Arellanes v. United States

• Decision Date: 23 April 1962
• Docket Number: No. 17527.,17527.
• Citation: 302 F.2d 603
• Parties: Alfredo Delgado ARELLANES and Geneva Arellanes, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

302 F.2d 603 (1962)

Alfredo Delgado ARELLANES and Geneva Arellanes, Appellants, v. UNITED STATES of America, Appellee.

No. 17527.

United States Court of Appeals Ninth Circuit.

April 23, 1962.

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Sol S. Judson, Pittsburg, Cal., for appellant; Henry Muller, Oakland, Cal., of counsel.

Cecil F. Poole, U. S. Atty., Laurence E. Dayton and Jerrold Ladar, Asst. U. S. Attys., San Francisco, Cal., for appellee.

Before ORR, HAMLIN and MERRILL, Circuit Judges.

ORR, Circuit Judge.

Appellants, husband and wife, stand convicted of violations of 21 U.S.C.A. §§ 174 & 176a. They claim that their convictions should be reversed because: 1) the evidence is insufficient to support the verdicts; 2) they were denied the full assistance of counsel which the Constitution and laws of the United States guarantee them; and 3) the court incorrectly and inadequately instructed the jury.

We conclude that insofar as Mrs. Arellanes is concerned the evidence is insufficient. That conclusion does not extend to Mr. Arellanes. We recite the facts.¹

In the latter part of February, 1961, Mr. Arellanes rented a flat at 1039 Page Street, San Francisco. He and his wife left the area almost immediately, returning about two weeks later, at which time they spent several days at the flat before again departing. During their stay at the flat they received from the landlady a rent receipt and an extra key. Sometime prior to March 13, this extra key was given to one John O'Rourke, a man whose acquaintance Mr. Arellanes had made during a confinement at San Quentin on a California narcotics conviction.

Prior to the Arellanes' return from their second trip, narcotics agents arrested the said O'Rourke. He undertook to cooperate with the agents and led them to the Page Street flat to "surrender some narcotics." The heroin and marijuana discovered there on March 13, 1961, in a dresser drawer in the bedroom was the subject matter of two counts of the charge against the Arellanes.

O'Rourke then told the agents that he was expecting another quantity of narcotics to arrive from Los Angeles in the next few days and that these would be in the door panel or under the seat of the auto in which they were being carried. On the morning of March 17, 1961, an auto driven by Mr. Arellanes appeared in front of the Page Street flat. With Mr. Arellanes were his wife, their young infant, and one Mrs. Dolores Benton, whom the Arellanes had picked up a short time before as they passed through the Mission District of San Francisco. The narcotics agents promptly arrested the Arellanes and Mrs. Benton and made a search of the car. The search turned up approximately forty pounds of marijuana behind and beneath the rear seat, and a quantity of heroin in a shaving kit on top of the Arellanes' personal effects on the back seat. These drugs were the subject matter of the other two counts of the charge against the Arellanes.

Subsequent to the arrest, one of the narcotics agents sought the cooperation of Mr. Arellanes in tracking down other persons associated with the narcotics traffic. Mr. Arellanes said he might help, but would have to go to Los Angeles and Mexico to do so. When the agent indicated that this would be impossible, the discussion was terminated, but not until Mr. Arellanes had allegedly named his "source" of narcotics. Mr. Arellanes denied the whole conversation. At about the same time, Mrs. Arellanes was reported to have said to Mrs. Benton something to the effect that "I'll bet you didn't know you were sitting on fifty pounds of weed."

On the basis of this evidence, Mr. Arellanes was convicted on all four counts, and Mrs. Arellanes was convicted on the counts related to the drugs found in the car, but was acquitted on those respecting the drugs discovered in the flat. After preliminary investigation, Mrs. Benton had been discharged from custody and was not prosecuted.

