United States of America, Plaintiff-appellee, v. William Vega Mungia, 5956, Defendant-appellant, 454 F.2d 734 (9th Cir. 1972)

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U.S. Court of Appeals for the Ninth Circuit - 454 F.2d 734 (9th Cir. 1972) Jan. 31, 1972

Barry R. Hirschfield, Oakland, Cal., for defendant-appellant.

Harry D. Steward, U. S. Atty., Stephen G. Nelson, Chief, Crim. Div., Shelby R. Gott, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before HAMLEY, DUNIWAY and HUFSTEDLER, Circuit Judges.


Mungia appeals from his conviction under two counts charging smuggling heroin (21 U.S.C. § 173) and seconal (18 U.S.C. § 545; 19 U.S.C. §§ 1459, 1461, 1484, 1485). We affirm.

1. There is more than sufficient evidence to sustain the verdict on both counts.

2. There is evidence that Mungia was drunk when he drove across the border from Mexico with a female companion on whose person the heroin was concealed. There is also evidence that he was drunk when he handed the heroin to her in Mexico. However, no instruction on the subject of the effect of intoxication on specific intent was asked or given. It is now argued that failure to give such an instruction was plain error. We think not. In argument to the jury, counsel suggested that Mungia was drunk and his companion took advantage of him, and that there was insufficient evidence of the required intent, as to which the jury was fully instructed. Nothing in the court's instructions negated reliance on intoxication as affecting intent. If counsel wanted more, he could have asked for it, but he did not.