U.S. v. Ballesteros-Cordova

• Decision Date: 30 November 1978
• Docket Number: A,No. 78-2078,BALLESTEROS-CORDOV,78-2078
• Citation: 586 F.2d 1321
• Parties: UNITED STATES of America, Appellee, v. Guadalupeppellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1321

586 F.2d 1321

UNITED STATES of America, Appellee, v. Guadalupe BALLESTEROS-CORDOVA, Appellant.

No. 78-2078.

United States Court of Appeals, Ninth Circuit.

Nov. 30, 1978.

James E. Mueller, Asst. U. S. Atty. (argued), Tucson, Ariz., for appellant.

Frank R. Zapata, Asst. Federal Public Defender (argued), Tucson, Ariz., for appellee.

Appeal from the United States District Court for the District of Arizona.

Before ANDERSON and HUG, Circuit Judges, and REAL ^*, District Judge.

PER CURIAM:

Defendant Ballesteros was convicted in a jury trial on a two-count indictment charging the importation of 414 pounds of marijuana in violation of 21 U.S.C. §§ 952(a) and 960(a)(1), and possession with intent to distribute 414 pounds of marijuana in violation of 21 U.S.C. § 841(a)(1). He appeals his conviction on two grounds. Ballesteros first contends that the statute of limitations had run prior to the issuance of the indictment. His second contention is that there was insufficient evidence of identification from which the jury could have found that he was the person involved in the crimes charged.

The incident which forms the basis of the indictment occurred on February 21, 1973 at the Douglas, Arizona port of entry from Mexico. United States customs officials testified that on the evening of that date a Mexican male driving a 1965 Ford automobile entered the port of entry, seeking entrance into the United States from Mexico. The driver appeared nervous and denied having a key to the trunk of his car. Inspector Donald Simpson obtained the driver's wallet and directed him into the secondary inspection area. At this time, customs agent Franklin Smith was notified by an informant that an automobile matching the description of the driver's car was loaded with contraband. Smith communicated this information to agent Charles Inman who began to escort the driver back to the primary inspection point. As they approached a "search booth", the suspect broke loose and ran back into Mexico. Inman gave chase, but was unable to overtake the fleeing man. The trunk of the automobile contained 414 pounds of marijuana.

In the wallet left behind by the suspect were a Mexican driver's license belonging to Ballesteros and a passport, each of which contained a photograph. The passport was destroyed in 1977 by the Immigration and Naturalization Service. Smith and Simpson testified that the photographs on the driver's license and passport were similar, if not identical. Smith, Simpson and Inman each testified that either during the inspection stop or shortly after the suspect fled, each of them studied one or both of the photographs and concluded that the fleeing suspect was the person pictured in the photographs.

Balesteros was arrested at the border on March 3, 1978, more than five years later. An indictment charging him with possession and importation of marijuana was returned on March 7, 1978.

Ballesteros filed a motion to dismiss the indictment on the grounds that the five- year statute of limitations had run. After an evidentiary hearing, the district court denied the motion to dismiss, finding that Ballesteros had been a fugitive from justice from February 29, 1973, ¹ until his arrest in 1978, and that the statute of limitations was tolled during this period pursuant to 18 U.S.C. § 3290. The finding was based upon evidence produced at the hearing revealing the facts as above stated.

The evidence introduced at Ballesteros's trial was similar to that presented at the evidentiary hearing on the motion to dismiss the indictment. At trial, customs officials Inman, Smith and Simpson each identified Ballesteros as the driver of the marijuana-laden automobile. Each of these witnesses relied on his prior identification of the driver as the man pictured in one or both of the photographs; each made an in-court identification of Ballesteros as the man pictured in the driver's license photograph which was introduced in evidence. Ballesteros testified that his wallet had been stolen a few days before February 21, 1973, and that he was not the suspect who fled the port of entry on that date.

Ballesteros moved for a judgment of acquittal on the ground that the identification testimony was insufficient for the jury to reasonably find that Ballesteros was the person who imported the marijuana. The district court denied this motion. The jury returned a verdict of guilty as charged on both counts.

I. Statute of Limitations

Title 18 U.S.C. § 3282 prohibits the prosecution of a defendant who is not indicted within five years after the commission of the crime. However, under 18 U.S.C. § 3290, this limitations period is tolled against "any person fleeing from justice".

The crime of which Ballesteros was convicted occurred on February 21, 1973. The indictment was returned on March 7, 1978, five years and two weeks later. Unless the statute of limitations was tolled under 18 U.S.C. § 3290 for more than two weeks, the limitations period expired before the indictment was returned.

This circuit has taken the position that § 3290 requires the prosecution to prove that the accused concealed himself with the intent to avoid arrest or prosecution. United States v. Wazney, 529 F.2d 1287, 1288-89 (9th Cir. 1976). However, to meet this burden, the prosecution need only prove that the defendant knew that he was wanted by the police and that he failed to submit to arrest. Id. 1289.

The statute of limitations will be tolled whenever the suspect flees with the intent of avoiding prosecution, even if prosecution has not actually begun at the time of the flight. The Supreme Court stated in Streep v. United States, 160 U.S. 128, 133, 16 S.Ct. 244, 246, 40 L.Ed. 365 (1895), in construing the predecessor statute to § 3290:

"In order to constitute a fleeing from justice, it is not necessary that the course of justice should have been put in operation by the presentment of an indictment by a grand jury, or by the filing of an information by the attorney for the government, or by the making of a complaint before a magistrate. It is sufficient that there is a flight with the intention of avoiding being prosecuted, whether a prosecution has or has not been actually begun."

At the hearing on the motion to dismiss the indictment, customs officials Simpson and Smith identified Ballesteros as the suspect who had fled the port of entry. These in-court identifications were apparently based on the recollection of each witness that he had previously identified the fleeing suspect as the person pictured in Ballesteros's driver's license.

Ballesteros testified that he was not the person who fled on February 21, 1973, and that he was not hiding from United States authorities after that date. He stated that...