427 F.2d 150
UNITED STATES of America, Plaintiff-Appellee,v.Bernardo RODRIGUEZ REINOSA, Jose Rodriguez Maldonado,Defendants-Appellants.
No. 27366 Summary Calendar.
United States Court of Appeals, Fifth Circuit.
May 13, 1970.

Roberto Yzaguirre, Aldrich, McDonald & Stewart (court appointed), Edinburg, Tex., for defendant-appellant Reinosa.
Walter G. Weaver (court appointed), Donna, Tex., for defendant-appellant Maldonado.
Anthony J. P. Farris, U.S. Atty., James R. Gough, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.
Before WISDOM, THORNBERRY and CLARK, Circuit Judges.
PER CURIAM.


1
The appellants, Bernardo Rodriguez Reinosa and Jose Rodriguez Maldonado were found guilty by a jury on two counts of knowingly transporting marihuana which had been illegally imported into the United States in violation of 21 U.S.C. 176a and on one count of possessing marihuana without having paid the transfer tax in violation of 26 U.S.C. 4744(a)(2).


2
In view of the Supreme Court's holding in Leary v. United States, 1969, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, Part I, the conviction under 26 U.S.C. 4744(a)(2) cannot be sustained.


3
The district court charged the jury upon the statutory presumption growing out of the possession of marihuana provided for in 21 U.S.C. 176a.  For this reason, the convictions under this section cannot be sustained in the present posture of the case.  Leary, Part II.  The possibility remains however that upon retrial, convictions may be obtained for violation of 176a.  The only effect of Leary upon this section was the invalidation of the presumption arising from possession.


4
The appellants contend that all counts of the indictment should be dismissed on the ground that the warrantless border search was unconstitutional.  This argument has been previously advanced to this Court in United States v. Briones, 5 Cir. 1970, 423 F.2d 742; and Ramirez v. United States, 5 Cir. 1959, 263 F.2d 385.  In light of those cases we hold that the search of the appellant's automobile and seizure of the marihuana was not unconstitutional.


5
The decision of the district court admitting into evidence the seized marihuana is affirmed.


6
The case is reversed and remanded for retrial on counts 1 and 2 of the indictment and dismissed as to count 3.