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.²

This court has on many occasions passed upon the meaning of the word "possession" as used in 21 U.S.C.A. §§ 174 & 176a. The meaning as defined in the cases is a "dominion and control * * * so as to give power of disposal" of the drug. Rodella v. United States, 286 F.2d 306, 311, 312 (9th Cir. 1960). Thus, an ability to produce the drug, even through the use of agents, will permit an inference of possession by the principal. Hernandez v. United States, 300 F.2d 114 (9th Cir. 2/9/62, No. 17482). Such possession can thus be constructive and need not be exclusive, but may be joint. Gallegos v. United States, 237 F.2d 694, 697-698 (10th Cir. 1956). 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. Evans v. United States, 257 F.2d 121 (9th Cir.) cert. denied, 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99 (1958); People v. Antista, 129 Cal.App. 2d 47, 276 P.2d 177 (1954). On the other hand, mere proximity to the drug,³ mere presence on the property where it is located,⁴ or mere association, without more, with the person who does control the drug or the property on which it is found,⁵ is insufficient to support a finding of possession. Applying these criteria to the instant case, we find that Mrs. Arellanes' connection with the drugs is not shown to go beyond the enumerated insufficiencies.

The evidence, viewed most strongly for the government, establishes: 1) that Geneva Arellanes is married to Alfredo Arellanes; 2) that she stayed with him for a time at the apartment where narcotics were subsequently found; 3) that she accompanied her husband on the trip and was with him in the car in which other narcotics were found; 4) that she made an idle reference to the narcotics in a remark to Mrs. Benton subsequent to the arrest and search and after a disclosure of marijuana in the car had been made to everyone present. On the basis of this, the government states that, "Where the narcotics were, there also was Geneva Arellanes." We cannot view this as a conclusively incriminating circumstance because the presence of the narcotics is also exactly coincidental with the presence of her husband, and Mrs. Arellanes' presence with both is as fully explained by her attachment to her husband as it might be by a control over the drugs. These facts might indeed be said to establish that part of the charge related to facilitation of transportation, but they cannot show the possession or control which the government must establish to raise the presumption of guilty knowledge. There was, we point out, no showing here of the elements of joint venture, as in Eason v. United States, 281 F.2d 818, 821 (9th Cir. 1960).

The equivocal position of Mrs. Arellanes with respect to control over the drugs is to be contrasted with what the evidence shows to be the position of her husband. In every instance in the record where reference is made to the control and direction of the auto, Mr. Arellanes is shown to have had that direction and control. According to his own testimony, he loaned out the car for a fairly extended period on his own authority while he and his family were in Los Angeles. During that period he rented and operated another car. During the trip from Los Angeles to San Francisco he operated the vehicle and was in control of it when it appeared at the Page Street flat. Thus, Mr. Arellanes is shown to have been in exclusive control and dominion of the vehicle throughout the relevant period. This factor, as we have had occasion to say before, "is a potent circumstance tending to prove knowledge of the presence of the narcotics, and control thereof." Evans v. United States, 257 F.2d 121, 128 (9th Cir.), cert. denied, 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99 (1958).

Inasmuch as we have concluded that there is sufficient evidence upon which to base a finding of possession by Mr. Arellanes of the drugs in the auto, it is unnecessary to further review the evidence on the possession of the drugs found in the flat because appellant received concurrent sentences. See Lawn v. United States, 355 U.S. 339, 359, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958), Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1929). However, other points remain.

Appellant contends that O'Rourke, who was incarcerated at the time of trial, should have been called to testify by the government. Certain statements alleged to have been made by O'Rourke were brought out during appellant's cross-examination of the narcotics agents, and government counsel referred to them in his argument to the jury. Appellant argues, first, that the statements were all hearsay and thus should have been excluded. Appellant also urges that the government's failure to call O'Rourke raises strong inferences against its case. In what respect this prejudices appellant is not made clear.

On the hearsay aspect, McAdams v. United States, 74 F.2d 37 (8th Cir. 1934), cited by appellant, is not in point. That case merely holds that the government cannot itself elicit hearsay testimony over the timely objection of a party. Here, quite to the contrary, appellant himself elicited the questioned testimony. He now claims ignorance of the rules of evidence and says that the trial court should have intervened on its own motion to protect him from this "folly." The record makes clear, however, that far from being "folly," this testimony was sought as a part of a calculated design of appellant to weaken the government's case by attempting to show that it rested not on the government's own knowledge or investigation, but on the trumped-up story of an interested and unreliable informer. This was the...