUCLAIR, Defendant-Appellant.

No. 24109.

United States Court of Appeals Ninth Circuit.

December 19, 1969.

Douglas R. Reynolds (argued), San Diego, Cal., for appellant.

Phillip W. Johnson (argued), Asst. U. S. Atty., Edwin L. Miller, U. S. Atty., San Diego, Cal., for appellee.

Before MERRILL and ELY, Circuit Judges, and BYRNE, District Judge.*

PER CURIAM:

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1

Appellant was arrested while crossing the border at San Ysidro, California, and was charged under 21 U.S.C. § 176a on two counts with smuggling, transporting and concealing marihuana. She was further charged with smuggling merchandise (one "Ambar" pep pill) under 18 U.S.C. § 545. Following a jury trial she was convicted on all counts. On appeal she challenges the sufficiency of the evidence to convict her on the marihuana counts and the admissibility of certain statements made by her codefendant.

2

Appellant and her two children were passengers in a car driven by a codefendant. The marihuana was concealed in the car. The trial presented a question of credibility. Her contention is that she did not know of the presence of the marihuana. However, there was evidence from which the jury, crediting the testimony of Government witnesses, could have found that appellant had, for compensation, agreed to provide a family group "cover" for the smuggling operation; that she had taken the children on the trip to Mexico and was present in the car for this purpose. On these facts Arellanes v. United States, 302 F.2d 603 (9th Cir.), cert. denied 371 U.S. 930, 83 S.Ct. 294, 9 L.Ed.2d 238 (1962), is distinguishable; rather, Eason v. United States, 281 F.2d 818 (9th Cir. 1960), applies.

3

We find no merit in the contention that testimony regarding statements made by her codefendant (who was separately tried) was improperly admitted under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The testimony was received without objection on examination by the Government after appellant had opened the door by questioning the Government witness respecting other statements by the codefendant to that witness.

4

Judgment affirmed.

Notes:

*

Honorable William M. Byrne, United States District Judge for the Central District of California, sitting by designation