NM Truck Inspection Scheme at POE OK under NY v. Burger
U.S. v. Gwathney, --- F.3d ----, 2006 WL 2734108 (10th Cir. September 26, 2006)
D’s commercial truck was subjected to a regulatory search at the Gallup port of entry, and the inspector found 152 kilos of marijuana. Also, the inspector discovered that D had a few days earlier paid $14,000 cash to repair his vehicle.
1. Applying N.Y. v. Burger, 482 U.S. 691 (1987) and Vasquez-Castillo, 258 F.3d 1207 (10th Cir.2001), the 10th finds that the NM regulatory scheme allows warrantless entry into a commercial trailer to inspect the cargo without violating the constitution. Once the inspector legitimately was inside the trailer, under the facts of the case, he had probable cause to inspect non-conforming boxes (D was hauling potatoes; boxes at the back of the trailer were different from the potato boxes).
2. District court (Johnson) erroneously admitted Western Union statement that it had no record of a money transfer from the boss to D, which was prepared in response to a government subpoena for that evidence. (The WU statement was part of Gov. Ex. 55 which also included the government subpoena. Johnson “reasoned” that although the WU statement was not part of WU’s business records, the subpoena was part of the government’s business records and the response from WU also then became a part of the government’s business records and because the whole thing was one exhibit, it came in!!!!). The 10th says that the WU document is separate and was hearsay. Even if it was a business record, which the 10th doubted, the government witness, a DEA agent, could not lay a foundation for its admission. BUT the error was harmless. The fact that boss did or did not wire D money to repair the truck had little to no bearing on whether D knew the truck contained marijuana (his defense). See the court’s somewhat tortured analysis.
3. No 6A violation for the court to give the jury a “permissive inference” of knowledge instruction: there was a rational connection between the facts proved by the prosecution (D’s sole custody and control of truck at time of loading, load was not sealed by packers; evidence that someone had walked over boxes of potatoes to get to boxed marijuana in the back) and the ultimate fact presumed.
4. D, who moved for a new trial for newly discovered evidence–a receipt from WU that there HAD been a money transfer from boss to him for $930, contrary to Ex. 55 above–failed to meet the new trial standard. The failure to discover it was due to his lack of diligence since he was the recipient of the transfer. Additionally, it was merely impeaching. And finally, akin to the 10th’s ruling regarding admission of the WU statement, it was not material.
D’s commercial truck was subjected to a regulatory search at the Gallup port of entry, and the inspector found 152 kilos of marijuana. Also, the inspector discovered that D had a few days earlier paid $14,000 cash to repair his vehicle.
1. Applying N.Y. v. Burger, 482 U.S. 691 (1987) and Vasquez-Castillo, 258 F.3d 1207 (10th Cir.2001), the 10th finds that the NM regulatory scheme allows warrantless entry into a commercial trailer to inspect the cargo without violating the constitution. Once the inspector legitimately was inside the trailer, under the facts of the case, he had probable cause to inspect non-conforming boxes (D was hauling potatoes; boxes at the back of the trailer were different from the potato boxes).
2. District court (Johnson) erroneously admitted Western Union statement that it had no record of a money transfer from the boss to D, which was prepared in response to a government subpoena for that evidence. (The WU statement was part of Gov. Ex. 55 which also included the government subpoena. Johnson “reasoned” that although the WU statement was not part of WU’s business records, the subpoena was part of the government’s business records and the response from WU also then became a part of the government’s business records and because the whole thing was one exhibit, it came in!!!!). The 10th says that the WU document is separate and was hearsay. Even if it was a business record, which the 10th doubted, the government witness, a DEA agent, could not lay a foundation for its admission. BUT the error was harmless. The fact that boss did or did not wire D money to repair the truck had little to no bearing on whether D knew the truck contained marijuana (his defense). See the court’s somewhat tortured analysis.
3. No 6A violation for the court to give the jury a “permissive inference” of knowledge instruction: there was a rational connection between the facts proved by the prosecution (D’s sole custody and control of truck at time of loading, load was not sealed by packers; evidence that someone had walked over boxes of potatoes to get to boxed marijuana in the back) and the ultimate fact presumed.
4. D, who moved for a new trial for newly discovered evidence–a receipt from WU that there HAD been a money transfer from boss to him for $930, contrary to Ex. 55 above–failed to meet the new trial standard. The failure to discover it was due to his lack of diligence since he was the recipient of the transfer. Additionally, it was merely impeaching. And finally, akin to the 10th’s ruling regarding admission of the WU statement, it was not material.
posted by Anonymous at 10:30 AM
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