Fox v. United States

• Decision Date: 30 June 1967
• Docket Number: 20952.,No. 20951,20951
• Citation: 381 F.2d 125
• Parties: Julian FOX and James Henry Stanford, Appellants, v. UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

381 F.2d 125 (1967)

Julian FOX and James Henry Stanford, Appellants, v. UNITED STATES of America, Respondent.

Nos. 20951, 20952.

United States Court of Appeals Ninth Circuit.

June 30, 1967.

Peter J. Hughes, Sheela, O'Laughlin & Hughes, San Diego, Cal., for appellants.

Edwin L. Miller, Jr., U. S. Atty., Mobley M. Milam, Phillip W. Johnson, Asst. U. S. Attys., San Diego, Cal., for appellee.

Before BARNES and DUNIWAY, Circuit Judges, and PECKHAM, District Judge.

PECKHAM, District Judge:

Following a trial before a jury the appellants Julian Fox and James Henry Stanford were convicted of conspiracy to smuggle marijuana, and of a substantive charge of smuggling marijuana from Mexico into the United States.

The District Court had jurisdiction under Title 18 U.S.C. §§ 2 and 3231, and 21 U.S.C. § 176a. This Court has jurisdiction under 28 U.S.C. §§ 1291 and 1294.

Count 1 of the indictment charged that appellants and coindictees Olivia Ann Barnes, Allison Steward, Elmer A. D. Munns, and unindicted co-conspirator Shirley Jean Gainer and divers other persons to the Grand Jury unknown, agreed, confederated and conspired to commit the offenses of knowingly and with intent to defraud the United States, importing and smuggling marijuana from Mexico to the United States without presenting the marijuana for inspection and without declaring the marijuana as required by law, and concealing and facilitating the concealment and transportation of such marijuana which had been imported into the United States contrary to law. This Count alleged the following overt acts:

(1) On June 14, 1965, Olivia Barnes entered the United States in an automobile containing 42 pounds of marijuana; (2) on June 14, 1965, appellants watched automobile traffic in the vicinity of San Ysidro, and (3) on the same date appellants Stanford and Fox and co-indictees Barnes and Munns proceeded north on U. S. Highway 101.

Count 2 charged that on June 14, 1965, co-indictees Olivia Ann Barnes and Elmer A. D. Munns, with intent to defraud the United States, knowingly smuggled and clandestinely introduced into the United States from Mexico approximately 42 pounds of marijuana, which marijuana should have been invoiced, and knowingly imported and brought said marijuana into the United States from Mexico contrary to law, and that appellants Stanford and Fox and co-indictee Allison Steward knowlingly aided, abetted, counselled, induced, and procured the commission of that offense.

After pleas of not guilty had been entered, trial commenced as to appellants Stanford and Fox, together with co-indictees Barnes and Steward. At the close of the Government's case in chief, a motion for acquittal as to co-indictee Steward was made and granted as to him alone. Similar motions were made on behalf of co-indictee Barnes and appellants Fox and Stanford and were denied. At the close of all the evidence, motions for acquittal as to both appellants were made and denied again. Ruling on the motion as to co-indictee Barnes was reserved. The appellants and co-indictee Barnes were found guilty. Each appellant was committed to the custody of the Attorney General for a period of seven years on each of the two counts, to run concurrently. Appellants thereafter filed timely notices of appeal. Barnes is not before us on appeal. Appellants specify that the District Court erred as follows: (1) the evidence is insufficient as a matter of law to sustain the conviction of either appellant. (2) Both appellants were prejudiced by the receipt in evidence of contraband seized illegally by a Customs Officer.

