UNITED STATES of America, Plaintiff, v. Richard Kenneth BEYE, Appellant, 445 F.2d 1037

PER CURIAM: Beye appeals from his conviction for knowingly concealing or facilitating the transportation of marijuana in violation of 21 U.S.C. § 176a and for knowingly concealing or facilitating the transportation of illegally imported amphetamine tablets and barbiturate capsules in violation of 18 U.S.C. § 545. Appellant relies primarily upon the argument that he was the victim of an unlawful search and seizure. We find no merit in this contention. The discovery of the drugs occurred at an immigration checkpoint in the course of a lawful search for aliens. See, e. g., Fumagalli v.

United States, 429 F.2d 1011 (9th Cir. 1970). Appellant also asserts as error the court’s refusal to permit him to call as a witness one who had been indicted with him as codefendant but as to whom a mistrial had been declared. The court had been advised that this proposed witness would assert his privilege against self-incrimination if questioned about the offense. A hearing out of the presence of the jury served to satisfy the court that such would indeed be the result were the witness called to the stand.

Appellant contends, however, that he was entitled to require the witness to take the stand and invoke his privilege in the presence of the jury. Bowles v. United States, 439 F.2d 536 (D.C.Cir.1970), holds to the contrary and we agree. Other points asserted by appellant we find to be without merit. Judgment affirmed. .

Although (as Judge Ely mentions in his dissent, footnote 1), the drugs were found secreted in a part of the car that had been searched when it crossed the border, there was evidence from which it could be deduced that the drugs had originally been hidden beneath the car in an area that had not been searched.