Sandoval v. United States

• Decision Date: 15 November 1960
• Docket Number: No. 6437.,6437.
• Citation: 285 F.2d 605
• Parties: David SANDOVAL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

285 F.2d 605 (1960)

David SANDOVAL, Appellant, v. UNITED STATES of America, Appellee.

No. 6437.

United States Court of Appeals Tenth Circuit.

November 15, 1960.

Robert L. McDougal, Denver, Colo., for appellant.

James A. Borland, U. S. Atty., Albuquerque, N. M., for appellee.

Before MURRAH, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

Sandoval was convicted on a two-count indictment charging him with receiving and concealing narcotics, in violation of 21 U.S.C.A. § 174, and the sale thereof, in violation of 26 U.S.C.A. § 4705(a). This appeal raises questions as to the admissibility of the narcotics into evidence, the sufficiency of the evidence to sustain the conviction, and the availability of the defense of entrapment.

The evidence of the prosecution shows that on September 1, 1959, Federal Narcotics Agent Parks, Baca and Perea, detectives of the Albuquerque Police Department, and Chavez,¹ a special employee of the United States, met in what was described as the "sand hills" in the eastern part of Albuquerque. Chavez was thoroughly searched, and it was determined that he had no narcotics or paper money on his person. The automobile, which was intended for the use of Chavez, was also searched, and no narcotics were found therein. Federal Agent Parks furnished $35 to Chavez in paper money for the purpose of purchasing narcotics from Sandoval. Detective Perea then concealed himself in the trunk of the automobile, and Chavez was instructed to drive it to the residence of Sandoval's sister. Parks and Baca followed closely in another automobile, and, when Chavez turned into the driveway at the sister's address, they parked across the street where they could observe what took place in the automobile and in the vicinity of the house. Chavez stopped the automobile in the driveway, and sounded the horn. Sandoval came out of the house, approached the automobile, recognized Chavez, and entered the passenger's side of the car. Chavez asked Sandoval if he had any heroin, and he replied that he had only "five caps." Chavez told him he wanted seven caps. Then Sandoval advised him that he had eight caps. They were in a small box. This conversation was overheard by Perea from his position in the car trunk.² Sandoval then got out of the automobile, and as he re-entered the house he was observed putting something in his pocket. The two cars returned to the site of the previous meeting, and Chavez handed Parks a match box, inside of which were seven paper packets, all of them containing what was later analyzed and found to be heroin. All present initialed the packets, and they identified them when the packets were introduced in evidence. Chavez was again searched, as was the automobile which he had driven. No narcotics were found; and the $35 which had been furnished to Chavez was gone.

It is contended that the heroin packets should have been excluded from evidence. When they were offered, no objection was made. The failure to make timely objection to the admission of evidence constitutes a waiver of the right to object, and ordinarily cures error, if there is any. Moreland v. United States, 10 Cir., 270 F.2d 887; Dunn v. United States, 10 Cir., 190 F.2d 496. There can be no doubt, however, that the exhibit was properly identified and was the heroin which Chavez testified he acquired from Sandoval.

At the close of all of the evidence the defendant moved for an acquittal upon the ground that there was insufficient evidence to establish his guilt beyond a reasonable doubt. It is asserted here that the verdict is not supported by substantial evidence, and that the motion should have been sustained. In determining the question of the sufficiency of the evidence, and the inferences to be drawn therefrom, it must be viewed in the light most favorable to the prosecution. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680; Corbin v. United States, 10 Cir., 253 F.2d 646; Evans v. United States, 10 Cir., 240 F.2d 695; Seefeldt v. United States, 10 Cir., 183 F.2d 713. It is a fundamental principle that it is not within the province or the function of appellate courts, after a verdict of guilty in criminal cases, to weigh the evidence or to test the credibility of witnesses. Glasser v. United States, supra; Travis v. United States, 10 Cir., 269 F.2d 928, certiorari granted 363 U.S. 801, 80 S. Ct. 1235, 4 L.Ed.2d 1146. The scope of review is limited to a determination of whether there is substantial evidence which, when viewed in the light most favorable to the prosecution, is sufficient to support the verdict. Evans v. United States, supra.

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