Gary Werner Lange, Appellant, v. United States of America, Appellee, 453 F.2d 1332 (9th Cir. 1972)

Appeal from a judgment of conviction on both counts of a two count indictment charging smuggling and transporting marijuana in violation of 21 U.S.C. § 176a.

The evidence of appellant's guilt was overwhelming; not only were some 18 kilograms of marijuana discovered upon the border search of the vehicle which appellant was driving, but also, at the time of his arrest he made a full confession of the crimes which were thereafter the subject of the instant indictment.

There is no merit in appellant's contention that the trial court committed plain error in failing to give an instruction that appellant was not guilty if he lacked knowledge that marijuana was contained in the vehicle. True, the court did not instruct in terms concerning a "mistake of fact," but it did advise the jury that intent was a material ingredient of the offense and that the burden of proving the same rested upon the prosecution. Even if defendant had suggested an instruction employing the phrase "mistake of fact," the trial court might have refused it because covered by the instructions given. United States v. Clancy, 276 F.2d 617 (7th Cir. 1960).

Affirmed.