Bettis v. United States

• Decision Date: 27 February 1969
• Docket Number: No. 22532,22532
• Citation: 408 F.2d 563
• Parties: James Stewart BETTIS and Robert Edward Nelson, III, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

408 F.2d 563 (1969)

James Stewart BETTIS and Robert Edward Nelson, III, Appellants, v. UNITED STATES of America, Appellee.

Nos. 22532, 22532-A.

United States Court of Appeals Ninth Circuit.

January 30, 1969.

Rehearing Denied February 27, 1969.

J. Emery Barker, Tucson, Ariz. (argued), for appellant Bettis.

Arthur R. Buller, Tucson, Ariz. (argued), for appellant Nelson.

Philip S. Malinsky (argued), Asst. U. S. Atty., Edward E. Davis, U. S. Atty., Tucson, Ariz., for appellee.

Before JOHNSEN^*, BARNES and DUNIWAY, Circuit Judges.

Rehearing Denied in No. 22532, February 27, 1969.

JOHNSEN, Circuit Judge.

Appellants were convicted on a joint charge of bringing 22 pounds of marihuana into the United States from Mexico in violation of 21 U.S.C. § 176a. We affirm as to appellant Bettis, but reverse as to appellant Nelson.

The marihuana was discovered by customs officers in a routine search of an automobile at the port of entry at Nogales, Arizona, where the car had crossed the border. Bettis was driving and Nelson was riding in the car. Thirteen foil-wrapped packages of marihuana were found under the back seat and the rest in loose form in a gunnysack inside a sleeping bag in the trunk of the car. Both Bettis and Nelson claimed to have no knowledge of the presence of the marihuana.

Bettis had set out from Mazatlan, Mexico, on the day before, purportedly headed for Los Angeles, California, with Nelson and two other youths riding along in the car. None of the three passengers is shown to have had a personal associationship with Bettis at Mazatlan prior to the making of the riding arrangements. All four had however been staying at the beach there, in one of those casual accumulations which seem to spring up among the youth of today. There was available to them at Mazatlan for sleeping purposes "grass sideless houses" and the floor of a "palopa" which they also were permitted to use free.

Bettis had been at Mazatlan about a month, having driven there from Washington, D. C. Nelson had been there about two weeks, having come down from San Francisco, where he was employed in a lithography plant. He claimed to have been riding back with Bettis merely as a means of returning to his job. He testified that he had checked the day before on the cost of air transportation from Mazatlan; found that he did not have enough money left for such fare; was offered the opportunity to ride with Bettis; and chose to do so instead of taking a bus because this would enable him to get back to his job, where he was due, sooner than by bus trip.

The other two occupants of the car are identified in the record as a Craig Hardy, who apparently was from California, and a youth referred to as Steve (no one seemed to know his last name), who apparently was from Arizona. (Nelson testified that he had been unable to locate the whereabouts of either Hardy or Steve.) In such general contacts as had existed among the group at the beach, they appear to have not had much concern about each other's last name. Illustratively, a woman whose name was Mrs. Smith was primarily referred to in the testimony as Cecile. Her testimony similarly was reflective of the indifference on the part of the group to the others' permanent identification. Thus, when she was asked a question in regard to Nelson, she stated that she had not known him by that name.

Mrs. Smith was the mother of four young children which she had with her; she had been at the beach during all of the time that Bettis was there and for a month thereafter; she gave testimony for Bettis, which was taken in deposition form because she was expecting at the time of the trial — some 7½ months after the border event — to give birth shortly to another child.

She seems to have been sort of a hub in the doings and concerns of the members of the group. According to the record, she had on two occasions loaned some money to Bettis; she permitted her car to be used as a depository for the sleeping bags and bed rolls of the members of the group; she helped to feed some of them at various times; it was she who had arranged with Bettis for Nelson, as well as for Hardy and Steve, to ride along in the car (she said she introduced Nelson to Bettis the day before the departure); and she had stood around, said she, observing the loading of Bettis' car on the day of the departure. The purpose of this latter testimony was, of course, to show that she had seen no marihuana put into the car or indication of the presence of any, which she was certain she would have detected if this had been the situation.

