United States of America, and v. William Earl Johnston

Ninth Circuit

United States of America, and v. William Earl Johnston

440 F.2d 389

CourtCourt of Appeals for the Ninth Circuit

DecidedMay 25, 1971

Docket71-1347_1

StatusPublished

Cited by3 cases

This text of 440 F.2d 389 (United States of America, and v. William Earl Johnston) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States of America, and v. William Earl Johnston, 440 F.2d 389 (9th Cir. 1971).

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Opinion

PER CURIAM:

The judgment of conviction is affirmed.

This was a conviction for smuggling and transporting marijuana (21 U.S.C. § 176a). Johnston was caught at the Mexican border.

Here he contends he was entitled to an instruction on “lesser included offense,” to-wit: 18 U.S.C. § 545: smuggling merchandise (without invoicing) into the United States with intent to defraud.

In another case, the contention might be correct. But here it was marijuana that was smuggled or nothing. Defendant could not be guilty of 18 U.S.C. § 545 without having violated 21 U.S.C. § 176a. So it was no error to not instruct about a lesser offense. See Olais-Castro v. United States, 9 Cir., 416 F.2d 1155.

The mandate will issue forthwith.

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