John Antonio Da Costa, Appellant, v. United States of America, Appellee, 397 F.2d 249 (9th Cir. 1968)

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U.S. Court of Appeals for the Ninth Circuit - 397 F.2d 249 (9th Cir. 1968) July 9, 1968
Rehearing Denied September 11, 1968

C. V. Worrell (argued) of Worrell & Niles, Los Angeles, Cal., for appellant.

Phillip W. Johnson (argued), Asst. U. S. Atty., Edwin L. Miller, Jr., U. S. Atty., San Diego, Cal., for appellee.

Before CHAMBERS and ELY, Circuit Judges, and BYRNE, District Judge.


The judgment of conviction is affirmed.

Da Costa, a United States citizen, went to Mexico. He had a record of prior narcotics convictions. Thus, when he crossed back into the United States he needed, under 18 U.S.C. § 1407, a certificate to surrender at the border. There is no question that he did not have the certificate.

But he was charged with crossing into the Southern Division of the Southern (Judicial) District of California, now the Southern District of California. And, he took the stand and insisted that he crossed at San Luis, Arizona.

We do not and need not wrestle with the venue or jurisdictional questions which appellant raised for the first time on appeal. The jury did not have to believe Da Costa and evidently did not, because the jury was told by the court that if it believed that Da Costa crossed into Arizona he should be acquitted.

Evidence that the crossing was at the vicinity of San Diego, California, was circumstantial. It was not overwhelming, but sufficient to permit a jury to be convinced beyond a reasonable doubt.

Other points raised, we find to be without merit.