Gallego v. United States, No. 16580.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtMATHEWS, HAMLEY, and MERRILL, Circuit
Citation276 F.2d 914
Decision Date23 March 1960
Docket NumberNo. 16580.
PartiesAlbert Lopez GALLEGO, Appellant, v. UNITED STATES of America, Appellee.

276 F.2d 914 (1960)

Albert Lopez GALLEGO, Appellant,
v.
UNITED STATES of America, Appellee.

No. 16580.

United States Court of Appeals Ninth Circuit.

March 23, 1960.


276 F.2d 915

Clague A. VanSlyke, Tucson, Ariz., for appellant.

Jack D. H. Hays, U. S. Atty., Mary Anne Reimann, Asst. U. S. Atty., Tucson, Ariz., for appellee.

Before MATHEWS, HAMLEY, and MERRILL, Circuit Judges.

HAMLEY, Circuit Judge.

Albert Lopez Gallego appeals from his conviction and sentence on a charge of unlawful importation of marijuana, in violation of 21 U.S.C.A. § 176a. Two questions are presented here. The first is whether, because of an asserted missing link in the chain of evidence relating to the custody of a can and a sack containing marijuana, it was error to admit these articles into evidence as exhibits. The second is whether the sentence imposed in conformity with 21 U.S. C.A. § 176a and 26 U.S.C.A. § 7237(d) constitutes cruel and unusual punishment within the meaning of the Eighth Amendment.

Concerning the question as to the admissibility of evidence, the relevant facts are as follows: Appellant entered the United States from Mexico on April 3, 1959, and was stopped at the border by

276 F.2d 916
an immigration inspector and a customs inspector. In the trunk of appellant's car the immigration inspector found a paper sack which contained a substance which appeared to be marijuana. He handed the sack to the customs inspector who, in turn, gave it to Fred Valenzuela, Deputy Collector of Customs, at the latter's nearby home. Valenzuela then took the sack to his office in the Customs House at Naco and put it in his desk

Immediately afterwards he searched appellant at the Customs House and found upon the latter's person a Prince Albert tobacco can containing what appeared to be marijuana cigarettes. As soon as the can was found it was placed in Valenzuela's desk.

The sack and can were kept in the desk for approximately one hour, during which Valenzuela was at all times in the vicinity of the desk. That night Valenzuela placed the sack and can in a safe in the Customs House. The next day he personally took these two articles to the Commissioner's hearing, after which he returned them to the safe. Valenzuela took the can and sack from the safe about ten days later and sent them by registered mail to the customs laboratory in Los Angeles. They were returned by registered mail and replaced in the safe, where they remained until the morning of the trial.

At the trial the immigration inspector who had found the paper sack in the trunk of appellant's car examined a paper sack which was handed to him, and its contents, and identified the sack as that which he had found. His initials appeared thereon. He similarly examined a can which was handed to him, on which his initials appeared, and identified the can as the one which had been taken from appellant's person. He testified that the contents of the can appeared to be the same as when the can was first found, but was unable to testify that the contents actually were the same.

Valenzuela similarly examined the same paper sack and can which were produced at the trial. He identified the sack as the one which had been turned over to him at his home. He identified the can as the one which he had found on appellant's person and testified that its contents appeared to be "very much" the same as when the can was discovered. A customs inspector who had been present when the automobile was searched examined the paper sack which was produced at the trial, and its contents, and identified the sack as the article found in the trunk of appellant's car.

A chemist for the United States Customs Service identified these two containers as the ones which had reached him by registered mail. On the basis of his analysis of their contents he testified that the sack and can each contained marijuana.

The safe at the customs office in Naco, where the sack and can were placed for a period of time, had a combination lock. The combination was known only by Valenzuela and by the acting deputy collector of customs who takes Valenzuela's place when the latter is away. The acting deputy collector was not called as a witness.