We do not deem it necessary to set out all the details gone into on the trial as to the somewhat enigmatic situation involved. A few have been given to indicate the general picture and some others will be recounted in contextual incidence. Bettis testified that he was going to California instead of back to Washington, D. C., because he was concerned about whether a friend of his named Simpson, who had gone with him to Mazatlan, had gotten into and was being cared for in the Veterans Hospital at Los Angeles. Simpson, a Vietnam veteran, had fallen off a cliff at Mazatlan and injured his back and had been taken to Los Angeles two days before by a young married couple who were driving a station wagon in which he could lie down.

Bettis had for several days been attempting to obtain some funds from the American Consul at Mazatlan with which to get his car out of the repair shop and leave Mexico. He finally was given $24.00. On the day of the departure, Bettis with Nelson accompanying him went to round up Steve so they could get under way. They both testified that they found Steve at the restaurant near the palopa; that he had some marihuana at the time and wanted Bettis to let him bring it along as far as the border; that Bettis refused to do so; but that Bettis then agreed that Steve could use the car to drive into Mazatlan and give the marihuana to some friends of his.

While Bettis testified that only Steve had thus gone into Mazatlan, the record does not account for Bettis' own whereabouts during that period. It does indicate, however, without contradiction from Bettis or from any appearing circumstantial incident, that Nelson had had no part in such arrangements as were made between Bettis and Steve; that when he saw that their departure was going to be delayed, he left the scene and went down to the beach to get in some final surfing on a board which he had brought along with him to Mazatlan; and that he did not come back until after the car had returned to the restaurant area.

Nelson further testified that he saw no packages or other indication of the presence of any marihuana and also to the effect that he had no reason to think that any was contained in the car but took it for granted that the marihuana which Steve had possessed had been duly disposed of in the manner which he had heard suggested. Further, the marihuana which was contained in the car was apparently of such dryness and character that it did not give off any odor. The customs officers testified that they had not detected any marihuana odor in the car nor was there anything about the sleeping bag which was indicative to them of the presence of marihuana. Thus, knowledge as a possible probative factor in the situation could hardly be argued to be imputable to Nelson upon the basis that the characterizing odor of marihuana necessarily must have made him aware of the presence thereof in the car.

There existed of course no question in the situation as to the marihuana involved having been illegally brought into the United States in Bettis' car and with his having control thereof. In his undisputed dominion of the car and its use, Bettis would have an apparent responsibility for the marihuana being thus brought across the border. In his right and power to have removed it from the car, he could legally be regarded as having an actual or a constructive possession of the marihuana in relation to the importation made.

On the probativeness which such possession was entitled to be accorded against him under the presumption of Section 176a, this would be "sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury". This legal probativeness could be given application regardless of whether Bettis' possession was actual or constructive in the situation. Quiles v. United States, 344 F.2d 490, 493 (9 Cir. 1965); McClure v. United States, 332 F.2d 19, 23 (9 Cir. 1964); Hernandez v. United States, 300 F.2d 114, 116-119 (9 Cir. 1962).

If the marihuana was Bettis', his possession of it in the car was actual. If he had no interest in the marihuana, he nevertheless was legally in constructive possession of it because of his undisputed dominion over the car and its contents and his right and power to have removed anything therefrom. Only, therefore, if he was without any interest in the marihuana, and if he further did not know that it was in the car, could he be said to have been without legal responsibility to have acted in relation to it before crossing the border. Thus, the minimum basis on which Bettis could contend that his conviction was probatively unsustainable would be that the evidence legally required it to be doubted that he even so much as knew of the presence of the marihuana.

The situation was not, in our opinion, one in which the trial court was required to so hold or the jury to so find. Indeed, the circumstances were such that we think the jury could properly resolve the question of Bettis' guilt upon a level higher than this — that he must have had an interest in the marihuana itself. On the record, the only alternative reasonably arguable against this being the situation was that the marihuana had to be regarded as having exclusively belonged to Steve. The effect of this would be to contend that it could only reasonably be believed that the marihuana consisted of that which Steve...