U.S. v. Jones

• Decision Date: 06 June 1975
• Docket Number: No. 74-3003,74-3003
• Citation: 518 F.2d 64
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Abe JONES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 64

518 F.2d 64

UNITED STATES of America, Plaintiff-Appellee, v. Abe JONES, Defendant-Appellant.

No. 74-3003.

United States Court of Appeals, Ninth Circuit.

June 6, 1975.

Frank T. Vecchione, Federal Defender of San Diego, San Diego, Cal., for defendant-appellant.

William A. Bower, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

OPINION

Before TRASK and WALLACE, Circuit Judges, and PECKHAM, ^* District Judge.

PECKHAM, District Judge:

Upon stipulated facts, appellant was found guilty by the court sitting without a jury of conspiracy to import and importation of 19 grams of heroin, in violation of 21 U.S.C. §§ 952, 960 and 963.

Appellant contends, first, that the heroin upon which his conviction was based was found by means of an unlawful vaginal search of his female companion, and second, that the evidence was insufficient for the court to conclude beyond a reasonable doubt that defendant had knowledge of the presence of the heroin or control over the heroin secreted in the vagina of the passenger in his automobile.

We need not reach the merits of the search, since it is settled law in this circuit that a person in appellant's position lacks standing to object to the body search of his co-defendant. Appellant lacks actual standing because the search did not intrude upon his privacy. Furthermore, so called " 'automatic' standing" ¹ is not conferred upon appellant where, as here with the conspiracy to import and importation charges, possession at the time of the search is not an essential element of the crime charged. United States v. Boston, 510 F.2d 35, 38 (9th Cir. 1974); United States v. Valencia, 492 F.2d 1071, 1074 (9th Cir. 1974).

Appellant also maintains that his conviction for conspiring to import and importing heroin cannot stand because the evidence was insufficient as a matter of law for the court to conclude beyond a reasonable doubt that he had knowledge of the presence of heroin in the vagina of the passenger in his automobile or had any control over that heroin.

Appellant was driving an automobile with a Miss Turner as passenger across the border between the United States and Mexico. The automobile, Miss Turner and the appellant were searched. No narcotics were found in the automobile or on the person of appellant. After a protracted searching procedure, the heroin upon which defendant's conviction is predicated was found in a condom secreted in Miss Turner's vagina.

In passing on a challenge to the sufficiency of the evidence, this court must determine "whether the evidence, considered most favorably to the government, was such as to permit a rational conclusion by the (trier of fact) that the accused was guilty beyond a reasonable doubt." United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969). This court has the benefit of a considerable body of Ninth Circuit authority to assist in applying this standard to the present factual situation. Many cases have considered the question of the amount of evidence necessary to link contraband found in an automobile with a defendant who did not possess the contraband but was the driver of or a passenger in the automobile at the time of seizure. While each factual situation differs, a pattern emerges from examination of the cases, which are exhaustively reviewed in United States v. Martinez, 514 F.2d 334 (9th Cir. 1975).

In Arellanes v. United States, 302 F.2d 603 (9th Cir. 1962), in the course of reviewing the sufficiency of the evidence to sustain a conviction for importing narcotics, the court set out the analytical framework:

In its prosecution of this case, the government relied exclusively upon the statutory inference of knowledge of illegal importation which the jury is permitted to draw whenever it is shown that a defendant has or has had possession of narcotic drugs, and does not explain that possession to the satisfaction of the jury.

This court has on many occasions passed upon the meaning of the word "possession" . . . The meaning as defined in the cases is a "dominion and control . . . so as to give power of disposal" of the drug. . . . Proof of exclusive control or dominion over property on which contraband narcotics are found is a strong circumstance tending to prove knowledge of the presence of such narcotics and control thereof. . . . On the other hand, mere proximity to the drug, mere presence on the property where it is located, or mere association, without more, with the person who does control the drug or the property on which it is found, is insufficient to support a finding of possession. ²

Murray v. United States, 403 F.2d 694 (9th Cir. 1968) involved a fact situation quite similar to the present one. Johnnie and Lonnie Murray were brothers both convicted of smuggling and concealing heroin. The brothers went to Tijuana together, returning to the port of entry at 8:00 p. m. the same day. Lonnie was driving the car. They both indicated to the border inspector that they were citizens of the United States and that they had purchased nothing in Mexico. Both were searched. No contraband was found on Lonnie, the driver. On Johnnie, the inspector found two rubber contraceptives containing heroin tied with a string around the biceps of his left arm. Both men were arrested and subsequently convicted.

On appeal, the conviction of Johnnie was affirmed; the conviction of Lonnie was reversed for insufficiency of the evidence. The court noted that the government had to prove that Lonnie received or concealed, or facilitated Johnnie's transportation or concealment of the heroin, that the heroin had been imported contrary to law, and that Lonnie had knowledge of the illegal importation. Lonnie was not in actual possession of the contraband. In reviewing the law, the court noted that he would have been in constructive possession of the heroin if he had personally shared custody of it or had such dominion and control over the drug as to give him the power of disposition. Johnnie's acts could also be imputed to Lonnie if Johnnie was Lonnie's agent, subject to his control.

The court concluded, however, that the evidence was inadequate to prove Lonnie's constructive possession of the heroin. The court reached this result despite the facts that Johnnie and Lonnie were brothers who maintained a close relationship with each other, that the trip was Lonnie's idea and he paid for the flight from San Francisco to Los Angeles, that Lonnie drove the borrowed car, and that Lonnie may have had a stronger personality than Johnnie. These facts were not sufficient to raise an inference that Johnnie was subject to Lonnie's direction and control, or that they were joint venturers engaged in narcotic activity, or that Lonnie could control the disposition of the heroin concealed on Johnnie's person. The court concluded that the evidence "may give rise to a suspicion that Lonnie was implicated with Johnnie in the importation and concealment of the heroin, but a suspicion, however strong, is not proof." 403 F.2d at 696.

Murray was regarded as controlling and followed in the short per curiam opinion of United States v. Flom, 464 F.2d 554 (9th Cir. 1972), wherein Flom's conviction of importation and knowing facilitation of the importation of heroin was reversed for insufficiency of the evidence.

The Government proved that Flom and his longtime friend Daniel Atkinson went to Mexico together. While separated from Flom, Atkinson purchased heroin and secreted it in his body. The men reentered the United States on foot, and were detained because they were nervous and appeared to be under the influence of drugs. Flom had recent needle marks on his arms, but a strip search was negative. A strip and body search of Atkinson revealed the heroin.

Viewed most favorably to the Government, the evidence does not support a finding that Flom had possession, actual or constructive, of the heroin, or that he knew it was illegally imported. Atkinson had exclusive control of the heroin. The Government's evidence may have given rise to the suspicion, but it did not prove that Flom was implicated with Atkinson in the illegal importation of heroin.

Murray v. United States, 403 F.2d 694, 695-96 (9th Cir. 1968). ³

In United States v. Gardner, ...