After all of the evidence reviewed above had been received the government offered the paper sack and its contents in evidence as exhibit 1-A, and the can and its contents as exhibit 1-B. Appellant objected on the ground that the government had failed to show that it had exclusive control and possession of the articles during the ten days they were in the safe before being sent to the Los Angeles laboratory. The objection was overruled and the articles were admitted in evidence.

It is this objection which appellant renews here in contending that it was error to receive exhibits 1-A and 1-B in evidence. Specifically, appellant argues that the "chain of custody" must be complete and exclusive and that it was incumbent upon the government to...

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186 practice notes
  • State v. Brown
    • United States
    • Supreme Court of Connecticut
    • May 3, 1972
    ...to warrant is reception in evidence. United States v. Clark, . . . (425 F.2d 827, 833 (3d Cir.)); Gallego v. United States, . . . (276 F.2d 914, 917 (9th Cir.)); United States v. S. B. Penick & Co., supra. The court must consider the nature of the article, the circumstances surrounding its ......
  • State v. Johnson
    • United States
    • Supreme Court of Connecticut
    • January 19, 1972
    ...committed before it can be properly admitted in evidence. United States v. Clark, 425 F.2d 827, 833 (3d Cir.); United States v. Gallego, 276 F.2d 914, 917 (9th Cir.); United States v. S. B. Penick & Co., 136 F.2d 413, 415 (2d Cir.); 32 C.J.S. Evidence § 607, p. There is no hard and fast rul......
  • State v. Piskorski
    • United States
    • Supreme Court of Connecticut
    • June 19, 1979
    ...is sufficient to warrant its reception in evidence. United States v. Clark (425 F.2d 827, 833 (3d Cir.)); Gallego v. United States (276 F.2d 914, 917 (9th Cir.)); United States v. S. B. Penick & Co., supra. The court must consider the nature of the article, the circumstances surrounding its......
  • U.S. v. Weiner, No. 75-2973
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 15, 1978
    ...Appellant Lichtig alleges error in the receipt in evidence of workpapers produced by Lichtig in 1968. He cites Gallego v. United States, 276 F.2d 914 (9th Cir. 1960). Nothing in Gallego supports this assignment of Lichtig contends that the chain of custody of the workpapers between 1968 and......
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184 cases
  • State v. Brown
    • United States
    • Supreme Court of Connecticut
    • May 3, 1972
    ...to warrant is reception in evidence. United States v. Clark, . . . (425 F.2d 827, 833 (3d Cir.)); Gallego v. United States, . . . (276 F.2d 914, 917 (9th Cir.)); United States v. S. B. Penick & Co., supra. The court must consider the nature of the article, the circumstances surrounding its ......
  • State v. Johnson
    • United States
    • Supreme Court of Connecticut
    • January 19, 1972
    ...committed before it can be properly admitted in evidence. United States v. Clark, 425 F.2d 827, 833 (3d Cir.); United States v. Gallego, 276 F.2d 914, 917 (9th Cir.); United States v. S. B. Penick & Co., 136 F.2d 413, 415 (2d Cir.); 32 C.J.S. Evidence § 607, p. There is no hard and fast rul......
  • State v. Piskorski
    • United States
    • Supreme Court of Connecticut
    • June 19, 1979
    ...is sufficient to warrant its reception in evidence. United States v. Clark (425 F.2d 827, 833 (3d Cir.)); Gallego v. United States (276 F.2d 914, 917 (9th Cir.)); United States v. S. B. Penick & Co., supra. The court must consider the nature of the article, the circumstances surrounding its......
  • U.S. v. Weiner, No. 75-2973
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 15, 1978
    ...Appellant Lichtig alleges error in the receipt in evidence of workpapers produced by Lichtig in 1968. He cites Gallego v. United States, 276 F.2d 914 (9th Cir. 1960). Nothing in Gallego supports this assignment of Lichtig contends that the chain of custody of the workpapers between 1968 and......
  • Request a trial to view additional results

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