U.S. v. Martinez, s. 74-2825

Decision Date28 February 1975
Docket NumberNos. 74-2825,74-2826,s. 74-2825
Citation514 F.2d 334
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Juan Andres Sotelo MARTINEZ, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Randolph STEPHENS aka Randolph Sidle (true name), Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit
OPINION

Before DUNIWAY and ELY, Circuit Judges, and SOLOMON, * District Judge.

DUNIWAY, Circuit Judge:

Martinez and Sidle, who was charged and tried under the name Stephens, were convicted under two counts of an indictment charging them and one Marie Dabney, jointly, with importing 117 grams of cocaine, in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), and with possession of the same quantity with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). Each received concurrent sentences on the two counts. In addition, Sidle was convicted under two counts charging him alone with importing a "measurable quantity" of cocaine, and with possession of the same quantity, in violation of 21 U.S.C. § 844(a). He received concurrent sentences under these counts and these sentences were less than, but made concurrent with the sentences under the two counts involving the 117 grams. Dabney, being a fugitive, was not tried.

I. Facts

Appellant Martinez drove a Lincoln Continental sedan across the border from Mexico to Nogales, Arizona. In the front passenger seat next to him was one Julia Davis. In the back seat were appellant Sidle on the left behind Martinez, and Dabney on the right behind Davis. The car was searched at the border customs and immigration station. In a facial tissue box on and in the center of the dashboard agents found a "ziplock" plastic bag containing 117 grams of cocaine. In Sidle's pocket they found a small gilt or gold cocaine spoon on a gold or gilt chain. The spoon, which is very small, appeared to have a residue on it. The car was leased to Dabney; it was not the usual rental agency car. Davis had $1,000 in cash on her person. When asked about the spoon, Sidle said that it was Dabney's. Dabney said that the spoon was hers, that she did not want to see the other three go to jail and was willing to take the blame, and that she loved cocaine. Neither Martinez nor Sidle admitted knowledge that cocaine was in the car.

No fingerprints were taken from the plastic bag containing the cocaine or from the facial tissue box. A government chemist testified that "it appeared that there was something on the bowl of the spoon" but that it was not possible to "make out what it was" until it was placed under a microscope. The chemist also testified that "an inexperienced person glancing briefly at something like that, not knowing what to expect, probably would not readily distinguish there was something there. If someone who is familiar with things like this, for whatever they are more or less generally thought to be used for, inexperienced (sic experienced?) in working with things like that, and were suspected prohibited or controlled materials, there was enough there that an experienced person would in a brief examination be able to detect that there were things there." In order to determine what the residue on the spoon was, the chemist rinsed it off the spoon and employed chemical tests. He did not determine the amount of material on the spoon. He testified that there was less than one-tenth of a gram (less than 1/280th of an ounce), but did not say how much less.

Sidle did not take the stand, but Martinez did. Martinez's story was that Sidle, whom he had known for about three months, and the two women, whom he had never met, came to his house and asked him to go to Mexico as their chauffeur and translator. Martinez speaks fluent Spanish. The object of the trip was to "party" for a couple of weeks, with Dabney and Davis "treating." On cross-examination, Martinez said that for the entire "few days" while the four were in Mexico until the day they were arrested, they were together. However, he claimed that on that day the four of them were in a Canal Street bar drinking when the two women asked for the car keys and left. He said that they left at about noon and returned at about one or one-thirty (p.m.), and asked Martinez and Sidle to take them back to the United States. According to Martinez, the four then left the bar and "rode around town for a little bit more and then from there we went out to the border." Asked at what time they arrived at the border, Martinez replied that "(i)t was pretty dark. It was getting dark. I guess we got to the border about 4:00 or 3:00 o'clock." Martinez also admitted that he had once tried cocaine "about three years ago" but said that he hadn't liked it and had returned to drinking. However, he denied familiarity with the appearance of cocaine. On cross-examination, he admitted that he knew that cocaine "looks like sugar" and is a "white powder."

II. Martinez's Appeal (No. 74-2825)
A. Denial of motion for acquittal when the government rested.

Martinez argues that it was error to deny his motion for a directed verdict of acquittal following the close of the government's case, because there was no evidence of his knowledge that the cocaine was in the car. However, Martinez elected to proceed with the presentation of proof in his own behalf and thereby waived his right to challenge the denial of this motion on appeal. United States v. Figueroa-Paz, 9 Cir., 1972, 468 F.2d 1055, 1058-59; United States v. Lewis, 9 Cir., 1970, 426 F.2d 266, 267; Benchwick v. United States, 9 Cir., 1961, 297 F.2d 330, 335.

B. The aiding and abetting instruction.

Martinez claims that it was error for the judge to give an aiding and abetting instruction because aiding and abetting was not specifically charged in the indictment. He is wrong. United States v. Roselli, 9 Cir., 1970,432 F.2d 879, 895, n. 27.

