U.S. v. Ferguson, 77-1074

• Decision Date: 08 June 1977
• Docket Number: No. 77-1074,77-1074
• Citation: 555 F.2d 1372
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William F. FERGUSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1372

555 F.2d 1372

UNITED STATES of America, Plaintiff-Appellee, v. William F. FERGUSON, Defendant-Appellant.

No. 77-1074.

United States Court of Appeals Ninth Circuit.

June 8, 1977.

Roger S. Auerbach, Auerbach & Freeman, Tucson, Ariz., for defendant-appellant.

William C. Smitherman, U. S. Atty., Gerald S. Frank, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

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

Before BROWNING, KILKENNY and TRASK, Circuit Judges.

OPINION

PER CURIAM.

Appellant was convicted of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He appeals on two grounds. We affirm.

Appellant was apprehended driving a van near the Mexican border, after seismic sensors indicated foot and vehicular traffic in that area. Searches of the van revealed a strong marijuana odor, marijuana debris, and several blankets. Backtracking led to the discovery of four sets of footprints paralleling the van's tracks, four men who ran across the border, and a cache of 1833 pounds of marijuana, some of which was wrapped in blankets of the same type as those found in appellant's van. Further backtracking led to a spot where the van had parked. The same four sets of footprints led back and forth between this spot and the cache of marijuana, and between the cache and the place where the marijuana had apparently been thrown over the border fence.

The Government's theory was that the marijuana was loaded into the van but subsequently removed when the van developed radiator problems, and that appellant was arrested while en route to arrange alternative transportation. Defendant testified he was hired to pick up the marijuana but repented; that he drove to the pickup area to tell the four men of his change of mind, and spent the night there after telling the four but without ever seeing the marijuana.

1. Appellant first argues that evidence of the marijuana debris found in his van was inadmissible as proof of a separate offense. The debris was not offered or received for this purpose, however, but rather to show possession of the 1833 pounds of marijuana in the cache, on the theory that the debris was left behind when the contraband was removed from the van to allow repair of the van's radiator.

Appellant argues that the debris was not shown to be marijuana by competent evidence. An experienced officer may identify a substance with which he is familiar. United States v. Almada-Aldama, 462 F.2d 952 (9th Cir. 1972). Officer Miller, who had considerable experience in identifying marijuana, testified that the debris was marijuana.

Appellant argues no connection was shown between the marijuana in the cache and the debris in the van. This is a variation of appellant's argument that the evidence was insufficient, to which we turn.

2. Appellant's contention that the evidence was insufficient to support the verdict is without merit. Appellant admitted that he was hired to pick up marijuana and that he went to the area in which the pickup was to be accomplished. The conflict is confined to whether he had possession (actual or constructive) of the marijuana, as the Government contends, or whether he changed his mind without acquiring possession, as appellant contends.

Appellant admittedly spent the night near the cache and the four persons who had smuggled the contraband across the border. The jury might reasonably conclude that such behavior was unlikely if appellant had decided to abandon the enterprise. Marijuana debris was found in the van, ^* along with blankets of the type in which part of the cache of marijuana was wrapped. The tracks between the cache, the van, and the border, and appellant's admission that he had radiator problems further supported the Government's stand that the contraband had been loaded and unloaded. Appellant's testimony regarding his statements to border officers conflicted in material respects with that of other witnesses. Some of the information appellant gave the officers was shown to be false. We are satisfied that the jury could reasonably have found appellant guilty of the charge against him beyond a reasonable doubt.

Affirmed.

TRASK, Circuit Judge, dissenting:

Appellant was found not guilty of Count I of the indictment which charged that he "did knowingly and intentionally import into the United States of American from Mexico approximately 1,833 pounds of . . . marijuana." This verdict is consistent with the findings of the Drug Enforcement Administration agent who testified that he found horse tracks to the Mexican side of the fence and four sets of footprints on the American side of the boundary and leading up to the stash. Ferguson's footprints were not among those. (R.T. at 54). The "import" was made by throwing the bags of marijuana over the fence and then transporting them to the point where they were found. There is not the slightest evidence that appellant had anything to do with that handling of the marijuana. Possession in the sense of actual physical custody and control over the marijuana was therefore in the persons who left those tracks and made the stash. Ferguson was not one of those four. These are the same footprints observed between the marijuana cache and the van. (R.T. at 51). If the marijuana was ever transferred from the stash into the van, which is speculative, it must have been retransferred back to the original cache because it was not in the van when the van was stopped the following morning on its way back from whence it came and was diverted to Nogales.

A fair reading of the indictment on Count II makes it clear that the appellant was not charged with possession with intent to distribute some debris in the van. He was charged with "possession with intent to distribute approximately 1,833 . . . pounds of marijuana." The debris in the van could not support a charge to "distribute" the 1,833 pounds of marijuana which was left on the ground. I consider, then, what kind of possession, if any, appellant had of the 1,833 pounds of marijuana. All of that marijuana consisted of bricks wrapped in heavy butcher paper and then placed in white nylon sugar bags. ¹ I find it completely unlikely that the marijuana debris would have come from the marijuana so packaged with the packages put in nylon bags and loaded in the van in an operation that consumed such a short time before it was reversed. I find, therefore, that the government's own conjectures are insufficient to establish such a far-fetched actual possession. ² Appellant did not have actual possession or custody of the 1,833 pounds of marijuana at any time. Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), I find that the majority's position is too frail to support a conviction on Count II even against a defense based only upon the insufficiency of the evidence.

The play within a play which concerned the ownership of the van and the relationship vel non between Ferguson and the Dabneys brought out testimony that was impossible to reconcile and undoubtedly proved that Ferguson or Mrs....