United States of America, Appellee, v. Luciano Nungaray-nungaray, Appellant, 434 F.2d 999 (9th Cir. 1970)

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U.S. Court of Appeals for the Ninth Circuit - 434 F.2d 999 (9th Cir. 1970) November 19, 1970

Harold A. Ashford, San Francisco, Cal. (argued), Albert F. Cunningham, San Francisco, Cal., Luciano Nungaray-Nungaray, for appellant.

Harry D. Steward, U. S. Atty., San Diego, Cal., for appellee.

Before DUNIWAY, HUFSTEDLER and KILKENNY, Circuit Judges.


Appellant was indicted, tried by a jury and convicted on two counts: (1) importation of heroin in violation of 21 U.S.C. § 173 and (2) smuggling marihuana in violation of 21 U.S.C. § 176a and related statutes, 19 U.S.C. §§ 1459, 1461, 1483 and 1485. He was sentenced to serve a term of seven years on each count, the sentences to run concurrently. Although he appeals from the entire judgment and both sentences, he devotes his entire argument to an attack on the conviction under 21 U.S.C. § 176a and related statutes involved in Count Two.

Appellant's failure to attack the conviction under Count one is quite understandable. Our examination of the record convinces us that the conviction on this count is unassailable. Inasmuch as the sentences are concurrent, we could affirm on this point alone.

Appellant's argument that his Fifth Amendment privilege against self-incrimination is a complete defense to the conviction under Count Two has been considered by this court in other cases, including United States v. Jetter, 421 F.2d 839 (9th Cir. 1970); United States v. Cordova, 421 F.2d 471, 475 (9th Cir. 1970), and Witt v. United States, 413 F.2d 303 (9th Cir. 1969) and found without merit.