Eason v. United States, No. 16708.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: CHAMBERS, STEPHENS and MERRILL, Circuit
• Citation: 281 F.2d 818
• Parties: Robert Lewis EASON and Kenneth Lamoyne Nowlin, Appellants, v. UNITED STATES of America, Appellee.
• Docket Number: No. 16708.
• Decision Date: 07 September 1960

281 F.2d 818 (1960)

Robert Lewis EASON and Kenneth Lamoyne Nowlin, Appellants,
v.
UNITED STATES of America, Appellee.

No. 16708.

United States Court of Appeals Ninth Circuit.

July 18, 1960.

Rehearing Denied September 7, 1960.

281 F.2d 819

Howard R. Harris, San Diego, Cal., for appellant Nowlin.

William F. Gavin, San Diego, Cal., for appellant Eason.

Laughlin E. Waters, U. S. Atty., Robert J. Jensen, William Andersen Dougherty, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS, STEPHENS and MERRILL, Circuit Judges.

MERRILL, Circuit Judge.

Narcotics were found secreted in appellants' car. Appellants denied knowledge of the presence of the narcotics and established the possibility that they could have been secreted by others without knowledge of appellants. Under the circumstances, could the jury properly infer from the presence of the narcotics that appellants had knowledge of such presence? We hold, under the circumstances of this case, that such inference was available.

281 F.2d 820

This appeal is taken from judgment of conviction of the crime of illegal importation into the United States of marihuana (21 U.S.C.A. § 176a) and of seconal and amphetamine tablets (18 U.S.C. § 545). Each cited section renders unlawful importation "knowingly" and with "intent to defraud the United States." Each section provides that possession shall be deemed sufficient evidence to authorize conviction unless explained to the satisfaction of the jury. Possession, however, must be such as to establish both control over the subject and knowledge of its presence. Evans v. United States, 9 Cir., 1958, 257 F.2d 121, 128, certiorari denied 358 U.S. 866, 79 S.Ct. 98, 3 L.Ed.2d 99.

Appellants contend that the record does not contain any evidence that their possession of the narcotics was with their knowledge and that they are entitled to acquittal as a matter of law. Each asserts that it is equally probable that the other had possession of the narcotics or that some third person had placed them in the car.

Their testimony was as follows: They had been good friends for about two years. On May 8, 1959, by mutual agreement, they undertook a trip from Ingleside, California, where they resided, to Tijuana, Mexico. Eason was interested in attending the dog races. Nowlin was interested in window-shopping for a suede jacket for his wife and for a chess set. Shortly after 1:30 p. m., Nowlin secured and cashed an unemployment compensation check in the sum of $40.00. He left $25.00 with his wife, retained $15.00, and the two proceeded to Tijuana in Eason's car, a 1951 Dodge convertible. Nowlin provided the gasoline and food out of his funds. The trip took about four and one-half hours, which was somewhat longer than anticipated due to the fact that the car was in such condition that it had to be driven slowly. The two arrived in Tijuana about 6:00 p. m. and were there until around 9:30 p. m. During this time they strolled through a few curio shops, saw about three dog races and spent some time at a couple of cafes. They were together most of the time. During all of this time the car had been parked with the top down.

At the border, upon their return, they submitted to inspection. Because they appeared nervous and because of their manner of answering questions, the suspicion of the inspector was aroused. He decided upon a search. A paper bag containing the narcotics was found secreted behind the dashboard. Appellants both deny putting the bag there or knowing of its presence.

There is no question but that the package could have been put in its hiding place by someone without the appellants' knowledge. They contend under these circumstances that the mere fact that the goods were found in the car they were driving is not sufficient circumstantial evidence of knowledge; that an inference of innocence was as reasonable as an inference of guilt; that, since anyone could have put the package there, the jury was not entitled to infer from its presence in their car that appellants had put it there.

Possession can be established by circumstantial evidence. Covarrubias v. United States, 9 Cir., 1959, 272 F.2d 352; Evans v. United States, 9 Cir., 257 F.2d 121, supra; United States v. Malfi, 3 Cir., 1959, 264 F.2d 147, certiorari denied 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63; United States v. Pinna, 7 Cir., 1950, 229 F.2d 216. Indeed, one might ponder long before discovering any other possible form of proof aside from admission. In Evans v. United States, supra, at page 128 of 257 F.2d, this Court stated:

"Proof that one had exclusive control and dominion over property on or in which contraband narcotics are found, is a potent circumstance tending to prove knowledge of the presence of such narcotics, and control thereof."

In Stoppelli v. United States, 9 Cir., 1950, 183 F.2d 391, certiorari denied 340 U.S. 864, 71 S.Ct. 88, 95 L.Ed. 631, this Court considered the contention that the...