The contention is without merit. The cases cited in support of the proposition speak in terms of the first opportunity. Lozano v. United States, 17 F.2d 7 (5th Cir. 1927); Rogers v. United States, 180 F. 54 (6th Cir. 1910); Pickett v. United States, 223 F. Supp. 695 (S.D.Cal. 1963), cert. denied, 379 U.S. 939, 85 S.Ct. 346, 13 L.Ed.2d 349 (1964). One of the cases, Rogers, stands directly in opposition to Elksnis's claim, for there the conviction was affirmed because the accused had not responded to the first opportunity, though he had to the second.
See United States v. Brooks, 5 Cir., 1969, 416 F.2d 459. The defendant's next three assertions of error are: (1) since the marijuana was seized at the border he could not have "brought into" the United States the marijuana; (2) that the invoicing requirement of 176a is unconstitutional as a violation of his Fifth Amendment right against self-incrimination; and (3) that because he never "brought into" the United States the marijuana, he could not have "facilitate[d] the transportation, concealment, or sale of such marijuana after being imported or brought in". All three of these contentions are disposed of by Judge Dyer of this court in Walden v. United States, 5 Cir., 1969, 417 F.2d 698. That case relies on Rule v. United States, 5 Cir., 1966, 362 F.2d 215, which, in turn, relies on Pickett v. United States, 223 F. Supp. 695 (S.D.Cal., 1963) all of which hold that the invoicing requirement of § 176a is not self-incriminating. Defendant's fifth point is that there was no evidence introduced by the Government that defendant smuggled marijuana "knowing the same to have been imported * * *".
We find that this is not a case of first impression. In Pickett v. United States, U.S. District Court, S.D. California, 1963, 223 F. Supp. 695, the same question was squarely raised and it was held that a requirement to invoice marihuana at the border violated no Fifth Amendment rights. The Supreme Court denied certiorari, 379 U.S. 939, 85 S.Ct. 346, 13 L.Ed.2d 349 (December 7, 1964).
"See, e.g., Witt v. United States, 413 F.2d 303 (9th Cir. 1969); Walden v. United States, 417 F.2d 698 (5th Cir. 1969); Ruiz v. United States, 328 F.2d 56 (9th Cir. 1964); Haynes v. United States, 339 F.2d 30 (5th Cir. 1964), cert. denied, 380 U.S. 924, 85 S.Ct. 926, 13 L.Ed.2d 809 (1965); Pickett v. United States, 223 F. Supp. 695 (S.D.Cal. 1963). See also Wynn v. United States, 422 F.2d 1245 (9th Cir. 1970).
At that time the constitutionality of the statutes under which he was convicted, and the impotency of the privilege against self-incrimination as a full defense to prosecutions thereunder, were solidly established. Until this moment, the law has not changed. Browning v. United States, 366 F.2d 420 (9th Cir. 1966); Rule v. United States, 362 F.2d 215 (5th Cir. 1966) cert. denied 385 U.S. 1018, 87 S.Ct. 744, 17 L.Ed.2d 554 (1967); Haynes v. United States, 339 F.2d 30 (5th Cir. 1964) cert. denied 380 U.S. 924, 85 S.Ct. 926, 13 L.Ed.2d 809 (1965); Pickett v. United States, 223 F. Supp. 695 (S.D.Cal. 1963), cert. denied 379 U.S. 939, 85 S.Ct. 346, 13 L.Ed.2d 349 (1964); Haili v. United States, 212 F. Supp. 656 (D.Haw. 1962). These cases invoked the teachings of, and thus girded the authority of, United States v. Kahriger, 345 U.S. 22, 73 S.Ct. 510, 97 L.Ed. 754 (1953), and Lewis v. United States, 348 U.S. 419, 75 S.Ct. 415, 99 L.Ed. 475 (1955).
( 362 F.2d at 216). The court noted in Rule that the same self incrimination plea had been made in Pickett v. United States, 223 F. Supp. 695 (S.D. Cal. 1963) and that the Supreme Court, in that case, likewise had denied certiorari. 379 U.S. 939, 85 S.Ct. 346, 13 L. Ed.2d 349 (1964).
Moreover, declaration of possession of marijuana at the port of entry into the United States does not expose the declarant to prosecution for untaxed possession within the United States under 26 United States Code section 4744 or 4755. "Had [petitioner] invoiced the marijuana at his first opportunity, he would have been relieved of it by the Customs agents, and thus would not have smuggled it, and would not have been in possession of it within the United States," (Italics in original. Pickett v. United States (S.D. Cal. 1963) 223 F. Supp. 695, 696, cert. den. (1964) 379 U.S. 939 [13 L.Ed.2d 349, 85 S.Ct. 346] (upholding validity of 21 U.S.C. § 176a, substantially identical with former 19 U.S.C. § 1593 and with 18 U.S.C. § 545); Rule v. United States (5th Cir. 1966) 362 F.2d 215, 217 (same).) Thus, the "harassment of a particular class of persons or the obtaining of evidence in order to prosecute them" is not the purpose of the declaration requirement.