Moody v. United States

• Decision Date: 30 March 1967
• Docket Number: No. 20627.,20627.
• Citation: 376 F.2d 525
• Parties: Raoul MOODY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

376 F.2d 525 (1967)

Raoul MOODY, Appellant, v. UNITED STATES of America, Appellee.

No. 20627.

United States Court of Appeals Ninth Circuit.

March 30, 1967.

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Kenneth N. Rivera, Walnut Creek, Cal., for appellant.

Edwin L. Miller, U. S. Atty., Alan D. Sirota, Lawrence Turoff, Asst. U. S. Attys., San Diego, Cal., for appellee.

Before JONES, Judge of the United States Court of Claims,^* and BARNES and JERTBERG, Circuit Judges.

JERTBERG, Circuit Judge:

Following trial to a jury on a two count indictment, appellant was convicted on both counts. The first count charged a violation of 21 U.S.C. § 174, — the knowing importation of approximately eight ounces of heroin, a narcotic drug, into the United States from Mexico. Count Two charged the concealment and transportation of said heroin in the United States knowing the same to have been unlawfully imported from Mexico. Appellant was committed to the custody of the Attorney General for a period of ten years on each count, the sentences to run concurrently.

Included in the indictment as co-defendants were Fermin Aguirre, and Sally Moody, the sister of appellant, who is alleged to have aided and abetted in the commission of the offenses charged against the appellant and Fermin Aguirre.

Prior to trial the District Court granted Aguirre's motion for severance of trial under Rule 14 of the Federal Rules of Criminal Procedure. At the conclusion of the government's case the District Court granted Sally Moody's motion for judgment of acquittal. Hence, appellant is the only party named in the indictment who is a party to this appeal which the District Court permitted to be taken in forma pauperis.

Appellant specifies that the District Court erred:

1. In denying appellant's motion for judgment of acquittal in that the evidence is insufficient to sustain the conviction because based solely on the uncorroborated testimony of an accomplice;

2. In the giving of an instruction embodying the last paragraph contained in 21 U.S.C. § 174 in that the evidence of appellant's possession of heroin was insufficient to justify the giving of such instruction;

3. In depriving appellant of a fair trial by admitting testimony, over appellant's objection, relating to:

(a) Appellant\'s prior possession of heroin;

(b) A .38 caliber revolver and cartridges found in appellant\'s autobile;

(c) The hearsay statement made by a third party; and

(d) In permitting the prosecutor to unfairly comment, in his argument, on appellant\'s failure to testify in his own behalf.

In view of the nature of the errors specified by appellant, it is necessary to summarize the testimony which was before the jury relevant to such claimed errors.

In determining whether or not there was sufficient evidence to establish appellant's guilt beyond a reasonable doubt, the evidence must be viewed in the light most favorable to sustain the conviction. Enriquez v. United States, 338 F.2d 165 (9th Cir. 1964).

The main witness for the prosecution was Fermin Aguirre whose trial was severed from the other two defendants. Aguirre testified that he had known appellant for a little over thirteen years, and that he shared an apartment with appellant in Los Angeles, California; he and appellant left Los Angeles in appellant's automobile and drove to Tijuana, Mexico That on arrival in Tijuana the two went to a bar; shortly thereafter appellant left the bar while Aguirre remained behind; that appellant later returned with a third person, by name Larry or Lorenzo; all three left the bar and went to the east side of Tijuana near a prison; that during this trip a conversation took place in which Larry related an incident in which a narcotic informer had recently been killed;¹ that the three returned to Lorenzo's home and Lorenzo gave to each a sample of a substance which both appellant and Aguirre sniffed; that it looked and smelled like heroin; that Aguirre and Larry left and went to downtown Tijuana; that they returned to Larry's house; that appellant was inside the house and there were two men sitting in front of the house; that Aguirre remained outside and appellant called Aguirre to the side of the house; that Aguirre saw appellant put a glassine bag containing contraceptives in the air vent, under the hood, on the right hand side of appellant's car;

That Aguirre volunteered to drive the car across the border; that appellant told Aguirre not to snitch if he got caught and that Aguirre was to pick up appellant about one-half block beyond the border;

That Aguirre drove appellant's car across the border and was stopped and searched by the Border Inspectors; that the search revealed the heroin in the contraceptives in the glassine bag in the air vent of the car, and a loaded .38 caliber revolver and cartridges in the glove compartment;²

That on an occasion prior to the trip to Tijuana, Aguirre saw appellant in the possession of heroin.³

We first consider appellant's contention that the evidence is insufficient to sustain the conviction because based solely on the uncorroborated testimony of an accomplice. There is no dispute that Aguirre was an accomplice, and that the conviction of appellant rests upon the uncorroborated testimony of Aguirre.

