Diaz-Rosendo v. United States
| Decision Date | 23 August 1966 |
| Docket Number | No. 20501.,20501. |
| Citation | 364 F.2d 941 |
| Parties | Alejandrino DIAZ-ROSENDO and Antonio Daniel Marrero-Perez, Appellants, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Wm. Bryan Osborne, Los Angeles, Cal., for appellants.
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., Phillip W. Johnson, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before JERTBERG and DUNIWAY, Circuit Judges, and CROCKER, District Judge.
Following trial to a jury, appellants were convicted on both counts of a two count indictment. The first count alleged that appellants, hereinafter named Diaz-Rosendo and Marrero-Perez, and one Munoz, and one Murrillo, and other persons to the Grand Jury unknown, agreed and conspired together to commit offenses against the United States, namely: knowingly and with intent to defraud the United States, to import and bring marijuana into the United States from Mexico; to knowingly smuggle and introduce marijuana into the United States without entering and declaring said marijuana as required by law; and to conceal and facilitate the concealment and transportation of marijuana which had been imported into the United States contrary to 21 U.S.C. § 176a. It was also alleged that the defendant, Murrillo, committed the overt act of entering the United States from Mexico in an automobile containing approximately 116 pounds of marijuana.
The second count alleged that Murrillo, with intent to defraud the United States, knowingly smuggled into the United States from Mexico approximately 116 pounds of marijuana and unlawfully imported the said marijuana, and that the appellants and said Munoz knowingly aided, abetted, and procured the commission of the offense. 18 U.S.C. § 2(a).
Only the appellants were involved in the trial. At the conclusion of the government's case, appellants moved the District Court for a judgment of acquittal, which was denied, and at the conclusion of all of the testimony and subsequent to the return of the verdicts of guilty, the motion for acquittal was renewed and was again denied.
Appellant, Diaz-Rosendo, was committed to the custody of the Attorney General for a period of fifteen years, and appellant, Marrero-Perez, was committed to the custody of the Attorney General for a period of five years.
On this appeal, appellants contend that the District Court erred in failing to grant their motions for judgment of acquittal on the ground that the evidence was insufficient to sustain the judgments of conviction, and that the trial court erred in admitting into evidence, as an exhibit, a plastic bag containing a minute quantity of marijuana debris.
The specifications of error require that we review the evidence on which the jury based its guilty verdicts. The facts are not in dispute, and we present the following summary of the evidence which is set forth in the light most favorable to sustain the convictions.
On January 24, 1965, an automobile was searched at the Port of Entry at San Ysidro, California, by a United States Customs Inspector. The inspector found 57 packages concealed in various portions of the vehicle. A Customs chemist testified that certain envelopes contained marijuana, and it was stipulated that those envelopes contained matter taken from the 57 packages.
The vehicle contained three persons, including the driver, Juan Munoz, and two passengers, Thomas Lara Murrillo and Elmira Amador. Munoz had in his pocket a piece of paper containing the name of the Hollywood Center Motel and the name of a street. The glove compartment of the vehicle contained a matchbook with the same street and Hollywood Center name appearing upon the piece of paper.
A Customs agent transferred all but one of the packages to the possession of another officer, left one package in the vehicle, and drove the vehicle to Los Angeles with Thomas Murrillo as a passenger.
In Los Angeles, the agent left the vehicle. A Federal Bureau of Narcotics agent entered the vehicle and proceeded to the Hollywood Center Motel on Sunset Boulevard with Murrillo. They parked in front of the Hollywood Center Motel.
At about 6:20 p. m. on the same day, appellants Diaz-Rosendo and Marrero-Perez were observed by the agent and two Customs agents. Diaz-Rosendo was driving a 1964 Ford. Marrero-Perez was a passenger. Appellants both looked toward the parked vehicle which was facing toward the east, and they were driving in a westerly direction.
About ten miuutes later appellants arrived on foot and walked up to the passenger side of the parked vehicle, where Murrillo was seated. Murrillo said "hello" to both. Appellant Diaz-Rosendo shook hands with Murrillo.
Murrillo asked Diaz-Rosendo, "Have you got the money?" Diaz-Rosendo replied ...
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...participation in a conspiracy.' Accord, United States v. Falcone, 311 U.S. 205, 61 S.Ct. 204, 85 L.Ed. 128 (1940); Diaz-Rosenado v. United States, 364 F.2d 941 (9th Cir. 1966); cf. United States v. Kelton, 446 F.2d 669 (8th Cir. The government further conceded that the May 19 telephone conv......
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