Covarrubias v. United States, 16361.
| Decision Date | 28 October 1959 |
| Docket Number | No. 16361.,16361. |
| Citation | 272 F.2d 352 |
| Parties | Alfonso Espinoza COVARRUBIAS, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Howard R. Harris, San Diego, Cal., for appellant.
Laughlin E. Waters, U. S. Atty., Robert John Jensen, Los Angeles, Cal., Peter J. Hughes, Elmer Enstrom, Jr., Asst. U. S. Attys., San Diego, Cal., for appellee.
Before STEPHENS and HAMLIN, Circuit Judges, and LINDBERG, District Judge.
Defendant Alfonso Espinoza Covarrubias and his wife Rachel were indicted and charged with smuggling nine and one-half pounds of marihuana into the United States from Mexico at the port of San Ysidro, California, in violation of 21 U.S.C.A. § 176a.1
Both entered pleas of not guilty, but when the case came on for trial on July 29, 1958, Rachel changed her plea to guilty. The trial proceeded as to appellant alone, and he was convicted by the jury and sentenced to imprisonment in accordance with law.
He appealed from the judgment of conviction and from the denial of his motion for acquittal and for a new trial. This court has jurisdiction of the appeal under 28 U.S.C.A. § 1291.
The evidence showed that appellant and his wife Rachel, apparently residents of southern California, returned to the United States from Mexico on March 29, 1958, in a 1955 Buick automobile which was registered to the appellant and his wife. At the border, when questioned, the appellant stated he was bringing no merchandise from Mexico. He was then asked to open the trunk of the automobile, which was locked. Appellant produced a key to the trunk and opened it. The automobile was on a "lookout" list which indicated that it was to be given a special detailed search. Appellant was directed to another inspection area where the spare tire was removed from the automobile and the air let out. The tire was then taken to a gasoline station where it was removed from the wheel and some nine and a half pounds of material, later proved to be marihuana, was removed from inside the tire. The appellant denied knowing anything about the marihuana.
The only specifications of error by appellant are (1) that the evidence was insufficient to support the guilty verdict and (2) that the Court erred in sustaining an objection to a question regarding the narcotics record of a third person.
In addition to the evidence which is set out above and established by government witnesses, the defendant testified as follows: that he entered Mexico from the United States on the early morning of March 29 about 1:00 a. m., accompanied by his wife and two children; that he left his family at a hotel and about 6:00 a. m. went to see his brother in Tiajuana, driving his automobile for that purpose; that at about 7:00 a. m., he and his brother went back to the hotel; that his wife and brother left the hotel, his wife returning about noon time; that in the early afternoon he walked to his brother's house, a distance of about six blocks, and returned to the hotel about 2 or 3 o'clock in the afternoon; and that his wife returned about 4 o'clock in the afternoon, at which time they packed up their things and left for the border. At no time did he testify that on the trip to and from Mexico anyone other than himself had either driven or had a key to the automobile or the trunk compartment.
Appellant contends that there was not sufficient evidence to support the verdict of conviction. We do not agree.
As stated in Evans v. United States, 9 Cir., 257 F.2d 121, 128:
There were ample circumstances in this case to support the verdict that not only did the appellant have possession of...
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