456 F.2d 341 (5th Cir. 1972), 71-1408, United States v. Lowry

Docket Nº:71-1408.
Citation:456 F.2d 341
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Pat D. LOWRY and Arturo Armando Flores, Defendants-Appellants.
Case Date:January 25, 1972
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 341

456 F.2d 341 (5th Cir. 1972)

UNITED STATES of America, Plaintiff-Appellee,

v.

Pat D. LOWRY and Arturo Armando Flores, Defendants-Appellants.

No. 71-1408.

United States Court of Appeals, Fifth Circuit.

January 25, 1972

Lee A. Chagra, El Paso, Tex., for defendants-appellants.

William S. Sessions, U. S. Atty., Ralph E. Harris, Asst. U. S. Atty., El Paso, Tex., for plaintiff-appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

Appellants in this marihuana case were charged in a five-count indictment

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with violations of 21 U.S.C.A. § 176a. 1 The counts may be summarized as follows: Count one-conspiracy; count two-importation by Flores; count three-Lowry aiding and abetting importation by Flores; count four-receiving, concealing and facilitating transportation and concealment after importation by Flores; count five-Lowry aiding and abetting Flores in the conduct charged in count four. 2 The jury convicted appellants on all counts. Flores

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was sentenced to 10 years and Lowry to 5 years.

On or about September 8, 1970 Flores rented a Ford station wagon in El Paso, Texas and drove it into Juarez, Mexico. The next day he returned to El Paso in the station wagon. When he crossed the border returning to Texas, his car was searched in detail as is routine for rented cars. The search revealed only some wet boots and clothing. However, Flores was recognized by a customs official as the same person who had crossed the border two months earlier in the company of one Murphy, a suspected marihuana smuggler. For this reason, or some other not revealed by the record, customs officials decided to follow Flores.

Once in El Paso Flores was under almost constant surveillance. He picked up a $300 money order at Western Union, washed some clothes, registered at a motel, and placed phone calls to Canada, Wisconsin, and California. He also changed cars, leaving the station wagon and continuing his errands in a Dodge pickup, which he apparently acquired at Murphy's residence. On the morning of September 10, Flores was seen again by the observing agents in the Ford station wagon, which now appeared to be heavily loaded. He drove to an El Paso shopping center where he parked and got out of the car. Lowry was parked in a 1962 Buick a few feet from where Flores left the station wagon. Flores got into Lowry's car and the pair drove away. Shortly thereafter they were arrested by customs agents. Subsequently, a search of the station wagon revealed 625 pounds of marihuana.

Appellants raise four points on appeal: (1) The evidence on all counts was insufficient; (2) the search of the station wagon and the arrest were illegal; (3) 21 U.S.C.A. § 176a is unconstitutional; and (4) the trial court instructed a guilty verdict.

I. The evidence

Lowry was convicted of conspiring with Flores and with persons unknown. Count one of the indictment, 3 which sets out fourteen overt acts alleged to show a conspiracy, names Lowry only twice.

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13. On September 10, 1970, PAT D. LOWRY, JR., met with ARTURO ARMANDO FLORES on the parking lot of the Coronado Shopping Center in El Paso, Texas.

14. On September 10, 1970 PAT D. LOWRY, JR., driving a 1962 Buick automobile, picked up ARTURO ARMANDO FLORES at the parking lot of the Coronado Shopping Center in El Paso, Texas, and proceeded south on Mesa Street in El Paso, Texas, with ARTURO ARMANDO FLORES.

Lowry was also convicted of aiding and abetting the importation of marihuana (count three) and of aiding and abetting concealment and transportation of marihuana illegally imported (count five). 4 The Government's evidence on counts three and five was the same used on count one, namely, that when Flores parked his station wagon Lowry was either waiting or immediately drove up to a point a few feet away, and the two then drove off together.

Upon a challenge to the sufficiency of the Government's evidence, we must sustain the verdict of guilty if there is substantial evidence, taking the view most favorable to the Government, to support it. United States v. Glasser, 1944, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, 704. "Substantial evidence" in this context means evidence that a reasonably minded jury could accept as adequate and sufficient to support the conclusion of the defendant's guilt beyond a reasonable doubt. United States v. Barfield, 5 Cir. 1971 [447 F.2d 85]; United States v. Reid, 5 Cir. 1971 [441 F.2d 1089]; United States v. Warner, 5 Cir. 1971, 441 F.2d 821.

United States v. Harper, 5th Cir. 1971, 450 F.2d 1032. We find the record in the instant case devoid of "substantial evidence" that Lowry conspired with Flores or anyone else to import marihuana or aided and abetted the smuggling and transportation of marihuana. Prior to the parking lot rendezvous, the eight to ten customs agents following Flores had never seen nor heard of Lowry and had no reason to suspect him of criminal activity. Moreover, Lowry did not leave his car when he picked up Flores so there is no reason to believe he even saw the marihuana in the station wagon or knew of its existence. The parking lot meeting is simply too fragile a thread to hang this conviction on. Lowry's motion for acquittal should have been granted.

Turning to Flores, we find insufficient evidence to convict him of conspiracy (count one) or smuggling (count two). Having already concluded the record does not support a Flores-Lowry conspiracy, we must decide if Flores conspired with some third party. The only apparent candidate is one Peter Nier who was cryptically referred to during the testimony of the customs officers. Nier's status was never made clear, but it appears he owned the Dodge pickup that Flores used for part of one day. Whatever his status...

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