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462 F2d 347 United States v. Bowen

462 F.2d 347

UNITED STATES of America, Plaintiff-Appellee,
v.
John Lee BOWEN, Defendant-Appellant.

No. 72-1012.

United States Court of Appeals,

Ninth Circuit.

June 16, 1972.
Rehearing Denied July 24, 1972.

Michael D. Nasatir (argued), of Nasatir, Sherman & Hirsch, Beverly Hills, Cal., for defendant-appellant.

Shelby R. Gott (argued), Asst. U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before MERRILL and GOODWIN, Circuit Judges, and LYDICK,* District Judge.

PER CURIAM:

1

John Lee Bowen appeals his conviction, following a jury trial, for violation of 21 U.S.C. 176(a) and 21 U.S.C. 331(q) (3) (B) (smuggling and transporting smuggled marijuana and possession of depressant and stimulant drugs).

2

While searching Bowen's rented camper for aliens, Immigration Officer Ortmeier first smelled and then found in the camper nearly 356 pounds of marijuana bricks of the type and packaged in the manner that usually comes from Mexico, along with backpacking equipment and burlap bags marked Product of Mexico. One hundred fifty-eight benzedrine tablets were found in the pocket of a jacket in the cab of the camper.

3

Questions raised on appeal are whether the search and seizure were lawful, whether there was sufficient evidence for the jury to conclude that the marijuana had been unlawfully imported by appellant and whether appellant knew it had been unlawfully imported when he transported it.

4

The search and seizure were plainly lawful. The circumstantial evidence of knowledge of unlawful importation on Count 2 of the Indictment, though not overwhelming, was clearly sufficient to support the jury verdict. The question of the sufficiency of the evidence to support the smuggling charge of Count 1 need not be reached since the sentences on Counts 1 and 2 were identical and concurrent. United States v. Aranda, 9th Cir., 1972, 457 F. 2d 761.

5

The judgment is affirmed.

*

The Honorable Lawrence T. Lydick, United States District Judge for the Central District of California, sitting by designation