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UNITED STATES v. JOHNSTONE

No. 77-5585.

574 F.2d 1269 (1978)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Anthony JOHNSTONE, Frank McRee Smith, Santiago Mendoza and Maria Yolanda Serrano, Defendants-Appellants.

United States Court of Appeals, Fifth Circuit.

June 13, 1978.

Attorney(s) appearing for the Case

Warren Burnett, Odessa, Tex., for Johnstone.

William C. Marchiondo, Scott McCarty, Albuquerque, N. M., Robert R. Harris, El Paso, Tex., for Mendoza and Serrano.

Jamie C. Boyd, U. S. Atty., LeRoy M. Jahn, Asst. U. S. Atty., San Antonio, Tex., Rebecca D. Westfall, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.

Before GEWIN, GODBOLD and MORGAN, Circuit Judges.

GEWIN, Circuit Judge:

Johnstone, Smith, Mendoza, and Serrano were charged, in a two-count indictment, with conspiracy to possess and distribute marijuana and with possession of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. At the hearing on the motions to suppress the evidence, they agreed to waive jury trial and stipulated that the substance seized by the officers was 307 pounds of marijuana. In response, the government dropped the conspiracy...

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