Hernandez v. United States, 20884.

• Decision Date: 14 December 1966
• Docket Number: No. 20884.,20884.
• Citation: 370 F.2d 171
• Parties: Ruben HERNANDEZ, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

370 F.2d 171 (1966)

Ruben HERNANDEZ, Appellant, v. UNITED STATES of America, Appellee.

No. 20884.

United States Court of Appeals Ninth Circuit.

December 14, 1966.

Frank Duncan, Los Angeles, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Chief Asst. U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief, Crim. Div., Burt S. Pines, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and KOELSCH, Circuit Judges, and THOMPSON, District Judge.

KOELSCH, Circuit Judge.

Appellant was found guilty by a jury of the crime of concealing and facilitating the transportation and concealment of heroin (21 U.S.C. § 174) as charged in a one count indictment.

On this appeal he does not dispute the fact that at the time of his arrest for drunken driving the officers, pursuant to the incidental search of his automobile, discovered several packages containing heroin beneath the front seat. His sole assignment is that the trial judge erred in permitting the government on its case in chief to introduce evidence, over objection, that approximately five months earlier heroin similarly packaged was found in the trunk of his automobile under the floor mat.

The statute renders unlawful the concealment etc. of heroin known to have been unlawfully imported into the United States and makes proof of possession of the drug sufficient evidence to authorize a conviction unless the defendant explains the possession to the satisfaction of the jury. Here the evidence was admitted, under the judge's limiting instruction to the jury, solely upon the issue of defendant's knowledge and intent on the crime charged. In presenting its case, the government relied upon the statutory presumption and was thus obliged to establish that the possession was a knowing one. Evans v. United States, 257 F.2d 121 (9th Cir. 1958), cert. denied, 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99 (1958). That this evidence was susceptible of such an inference can hardly be questioned for the automobile belonged to the defendant, had been recently operated by him, and was subject to his control. Thus, in Eason v. United States, 281 F.2d 818, 820 (9th Cir. 1960), this court quoted with approval the following language contained in Evans, 257 F.2d at p. 128: "proof that one had exclusive control and dominion over property on or in which contraband narcotics are found is a potent circumstance tending to prove knowledge of the presence of such narcotics, and control thereof."

The earlier incident was wholly unconnected with the crime charged and should not have been disclosed if it tended to prove nothing more than the defendant's bad character. Enriquez v. United States, 314 F.2d 703 (9th Cir. 1963). However, it was probative on the issue of knowledge of the defendant in connection with the crime here for it increased the probability that it was he who had put the narcotics in the car. Reid v. United States, 334 F.2d 915 (9 Cir. 1964); 2 Wigmore, Evidence § 301, at 193 (3d ed. 1940).

Nor was the evidence rendered inadmissible under the doctrine of res judicata because of the defendant's acquittal of a similar charge involving this same evidence. We are fully aware that "that doctrine applies to criminal as well as civil proceedings (citations omitted) and operates to conclude those matters in issue which the verdict determined though the offenses be different." Sealfon v. United States, 332 U.S. 575, 578, 68 S.Ct. 237, 239, 92 L.Ed. 180 (1948). But this record discloses nothing more than the fact of acquittal. That verdict was general and there is no way to ascertain its basis. As was well said long ago by the California Supreme Court:

"In order to render the verdict and judgment of not guilty upon the draft offered in evidence conclusive upon the facts which the prosecution sought to prove for the purpose of showing guilty knowledge, it must appear with certainty from the evidence offered in support of the alleged estoppel that those facts were directly and necessarily found by the verdict in that case in favor of the defendant; or, in other words, that the jury could not have found the verdict which they did without having passed directly upon the facts offered to be proved and found them against the prosecution; for if it be doubtful upon which of several points the verdict was founded, it will not be an estoppel as to either. * * No evidence as to the estoppel, either by the record or by parol, was offered and the whole question as to what facts were directly determined in the first case is to be determined upon the bald admission of the District Attorney that the defendant had been indicted for forging the endorsement upon the draft in question and for uttering the draft knowing the endorsement to be forged and that he had been tried upon such indictment and found not guilty by the jury. * * *"

People v. Frank, 28 Cal. 507 (1865); accord, State v....