Opinion
No. 25906.
August 24, 1970. Rehearing Denied September 21, 1970.
T. Conrad Judd, Los Angeles, Cal., for appellant.
Harry D. Steward, U.S. Atty., San Diego, Cal., for appellee.
Before CHAMBERS and CARTER, Circuit Judges.
ORDER
Appellee moves to dismiss the appeal as frivolous. We have examined the record and appellant's brief. The brief raises the sole question of whether 21 U.S.C. § 176a violates the privilege against self incrimination.
Appellant was arrested at the border. The car contained a special compartment containing marihuana. She was charged under 21 U.S.C. § 176a with smuggling the marihuana into the United States, and with facilitating its concealment after importation. It was stipulaed that the contraband was marihuana. No instruction concerning the presumption under 21 U.S.C. § 176a was given the jury.
This court has held that there is no self incrimination in the use of § 176a in a smuggling case when the presumption is not used. Witt v. United States, (9 Cir. 1969) 413 F.2d 303.
Ordered that the motion to dismiss the appeal as frivolous is granted.