COUNT 2 MUST BE DISMISSED AS IT VIOLATES THE FIFTH AMENDMENT

Count 2, charging unlawful importation of merchandise in violation of 18 U.S.C. § 545, requires proof that the importation be undertaken "contrary to law." Olais-Castro v. United States, 416 F.2d 1155, 1158 (9th Cir. 1969). That element must be defined in relation to another statute. Id. Here, the government has chosen to allege that Ms. * failed to declare the marijuana in the van for inspection as required by 19 U.S.C. § 1461. In short, an element of Count Two is based upon Ms. *'s failure to admit that she possessed marijuana when she entered the United States on October 23, 1996.

The Fifth Amendment prohibits the government from basing criminal liability upon a defendant's failure to incriminate herself. Haynes v. United States, 390 U.S. 85 (1968), Marchetti v. United States, 390 U.S. 39 (1968), United States v. Sher, 421 F.2d 784 (9th Cir. 1970). If Ms. * were to be required to admit that she possessed marijuana at the border, she would clearly incriminate herself as to federal possession charges, see 21 U.S.C. §§ 841 and 844, and federal importation charges, see 21 U.S.C. §§ 952 and 960, as well as various California state drug charges. See, e.g., Health & Safety § 11360 (transportation and importation of marijuana).

In Sher, the Ninth Circuit the defendant had been convicted of receiving and possessing a firearm in violation of 26 U.S.C. § 5851, which had been transferred in violation of 26 U.S.C. § 5814. Section 5814 required registration of the firearm. The firearm was a machine.

Sher held that the requirement that Sher register the firearm was compelled self-incrimination because he would be required to admit his violation of state law by possessing the machine gun. 421 F.2d at 785-86. In so holding, Sher rejected the government's argument that the defendant could avoid self-incrimination problems by foregoing the unlawful conduct: "The question is not whether petitioner holds a 'right' to violate state laws, but whether, having done so, he may be compelled to give evidence against himself." Id. at 785 (quoting Marchetti, 390 U.S. at 785) (internal quotations omitted).

Here, Ms. * has a much stronger case. While Sher involved a somewhat speculative claim that information he provided to federal authorities -- which at that time would not incriminate him on a federal offense -- would be turned over to Washington state law enforcement, id. at 785-86, the government now claims that Ms. * was required to confess directly to the entity most likely to prosecute her. Because her claim of compelled self-incrimination is much stronger than that in Sher, Count 2 must be dismissed.

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