United States of America, Plaintiff-appellee, v. Leonard Wesley Phye, Defendant-appellant, 437 F.2d 364 (9th Cir. 1971)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 437 F.2d 364 (9th Cir. 1971) January 29, 1971

Charles R. Hand, South Pasadena, Cal., for defendant-appellant.

Richard L. Jaeger (appeared), Asst. U. S. Atty., Robert L. Meyer, U. S. Atty., David R. Nissen, Chief, Crim. Div., Los Angeles, Cal., for plaintiff-appellee.

Before BROWNING, HUFSTEDLER, and TUTTLE,*  Circuit Judges.


Appellant Phye appeals from his conviction for smuggling 534 parrots into the United States from Mexico in violation of 18 U.S.C. § 545.

While Phye was in Mexico, he arranged with Porfirio Ruelas for Ruelas to pick up the parrots in Mexico, conceal them at the border, and deliver them to Phye in this country. Phye helped load the parrots in Ruelas' car, paid Ruelas $170 for the job, and retrieved the parrots in the United States. Until after his arrest, Phye did not know that Ruelas was a Government informer cooperating with customs officials.

Phye complains on appeal that the Government's participation in the smuggling relieved him of criminal responsibility, because the Government, not he, transported the parrots across the border without making the requisite declaration. We have often held to the contrary. (E. g., Pederson v. United States (9th Cir. 1968) 392 F.2d 41; Juvera v. United States (9th Cir. 1967) 378 F.2d 433.)

His remaining arguments are not supported by the record below and require no comment.

Judgment affirmed.


Honorable Elbert Parr Tuttle, Senior Judge, United States Court of Appeals for the Fifth Circuit, sitting by designation