446 F2d 509 United States v. Scott

446 F.2d 509

UNITED STATES of America, Plaintiff-Appellee,
v.
Phillip Andrew SCOTT, Defendant-Appellant.

No. 71-1272.

United States Court of Appeals, Ninth Circuit.

Aug. 6, 1971.

Joel W. H. Kleinberg (argued), Los Angeles, Cal., for defendant-appellant.

David Fox, Asst. U.S. Atty. (argued), J. Kent Steele, Asst. U.S. Atty., Robert L. Meyer, U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before KOELSCH and HUFSTEDLER, Circuit Judges, and WALLACE,1 District Judge.

HUFSTEDLER, Circuit Judge:

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1

Scott appeals from his conviction for violating 21 U.S.C. 176a. It is Scott's second trip to this court. His prior appeal resulted in a reversal for error in instructing the jury upon the inference from section 176a, held unconstitutional in part in Leary v. United States (1969) 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. (United States v. Scott (9th Cir. en banc 1970) 425 F.2d 55.) The evidence introduced at his second trial is virtually identical to that introduced at his first trial. The evidence is stated in detail in the opinions disposing of his prior appeal, and we do not repeat it here.

2

Scott now contends that the evidence was insufficient to prove that the marihuana was illegally imported. We think that the totality of circumstances surrounding the marihuana transaction amply supports the implied finding of the jury that the marihuana was illegally imported. (Cf. Buelna-Mendoza v. United States (9th Cir. 1971) 435 F.2d 1386; United States v. Gibbs (9th Cir. 1970) 435 F.2d 621.)

3

He also complains that the district court abused its discretion in refusing to ask prospective jurors on voir dire a question about the jurors' 'feelings toward Negroes' in the open-end form that he requested. The court refused to ask the question as defense counsel posed it, but the court did interrogate the prospective jurors upon the subject of potential prejudice. The district court's mode of framing its questions on voir dire did not constitute an abuse of the discretion accorded it. (Cf. Silverthorne v. United States (9th Cir. 1968) 400 F.2d 627.)

4

Next, Scott contends that there was error in refusing a requested instruction that the jury could consider his 'failure to flee from or resist arrest as a factor tending to prove his innocence.' Experimental observations do not give substantial assurance that either failure to flee or failure to resist arrest makes it more likely than not that the person arrested is innocent of the offense with which he is charged. The court properly refused to give the instruction suggesting that the jury could draw an inference of innocence from these facts.

5

Scott's final contention also relating to a jury instruction does not have sufficient merit to require comment.

6

The judgment is affirmed.

1

Hon. J. Clifford Wallace, United States District Court Judge, San Diego, sitting by designation