It is clear from the many decisions of this court, of which are cited only the more recent, that a conviction in the Federal court can be based upon the uncorroborated testimony of an accomplice. Cheadle v. United States, 370 F.2d 314 (9th Cir. 1966); Quiles v. United States, 344 F.2d 490 (9th Cir. 1965); Lyda v. United States, 321 F.2d 788 (9th Cir. 1963); White v. United States, 315 F.2d 113 (9th Cir.) cert. denied 375 U.S. 821, 84 S.Ct. 58, 11 L.Ed.2d 55 (1963).

The foregoing rule applies even though there are inconsistencies in the accomplice's testimony, and even though the accomplice expected and hoped that his cooperation with the government might be rewarded by a lenient sentence, provided, however, that the testimony of the accomplice is not incredible or unsubstantial on its face. See Lyda v. United States, supra.

Bearing in mind that it is the function of the jury to determine the credibility of witnesses and the weight to be given to their testimony, and the limited role of an appellate court in a criminal appeal, we are unable to say that the testimony of Aguirre in the instant case was too shoddy, incredible or unsubstantial to support appellant's conviction.

We note in passing that the District Court instructed the jury that the testimony of Aguirre should be received with caution, weighed with great care, and that the jury should not convict the defendant on his unsupported testimony unless they believed, beyond a reasonable doubt, his uncorroborated testimony.

We next consider appellant's claim that the District Judge erred in reading to the jury the statutory presumption contained in 21 U.S.C. § 174, authorizing conviction when a defendant is shown to have or to have had possession of the narcotic drug, unless the defendant explains the possession to the satisfaction of the jury.

It is argued that since appellant was never shown to have had actual possession of the heroin, that it was error for the District Court to instruct the jury with respect to the statutory presumption.

Possession may be actual or constructive, and constructive possession is sufficient to sustain a conviction. Dominion and control over the drug without physical custody has been deemed constructive as opposed to actual possession. United States v. Hernandez, 290 F.2d 86 (2d Cir. 1961); Rodella v. United States, 286 F.2d 306 (9th Cir. 1960). See also Quiles v. United States, supra; Anthony v. United States, 331 F.2d 687 (9th Cir. 1964); Arellanes v. United States, 302 F.2d 603 (9th Cir.) cert. denied, 371 U.S. 930, 83 S.Ct. 294, 9 L.Ed.2d 238 (1962).

The District Judge, in his instructions, carefully explained the meaning of actual possession and constructive possession. We believe that there is sufficient evidence in the record from which the jury could infer that appellant had dominion and control over the narcotic drug even though the same was in the actual possession of Aguirre. See Klepper v. United States, 331 F.2d 694 (9th Cir. 1964).

We now consider appellant's claim that it was prejudicial error on the part of the District Court to permit the introduction of testimony by Aguirre concerning the possession of heroin by appellant on an occasion prior to the trip to Tijuana.

The question asked of Aguirre by the prosecutor was whether Aguirre had ever seen the appellant in the possession of heroin prior to the trip to Tijuana. Appellant's counsel objected to the question. The objection was overruled, and Aguirre answered in the affirmative. Counsel for appellant then moved to strike the answer on the ground that it tended to show evidence of other offenses not set forth in the indictment; that no proper foundation had been laid; and that the answer was the conclusion of the witness. The Court informed the prosecutor that he would have to lay a foundation, to which the prosecutor responded that he would. The Court thereupon instructed the jury that it was not charged in the indictment that the appellant in the past had possession of heroin, and unless the prosecutor offered further testimony tying in the past possession of heroin by appellant with the charges set forth in the indictment, that the testimony concerning the prior possession of heroin would be stricken from the evidence.

Aguirre then testified that he knew that the substance in appellant's possession prior to the trip to Tijuana was heroin because he knew the characteristics of the smell of heroin; that the substance in appellant's possession smelled like heroin. There is no testimony as to the time or place of such incident except that it occurred prior to the trip to Tijuana.

Nothing further appears in the transcript concerning the prior possession except that on the following day of the...