Quiles v. United States

• Decision Date: 21 June 1965
• Docket Number: No. 19393.,19393.
• Citation: 344 F.2d 490
• Parties: Euripedes QUILES, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

344 F.2d 490 (1965)

Euripedes QUILES, Appellant, v. UNITED STATES of America, Appellee.

No. 19393.

United States Court of Appeals Ninth Circuit.

May 1, 1965.

Rehearing Denied June 21, 1965.

Barton C. Sheela, Jr., San Diego, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Sec., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Sec., David R. Nissen, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, JERTBERG and ELY, Circuit Judges.

JERTBERG, Circuit Judge.

Following trial to a jury, appellant was convicted on both counts of a two count indictment charging violations of Title 21 U.S.C. § 176a.¹ Count one charges that beginning at a date unknown to the Grand Jury and continuing to on or about November 24, 1963, appellant and unindicted co-conspirators Candido Rodriguez and Jose Cordoba conspired together to import marihuana into the United States unlawfully. Count two charges that on or about November 24, 1963, Candido Rodriguez knowingly and unlawfully smuggled 180 pounds of marihuana into the United States and that appellant knowingly aided, abetted, and procured the commission of said offense.

The evidence introduced on behalf of the Government, in principal part, consists of the testimony of the unindicted co-conspirators Rodriguez and Cordoba. Their testimony may be summarized as follows:

Both had been sent to Mexico by appellant in an automobile provided by him to pick up a quantity of marihuana in Culiacan, Mexico and were instructed to deliver it to appellant in Los Angeles, California. They picked up the marihuana for which no payment was necessary from a woman at an address in Mexico given Cordoba by appellant. En route back to the United States, the car was damaged and was taken to a repair shop in Guaymas, Mexico. They telephoned appellant and notified him about the condition of the automobile whereupon he and one Guadalupe Evans, the owner of the car, drove to Guaymas. After some discussion about the marihuana and the expense of repairing the car, appellant and Evans returned to Los Angeles. A few days later, following repair of the car, Rodriguez and Cordoba resumed their journey but were stopped at the Point of Entry in San Ysidro, California. The marihuana which had been hidden under the seats of the car was discovered and they were placed under arrest.

Appellant's testimony, in substance, was: that he had previously been in the business of importing fruit into the United States from Mexico and was about to open a fruit business in San Francisco; that he had arranged with Cordoba to enter into a contract with Cordoba's uncle who was living in Mexico for the supplying of fruit; that he had allowed Cordoba and Rodriguez to take the car for the purpose of seeing Cordoba's uncle in connection with that agreement; and that he had gone to Guaymas, Mexico upon learning of the damage to the car to see what could be done about paying for the repairs.

Appellant first specifies that it was error to read to the jury the statutory presumption contained in 21 U.S.C. § 176a, supra, authorizing conviction when the defendant is shown to have or have had possession of the drug unless the defendant explains his possession to the satisfaction of the jury. It is argued that since appellant has never been shown to have been in the company of those in possession of the drug, and since those in possession had not testified that such possession was in effect the constructive possession of appellant, it was improper for the trial court to instruct the jury with regard to the statutory presumption.

Constructive possession, defined as dominion over or control of the marihuana, is embraced within the meaning of the term "possession" as used in the statutory presumption of 21 U.S.C. § 176a, supra. Anthony v. United States, 331 F.2d 687 (9th Cir. 1964); Accord, Arellanes v. United States, 302 F.2d 603 (9th Cir. 1962).

The testimony of Rodriguez and Cordoba that they had been sent by appellant to pick up the marihuana (which they did) from a person to whom no payment was required and that they were acting at his direction was evidence from which it could honestly, fairly and conscientiously be inferred that appellant exercised dominion over and control of the marihuana sufficient to raise the statutory presumption against him. The fact that appellant was not shown to have been in the physical presence of those in actual possession does not obviate that inference or make the instruction to the jury concerning the statutory presumption not applicable to the facts in the instant case.

Appellant's contention that before the jury could properly have been instructed on the statutory presumption the co-conspirators must first testify that their possession was the constructive possession of appellant is without merit. Such testimony would be a mere conclusion as to a fact in issue on the part of the witness. This conclusion is for the jury to reach from the testimony offered at the trial. See, Eason v. United States, 281 F.2d 818, 820 (9th Cir. 1960).

It is next argued that the trial court, in its instructions, erred in its comments on the evidence in that the court adverted to inconsistencies in appellant's testimony but did not likewise point out the inconsistencies in the testimony of Rodriguez and Cordoba, the unindicted co-conspirators.

We have reviewed the record and find nothing in the comments upon the evidence made by the District Judge which results in unfairness to the appellant. The trial judge carefully separated his comments from his instructions of law. He made it clear to the members of the jury that they could disregard his comments entirely and that they were the sole judges of the facts. Furthermore, we note from our review of the record that no objection was raised below to the comments now objected to. See, United States v. Michelson, 165 F.2d 732, 735 (2d Cir. 1948), affirmed, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948).

Appellant next specifies as error that "the prosecutor was guilty of misconduct which was prejudicial to the rights of appellant in his examination of witnesses." The assignment embraces two points. The first arises from appellant's contention that "the prosecutor asked questions of the defendant apparently based on information from a confidential informant." The relevant facts in this regard are these: A San Francisco police inspector testified early in the trial that appellant had come to his office and requested that he turn over to appellant an Oldsmobile sedan which had been impounded by the police. On direct...