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United States v. Rios-Gonzalez

decided: November 5, 1971.

UNITED STATES OF AMERICA, APPELLEE,
v.
OMAIRA RIOS-GONZALEZ, DEFENDANT-APPELLANT



Moore, Hays and Feinberg, Circuit Judges.

Author: Moore

MOORE, Circuit Judge:

The appellant, Omaira Rios-Gonzalez, was found guilty by a jury of attempting to evade the Immigration Laws by impersonating Margarita Arango without disclosing her true identity in violation of 18 U.S.C. § 1546 and of importing and smuggling approximately seven pounds of marihuana into the United States in violation of 21 U.S.C. § 176a. She was sentenced to concurrent terms of one year for violating 18 U.S.C. § 1546 and five years for violating 21 U.S.C. § 176a.

The sole issue on this appeal is whether the appellant's conviction pursuant to former*fn1 section 176a of Title 21 violated her privilege against self incrimination. No appeal was taken from the judgment convicting appellant of violating the Immigration Laws.

The Facts

On March 18, 1970, the appellant entered the United States at John F. Kennedy Airport after a flight from Colombia, South America. Her passport, visa, airline ticket, and baggage declaration identified her as Margarita Arango de Toro.

A routine examination of the appellant's luggage by a customs inspector indicated that the lids of her suitcase were suspiciously thick. She was therefore taken to a private room where a search by the inspector and a supervisor disclosed about five pounds of marihuana hidden between the lids and a false bottom. The appellant was then placed under arrest. After being advised of her rights, she claimed that the suitcase was given to her by someone who was to meet her in New York and that she did not know it contained marihuana. She admitted, however, that the address on the baggage declaration was false.

The following day the appellant was questioned by officials of the United States Immigration Service. At that time she disclosed that her true name was Omaira Rios-Gonzalez.

The appellant testified in her own defense. She claimed that an acquaintance named Ramon had made all the arrangements for her trip to the United States and that he was to meet her at the airport. It was also claimed that the suitcase which contained the marihuana was borrowed from a friend of Ramon after she loaned her own suitcase to Ramon.

On cross-examination the appellant stated that she did not know Ramon's last name or his whereabouts. She also stated that the money used to purchase the airline ticket was won in a lottery.

The Constitutionality of § 176a.

Former section 176a provided, in pertinent part that

"whoever, knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law, or smuggles or clandestinely introduces into the United States marihuana which should have been invoiced * * * shall be ...


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