United States v. Zumpano, 25314.

Citation436 F.2d 535
Decision Date23 December 1970
Docket NumberNo. 25314.,25314.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Joseph Anthony ZUMPANO, Jr., Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

COPYRIGHT MATERIAL OMITTED

Arthur Schwartz, Los Angeles, Cal., for defendant-appellant.

Richard K. Burke, U. S. Atty., James M. Wilkes, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

Before DUNIWAY and KILKENNY, Circuit Judges, and PLUMMER, District Judge.*

PLUMMER, District Judge.

On September 30, 1969, appellant (Zumpano) was tried and convicted by a jury in the United States District Court for the District of Arizona of the offense of importation of marijuana in violation of 21 U.S.C.A. § 176a. A timely appeal was taken to this court which has jurisdiction under 28 U.S.C.A. § 1291.

Zumpano denies knowledge of the presence of the marijuana in the car he was driving and suggests that it was secreted therein by someone without his knowledge. The principal question for determination is whether the evidence is sufficient to establish that Zumpano knowingly caused the importation of marijuana with intent to defraud the United States.

This question having been resolved adversely to Zumpano by the verdict of the jury, it is necessary on this appeal to view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Kay v. United States, 421 F.2d 1007 (9th Cir. 1970); United State v. Lopez-Hernandez, 418 F.2d 1243 (9th Cir. 1969).

In March or April of 1969, Zumpano decided to make a trip into Mexico. He owned a 1960 Corvette which he believed was unsuitably low for Mexican roads. For this reason and because of lower operating expenses, he exchanged cars with a friend Steve Teresi, who owned a Volkswagen microbus (VWM) equipped with sleeping and camping facilities.

Zumpano obtained the VWM from Teresi around April 13 or 15, a couple of days before he left for Mexico. He drove into Mexico alone, entering at Nogales. He traveled as far south as Mazatlan and remained in that area for about a week. During this time, the VWM developed serious motor trouble. He did not have enough money for repairs, so he contacted a lady friend, Linda Diane Barton, who agreed to fly to Mazatlan and bring with her the necessary funds. Zumpano and Miss Barton remained in the area of Mazatlan a few days and then drove back to Nogales and crossed the international border at approximately 10:00 a. m. on April 30, 1969.

Zumpano declared no marijuana when questioned by the Custom authorities and was directed to the secondary area. A strong odor of marijuana was present in the VWM. The vehicle contained a plywood box storage space, the top of which had a mattress and blankets for use as a bed. Zumpano was requested to remove the mattress and blankets and he did so. The plywood box had a board running edgewise the length of the bed to give it support in the center. This board formed a blind compartment which could not be entered except by removing a top board. The top boards were fastened by nails but were loose, so Zumpano was asked to finish taking them off. He was provided with a large screwdriver to accomplish this. When this was done, a package containing approximately a pound of marijuana, wrapped in blue cellophane, was found inside the compartment up against the seat towards the driver's side of the vehicle. Zumpano was a journeyman carpenter who did mostly rough carpenter work.

Zumpano testified that Miss Barton did not put the marijuana in the compartment of the VWM. He further testified that he did not. In response to a question as to whether Steve Teresi had put it there, he replied, "That I don't know. It seems to me." He further testified that the locks on the VWM were jammed and would not work, and that he had left it unattended overnight while he hitchhiked into Mazatlan to obtain a mechanic to tow the vehicle in for repairs.

Possession of marijuana may be constructive rather than actual and such possession may support a conviction. Quiles v. United States, 344 F.2d 490, 493 (9th Cir. 1965). Possession may be established by circumstantial evidence. Eason v. United States, 281 F.2d 818 (9th Cir. 1960).

As a part of the court's charge to the jury, the following instruction was given:

"If the evidence in this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable and one of which points to the guilt of the defendant and the other to his innocence it is your duty under the law to adopt the interpretation which will admit of the defendant\'s innocence and reject that which points to his guilt. You will notice this rule applies only when both of the two possible opposing conclusions appear to you to be reasonable. If on the other hand one of the possible conclusions should appear to you to be reasonable and the other unreasonable, it would be your duty to adhere to the reasonable deduction and to reject the unreasonable, bearing in mind, however, that even if the reasonable deduction points to the defendant\'s guilt the entire proof must carry the convincing force required by law to support a verdict of guilty."

The jury in obedience to this and the other instructions given by the court rejected the highly unreasonable possibilities that Zumpano's friend Teresi had placed the marijuana in the VWM without his knowledge prior to his borrowing the vehicle or that some unknown person had secreted a single pound of marijuana in the vehicle while it was left unattended overnight in Mexico. After considering all the evidence, including the testimony of Zumpano, the jury properly inferred that he had knowledge of the presence of the marijuana in the VWM. We hold, under the circumstances in this case, that such inference was justified and that the evidence is sufficient to sustain Zumpano's conviction. Plascencia-Plascencia v. United States, 423 F.2d 803 (9th Cir. 1970); United States v. Gonzalez-Carrillo, 411 F.2d 1057 (9th Cir. 1969); Bettis v. United States, 408...

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13 cases
  • U.S. v. Giese
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 2 Mayo 1979
    ...States v. Fong, 475 F.2d 189, 190 (9th Cir.), Cert. denied, 412 U.S. 942, 93 S.Ct. 2785, 37 L.Ed.2d 402 (1973); United States v. Zumpano, 436 F.2d 535, 539 (9th Cir. 1970). As to the prosecution's use of Wallace's confession, this error did not affect substantial rights. The confession serv......
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    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 17 Noviembre 1978
    ...States v. Perez, 491 F.2d 167, 173 (9th Cir.), Cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974); United States v. Zumpano, 436 F.2d 535, 539 (9th Cir. 1970). The government concedes the remark about the diary was improper. In determining whether this requires reversal, we empl......
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    • United States
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    • 10 Diciembre 1971
    ...The element of knowledge need not be proved from direct testimony, but may be shown by circumstantial evidence. United States v. Zumpano, 436 F.2d 535 (9 Cir. 1970); United States v. Doyal, 437 F.2d 271 (5 Cir. 1971); United States v. Cantu, 437 F.2d 1080 (9 Cir. 1971); State v. Monteith, O......
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    • 28 Febrero 1975
    ...evidence of joint venture with three other occupants, court found driver in "complete control of the car"); United States v. Zumpano, 9 Cir., 1970, 436 F.2d 535 (secret compartment).4 United States v. Seidman, 9 Cir., Sept. 18, 1974, 503 F.2d 1027 (driver, with female passenger drove camper......
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