We shall undertake to set forth the essential facts from our study of the record.¹ At approximately 11:45 a. m. on June 13, 1965, Melvin L. Moore, a United States Customs Officer, observed a Ford automobile at the parking lot of Oscar's Drive-In restaurant at San Ysidro, California. Appellants Stanford and Fox were in the Ford, which was about 200 or 300 yards from the international border between the United States and Mexico. Moore kept the vehicle under surveillance for about two hours and forty-five minutes. The Ford was located in a position from which all traffic entering from Mexico could be seen. During most of the time that Moore observed appellants through binoculars, "they had their heads looking toward the border." At about 2:30 a. m. a 1960 Pontiac entered the United States from Mexico. As it approached the curb in front of Oscar's Drive-In, it slowed down, and the illumination of its brake lights was observed. As the Pontiac reached a point almost opposite the Ford at Oscar's, the brake lights went off, and the vehicle accelerated in a northerly direction. Almost immediately the Ford was started and headed north on the same highway. Moore followed the two vehicles for about 17 or 18 miles or possibly more. During this time the Ford and the Pontiac passed each other a few times, and their speeds varied from 35 to 75 miles per hour. When one of the two vehicles would slow down, the other would do the same, and when one accelerated, the other would do the same. Without any action being taken by Moore, the Pontiac stopped while still in San Diego County. Moore stopped his vehicle, alighted, and identified himself to the Pontiac's occupants who were Olivia Barnes (the driver), Elmer Munns, and Shirley Jean Gainer. They stated that they had just entered from Mexico. After Moore asked whether they were bringing merchandise from Mexico, they said they had a few souvenirs. He asked permission to look in the trunk and was told that "they would not mind". At that time someone produced a key and opened the trunk. Moore discovered on the floor of the trunk certain packages and under the rear seat other packages. The contents of these packages later analyzed by a United States chemist as marijuana weighed 42 pounds, and the cost in Tijuana as of that date would have been $640.00. Agent Moore arrested the occupants of the Pontiac.

In the early morning hours of the same day appellants Fox and Stanford were arrested near Oceanside. They apparently had had a flat tire between the stopping of the Pontiac and their arrest in Oceanside.

Elmer Munns admitted as a witness at the trial that he had been promised $250.00 by someone, whom he would not identify and who he stated was not in the courtroom, for driving the car to Tijuana, leaving it for awhile in a certain parking lot near the racetrack, and driving it back over the border. After being approached, Munns contacted his girl friend, Olivia Barnes, and asked her if she wanted to go along, noting that they could also get married. Olivia Barnes also contacted a friend, Shirley Gainer, who accompanied them on the trip. Until crossing the border, Olivia Barnes drove because she was the only one who had a driver's license. After crossing the border, she got lost, and Munns drove and was utilizing a map that had been drawn to direct him to the place where the vehicle was to be parked. Munns parked the car, leaving the keys, and went with the girls to the racetrack where all remained for some time. Then all three went to a nearby place called the Country Club Motel. Olivia Barnes and Munns spent most of the time in a motel room, and Shirley Gainer remained in the lobby area. Appellant Stanford came to the Motel and spoke to Shirley Gainer. Munns referred to Stanford as "my partner" to the girls. Stanford talked to Shirley Gainer and then departed.

Appellants' testimony and the testimony of agents as to appellants' prior statements concerning the events of their trip to and from Mexico, are set forth separately, as their analysis becomes important to our decision upon the sufficiency of the evidence.

Testimony of appellant Stanford and of agents as to his prior statement: Appellant Stanford testified that he and appellant Fox had gone to Tijuana on June 13, 1965, that he went to the racetrack, that he left and made a telephone call that lasted for about 10 minutes, and that the telephone call involved his only separation from Fox. He testified that he talked to Shirley Gainer and Munns at a motel at about the time of the telephone call. He said that he talked to Shirley Gainer for about 15 or 20 minutes. He testified that he had not seen Shirley Gainer and others leaving the racetrack. Customs Agent Walter Gates testified that Stanford had previously stated that he saw two women and a man leaving the racetrack parking lot and stated that he followed them to the motel and engaged the girl in conversation. Moore also testified regarding this prior statement by Stanford.

Stanford also testified that he did not see appellant Fox at the motel. Agent Gates testified that Stanford had stated that Fox had arrived at the...