U.S. v. Campbell

• Citation: 507 F.2d 955
• Decision Date: 05 December 1974
• Docket Number: No. 74-2362,74-2362
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wendall Allen CAMPBELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 955

507 F.2d 955

UNITED STATES of America, Plaintiff-Appellee, v. Wendall Allen CAMPBELL, Defendant-Appellant.

No. 74-2362.

United States Court of Appeals, Ninth Circuit.

Dec. 5, 1974.

J. David Franklin (argued), San Diego, Cal., for defendant-appellant.

William Bower, Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

Before DUNIWAY and CARTER, Circuit Judges, and WEIGEL, ^* District judge.

OPINION

JAMES M. CARTER, Circuit Judge.

Defendant Wendall Allen Campbell appeals from the judgment of conviction after a jury trial, of illegally importing and knowingly possessing with intent to distribute 151.2 grams of heroin, and illegally importing 1.2 grams of cocaine, in violation of 21 U.S.C. 952 and 841(a)(1). The defendant's contentions on appeal which merit discussion are:

I. Whether the evidence was sufficient to sustain the convictions.

II. Whether, under the circumstances of this case, the court was correct in instructing the jury that they may infer knowledge from defendant's driving the contraband-laden vehicle.

III. Whether the trial court properly advised the jury of the manner in which the trial was to proceed after the granting of the co-defendants' motions for judgment of acquittal. We affirm.

FACTS

On January 19, 1974, the defendant's mother loaned him her 1973 Cadillac Eldorado. He told her that he wanted the vehicle to pick up his daughter who lived some 20 Miles away. This was not true.

At approximately 2:20 p.m. on January 22, 1974, the defendant and his three co-defendants entered the United States at the San Ysidro port of entry in the same 1973 Cadillac. All four told the Customs Inspector that they had nothing to declare, and said that they had been in Mexico celebrating one of the passengers' birthday.

Customs Inspector Villegas asked the defendant to open the trunk of his car. The trunk was opened from the inside, but as the defendant walked toward the trunk carrying his keys, Villegas noticed his hands shaking or trembling.

The defendant told Villegas that he worked for the Los Angeles County Probation Department. When asked for identification, the defendant produced a probation department card, but with someone else's name on it. The defendant said that the card belonged to one of his associates. When pressed about his employment, however, he said that he no longer worked for the probation department and had not worked for them for about a year. He had been unemployed since then.

Inspector Villegas waved the car on, but immediately called for it to stop when he noticed one passenger's hand trembling and another's neck pulsating very rapidly. When he looked in the car, all of the passengers were looking in his direction, but their eyes were not making contact with his.

Once at the secondary inspection area, needle tracks were discovered on the arms of the two female passengers, and one of them said she 'shoots coke.' The car was inspected and the narcotics found under the dashboard above the radio.

At trial, one of the agents testified as to the street value of the narcotics. The value was shown to be about $30,000. At the trial, at the close of the prosecution's case, the court granted (outside of the jury's presence) motions for judgment of acquittal by the three co-defendants, and dismissed three conspiracy counts against the defendant. The trial continued as to the defendant, and he was convicted. This appeal ensued.

I.

The Evidence was Sufficient to Sustain the Conviction.

II.

The Court was Correct in Instructing the Jury That They Might Infer Knowledge from the Defendant's Driving the Contraband-Laden Vehicle.

We consider contentions I and II together.

We do not reach the question as to whether the evidence was sufficient to support the conviction without the inference available from the court's instructions.

The court instructed the jury as follows:

'You are instructed that if you find that the Defendant, WENDALL ALLEN CAMPBELL, was the driver of the 1973 Cadillac El Dorado automobile and if you find that the heroin and cocaine were inside the Cadillac automobile or concealed in its body, then you may infer from these two facts-- well, all other facts in the case, that the Defendant, WENDALL ALLEN CAMPBELL, knew the heroin and cocaine were in the automobile, but you must find actual knowledge that the heroin and cocaine were in the vehicle at the time it was driven into the United States as that is an essential element of the offense charged. You may not find the Defendant guilty unless you find beyond a reasonable doubt that he knew either heroin or cocaine were in the automobile at the time that it was driven into the United States.' ¹

It is unquestioned that such an instruction is proper where the defendant was the sole occupant of the car, see, e.g., United States v. Castillo-Burgos, 501 F.2d 217 (9 Cir. 1974), cert. den., U.S. , 95 S.Ct. 330, 42 L.Ed.2d 284 (1974). The propriety of the instruction where a number of occupants of the car could have placed the contraband therein is not as clear. However, in United States v. Fallang and During, 439 F.2d 685 (9 Cir. 1971) and Eason v. United States, 281 F.2d 818 (9 Cir. 1960), convictions based on such an inference were upheld where either of two occupants could have concealed the contraband without the other's knowledge. The courts found in each case that even if the defendant personally had not concealed the contraband, the joint nature of the venture supported an inference that the defendant had both knowledge of and control over contraband concealed by a companion.

In the present case, it is possible, as the defendant contends, that one of the other passengers concealed the drugs beneath the dashboard without his knowledge. However, the proximity of the drugs to the driver (the defendant), the friendship and joint nature of the venture, the testimony that the defendant, like the others, appeared to be nervous, and the defendant's complete control of the car, at least warranted the giving of an instruction that the jury may infer the defendant's knowledge of the contraband. The evidence was 'sufficient to warrant a reasonable jury finding beyond reasonable doubt that possession...