C. Sufficiency of the evidence.

Martinez argues that the evidence is insufficient to support the verdicts of conviction. The case is a thin one. We have found no decision of ours affirming a conviction on facts as weak as these. On the other hand, we have found none reversing on similar facts.

1. Inferring knowledge from the fact of driving the car.

Running through a number of our recent cases, many of them short per curia, are statements substantially like the following:

This court has held that when one drives a car laden with contraband, there is a substantial basis from which the trier of fact may infer that the driver has knowing possession of the contraband. United States v. Zamora-Corona, 9 Cir., 1972, 465 F.2d 427, 428 (per curiam).

On its face this appears to be an easy "bright line" rule of law, dispositive of Martinez's argument. However, a review of our cases shows that the rule is based on the idea that a driver exercises dominion and control over his vehicle and its contents, from which dominion and control "knowing possession" of the contraband that it contains may be inferred. The facts of our cases fall into four categories: those in which the driver was the only occupant of the vehicle, 1 those in which the driver was the owner of the vehicle, 2 those in which the driver had borrowed the vehicle from someone not present in the car at the time of the arrest, 3 and those in which, for some other reason, it could be said that the driver was in complete control of the vehicle. 4 Sometimes, as might be expected, these categories overlap. 5

Here the only circumstance tending to indicate that Martinez controlled the car was the fact that he was driving. "Title" to the car, as lessee, was in Dabney's name, not Martinez's name, and Martinez, at 21, was significantly younger than the other occupants. Dabney was 33 and Sidle was 42. Davis, the fourth occupant, had a thousand dollars in cash, which apparently was what the group was subsisting on. No significant amount of cash was found on Martinez or Sidle, and Martinez was apparently unemployed. It is a dubious proposition to say that the driver has dominion and control of the car and its contents on these facts, and that therefore knowing possession can be inferred.

Most of the cases cited in the previous footnotes also involved concealment of contraband in secret compartments, locked trunks, beneath or behind seats, or in other more or less elaborate hiding places in the physical structure of the vehicle. Where such a vehicle is stopped and contains other passengers, it is reasonable to infer that it was the driver, when he had control of the car before the trip, who did the preparation necessary for the concealment. But where the contraband is found on the person of a passenger, or in a loose object like a tissue box, not obviously in anyone's possession, no such preparation is necessary, and the inference of the driver's knowing possession from his control of the car seems substantially less reasonable, especially, as here, when there are three other passengers in the car.

In Murray v. United States, 9 Cir., 1968, 403 F.2d 694, two brothers had gone to Mexico in a borrowed car. Lonnie was driving, and at the border upon their return to the United States, heroin was found secreted on Johnnie's person. The trip had been Lonnie's idea and there was some indication that he had a stronger personality than Johnnie and might even dominate him. Nevertheless, we reversed Lonnie's conviction on the ground that he was not in constructive possession of the contraband because "he had (not) personally shared custody of (the drug) or had such dominion and control over the drug as to give him the power of disposition." Id. at 696. 6 The difference between Murray and the case at bar is that the contraband was not found on a passenger's person, but in a loose object accessible to all the occupants but within the unambiguous dominion and control of none....

To continue reading

Request your trial
56 cases
  • State v. Coleman
    • United States
    • Connecticut Court of Appeals
    • July 26, 1988
    ...may provide at least a partial basis for a jury's conclusion that the opposite of the testimony is the truth." United States v. Martinez, 514 F.2d 334, 341 (9th Cir.1975), and cases cited therein. Indeed, the language of the trial court's charge in the case before us appears to have come di......
  • U.S. v. Kenny
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 8, 1981
    ...that if disbelieved, the trier of fact may conclude that the opposite of his testimony is the truth. See, e. g., United States v. Martinez, 514 F.2d 334, 341 (9th Cir. 1975); United States v. Chase, 503 F.2d 571, 573 (9th Cir. 1974). Coupled with the independent evidence presented, Oelberg'......
  • USA v. WRIGHT
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • November 4, 2010
    ...district court may support any disbelief it has of any witness' testimony by noting the lack of a recording. Cf. United States v. Martinez, 514 F.2d 334, 341 (9th Cir.1975) (explaining that “in certain restricted circumstances” a witness' story might be so implausible that “disbelief of tes......
  • State v. Perkins
    • United States
    • Connecticut Supreme Court
    • September 28, 2004
    ...States v. Wetzel, 514 F.2d 175, 177 (8th Cir.), cert. denied, 423 U.S. 844, 96 S.Ct. 80, 46 L.Ed.2d 65 (1975); United States v. Martinez, 514 F.2d 334, 337 (9th Cir.1975); United States v. Boss, 671 F.2d 396, 401 (10th Cir. 1982); United States v. Contreras, 667 F.2d 976, 980 (11th Cir.), c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT