Aguilar v. United States, 19836.

• Decision Date: 08 July 1966
• Docket Number: No. 19836.,19836.
• Parties: Thomas Mendoza AGUILAR, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

363 F.2d 379 (1966)

Thomas Mendoza AGUILAR, Appellant, v. UNITED STATES of America, Appellee.

No. 19836.

United States Court of Appeals Ninth Circuit.

July 8, 1966.

James M. Hall, Luce, Forward, Hamilton & Scripps, San Diego, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Alan D. Sirota, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, DUNIWAY and ELY, Circuit Judges.

CHAMBERS, Circuit Judge.

Aguilar was caught crossing the border from Tijuana, Mexico, to San Ysidro, California, at the American customs checkpoint while driving another's automobile which had about 98 pounds of marijuana in small packages secreted within it. None were visible without prying. He was charged with smuggling the stuff across the line and with having transported and concealed it. A jury was waived and the district judge found him guilty. A concurrent sentence was imposed for the two counts. We affirm.

The first point on the appeal attacks the sufficiency of the evidence of possession. The car was apparently purchased in the Los Angeles area by one Rolanda Machaka, but we know nothing about him. Aguilar is an automobile mechanic in Tijuana. Apparently his place of business was a street curb. Aguilar took the stand in his own defense. He testified that a Mr. Salvador had been negotiating with him for a couple of days to repair a bad oil pressure condition on the car. Salvador had been introduced to him, he said, by a very casual acquaintance, a Mr. Morales. Eventually it was agreed that Aguilar was to repair the car and also permission was given for Aguilar to take the car and see his cousin in Imperial Beach, California, (some five to seven miles from San Ysidro) about some immigration application proof. Aguilar swore positively he had no knowledge of the presence of the contraband. Of course, the story if accepted would exonerate him. We interpret the trial judge's announcement of decision as meaning that Aguilar had knowledge of the presence (or had reason to believe it) of the marijuana. This is implicit from his remarks that this was another case where the defendant's poverty had led him to accept a small cash offer to drive the contraband across the border.

There was no direct evidence or admission of knowledge. But out of Aguilar's own words, first, his alibi on arrest and, second, his testimony which followed the line of his alibi, the trial judge, in the full setting here, was entitled to believe the story "fishy" and to draw affirmative inferences of knowledge. Details about Salvador and Morales were rather unsatisfactory. Also, the court could have concluded that the story about intending to go to his cousin's house was hand made. We shall not argue our cases and compare them with this one. We do hold he does not come within the facts shown on Mrs. Arellanes in Arellanes v. United States, 9 Cir., 302 F.2d 603. The facts on possession or no possession are quite similar to those in Travis v. United States, 9 Cir., (decided June 14, 1966) 362 F.2d 477. In our view, Eason v. United States, 9 Cir., 281 F.2d 818, 87 A.L.R.2d 842, and Covarrubias v. United States, 9 Cir., 272 F.2d 352, indicate affirmance.

This is not a de minimis quantity case where incidence of error in finding knowledge would be high. Neither is it a passenger case nor a case of divided control over a repository.

Appellant's...