518 F.2d 64 (9th Cir. 1975), 74-3003, United States v. Jones

Docket Nº:74-3003.
Citation:518 F.2d 64
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Abe JONES, Defendant-Appellant.
Case Date:June 06, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 64

518 F.2d 64 (9th Cir. 1975)

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

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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...

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