Opinion
No. 71-2266.
February 17, 1972. Certiorari Denied May 22, 1972.
Jose G. Otero (argued), San Diego, Cal., for appellant.
Lyn I. Golberg, Asst. U.S. Atty. (argued), Harry D. Steward, U.S. Atty., Stephen G. Nelson, Acting Chief, Crim. Div., San Diego, Cal., for appellee.
Appeal from the United States District Court for the Southern District of California.
Before ELY, CARTER and CHOY, Circuit Judges.
Moran was convicted of having smuggled aliens into the United States, an offense proscribed by 8 U.S.C. § 1324(a)(1). Driving his automobile from Mexico into the United States, he was requested to open the vehicle's trunk during a border inspection. This being done, a United States Customs Inspector discovered the aliens in the trunk compartment, and Moran's arrest and prosecution followed.
In urging reversal, Moran presents two principal contentions. The first is that since the Government returned one of the aliens, a fifteen-year old youth, to Mexico before the time of Moran's trial, Moran was improperly deprived of any favorable testimony which the alien might possibly have presented in his behalf. We reject the contention for two reasons: (1) There was apparently no pretrial effort to maintain the presence of the alien in this country until the time of the trial. (2) Assuming, arguendo, that the Government's representatives should have made the self-determination to hold the alien youth available until the time of the trial, any such assumed irregularity was, in the light of the record, harmless beyond all reasonable doubt.
The second contention made by Moran is that the District Court improperly admitted evidence as to a prior similar act in which Moran had been involved. While this argument is in some respects forceful, we have concluded that the point, in this case, is not of such force as to require reversal.
A third point, collateral to Moran's second main contention, is that the prosecution violated the rule of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). The argument is ingenious but, in our opinion, without merit.
Affirmed.