Buelna-Mendoza v. United States

• Decision Date: 13 January 1971
• Docket Number: No. 25460.,25460.
• Citation: 435 F.2d 1386
• Parties: Carlos BUELNA-MENDOZA, Defendant and Appellant, v. UNITED STATES of America, Plaintiff and Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

435 F.2d 1386 (1971)

Carlos BUELNA-MENDOZA, Defendant and Appellant, v. UNITED STATES of America, Plaintiff and Respondent.

No. 25460.

United States Court of Appeals, Ninth Circuit.

January 13, 1971.

Richard S. Henderson (argued), San Diego, Cal., for appellant.

Eric Nobles (argued), Asst. U. S. Atty., Harry D. Steward, U. S. Atty., Joseph A. Milchen, Asst. U. S. Atty., San Diego, Cal., for appellee.

Before MERRILL and HUFSTEDLER, Circuit Judges, and BYRNE,^* District Judge.

BYRNE, District Judge:

Appellant Buelna-Mendoza was convicted, in a trial without a jury, on charges of knowingly concealing and facilitating the transportation and concealment of 660 pounds of marihuana which the appellant knew had been imported into the United States contrary to law and of conspiring to commit the foregoing acts, all in violation of 21 U.S.C. § 176a.

At about 11:00 a. m. on August 14, 1969, an informant telephoned Leo Banda, a Special Agent for the Bureau of Customs, and advised him that a red 1964 Chevrolet Malibu, with California license plates, would be carrying a large load of marihuana to Los Angeles. The informant told Banda that the vehicle would reach Los Angeles from Calexico, California, by taking Highway 78 to Blythe, California, and then proceeding west on Highway 10. This circular route was apparently instituted to avoid contact with immigration inspection stations which are situated along the more direct route to Los Angeles. The informant identified the driver as the person who had been pointed out to Banda a week earlier, while he had been under surveillance on a sidewalk in Calexico.

Banda relayed this information, including his own description of the driver, to Special Agents Donald Quick and Sterling Epps. Banda told Quick that Epps would be able to identify the driver because he was the same man who had been pointed out to them a week earlier.¹

At about 2:30 p. m., Epps observed a vehicle which met the informant's description proceeding on Highway 78 approximately two miles north of Ripley, California. Epps followed the vehicle to the outskirts of Blythe where the driver stopped at a gasoline station. The driver was recognized by Epps as the man he had seen the previous week in Calexico and as the individual who matched Banda's description.

When the vehicle left the service station and headed from Blythe to Los Angeles, Epps radioed Special Agent Owen Miller, who had been stationed along the projected route, and informed him of all he had observed. At about 3:45 p. m., Miller stopped the appellant's vehicle at Chiciaco Summit, which is approximately fifty miles west of Blythe. Miller was immediately joined by Agent Epps and a California Highway Patrolman. A search of the automobile's trunk resulted in the finding of 300 kilo bricks of marihuana. The appellant was identified as the driver of the vehicle.

The appellant testified in his own defense. According to the appellant he resided in Mexicali where he worked in a gin mill. However, when asked on cross-examination about the cars he had driven to Los Angeles, he said he was in the business of buying and selling cars in Tijuana and Los Angeles during the past four months. He further testified that on August 14, 1969, he was approached by two men who offered him $70 to drive the automobile in question from Calexico to Los Angeles. Although he considered the men to be strangers, the appellant knew one of the men was named "Huero". The appellant suspected the trunk contained contraband, because he was aware of the "heavy weight in the rear". The appellant chose not to investigate his suspicions by opening the trunk.

None of the three arguments advanced by appellant requires reversal. His first contention is that the Government failed to produce any evidence that the marihuana discovered in the trunk of the automobile which he had been driving had been imported into the United States. Our review of the record convinces us that the Government presented sufficient evidence to support the holdings of the trial court that the marihuana had been illegally imported and that the appellant knew of the illegal importation.

The vehicle which the appellant drove from Calexico had been observed by Agent Miller on the morning of August 14, 1969, parked in the customs brokers' lot, just west of Calexico port of entry. The lot is approximately fifty feet from the international border. Agent Miller, who had seen kilo bricks of marihuana packaged from Mexico on numerous occasions, was of the opinion that the marihuana concealed in the trunk of the automobile which had been driven by the appellant was from that country. Miller based his opinion on the size and form of the kilo bricks as well as the presence of baby powder which covered the bricks. The agent found the baby powder significant because a shipment of marihuana from...