U.S. v. Leal

• Decision Date: 06 January 1975
• Docket Number: No. 74--1655,74--1655
• Citation: 509 F.2d 122
• Parties: UNITED STATES of America, Appellee, v. Morris LEAL, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 122

509 F.2d 122

UNITED STATES of America, Appellee, v. Morris LEAL, Appellant.

No. 74--1655.

United States Court of Appeals, Ninth Circuit.

Jan. 6, 1975.

Fred E. Bordallo (argued), of Bordallo & Lujan, Agana, Guam, for appellant.

Duane K. Craske, U.S. Atty. (argued), Agana, Guam, for appellee.

Before KOELSCH and SNEED, Circuit Judges, and FIRTH ^*, District judge.

OPINION

SNEED, Circuit Judge:

Appellant was convicted of the crime of importing heroin into the United States, 21 U.S.C. § 952(a) and of attempting to possess heroin with intent to distribute, 21 U.S.C. § 841(a). He was acquitted of a charge of conspiracy to import heroin, and Joseph Gumataotao, a co-defendant, was acquitted on all counts. On appeal appellant argues that the government failed to prove him guilty beyond a reasonable doubt and that the trial court erred in admitting into evidence two exhibits offered by the government. We affirm the conviction.

I. Facts

On October 1, 1973, during a routine inspection of packages coming from abroad, an inspector at the Agana, Guam, post office noticed a package with the return address of Mark Swegler, Park Hotel, Hong Kong. The package was addressed to Doris Bautista, Dedeo Village, General Delivery, Agana, Guam 96910. While inspecting baggage at the Guam International Air Terminal the previous night, the inspector had found a Mark Swegler bringing heroin into the country. Therefore, she opened the package and discovered inside, inter alia, while powder subsequently determined to be heroin. Among the rest of the packages in the post office was another with the same return address which was addressed to Joseph Gumataotao, P.O. Box 1121, Agana, Guam, U.S.A. 96910.

The second package also contained white powder subsequently determined to be heroin. The heroin, which was concealed in a can of baby powder, was replaced with flour and the package was sprinkled with fluorescent powder before it was delivered to Gumataotao, who claimed it at the post office on October 5, 1973. After picking up the package, Gumataotao placed it inside a white Datsun in which appellant had been waiting and the two drove away. Later that day they were arrested and the car was seized. Upon examination, fluorescent powder was discovered on the hands of appellant and Gumataotao and inside their vehicle.

At trial, over defense objection, the government introduced the two disputed exhibits, 21 and 22. The former consists of a letter from A. V. Shaw, the assistant director of the Hong Kong Immigration Service, certifying the movements of appellant and his wife in Hong Kong on September 20 and 21, 1973, together with photostatic copies of their arrival and departure cards. Exhibit 22 consists of the affidavit of Henry H. L. Chan, the assistant manager of the Park Hotel, Hong Kong, to which are attached the original hotel registration card and telephone booking orders of appellant and his wife, and the affidavit of Robert J. Furey, Special Agent of the Drug Enforcement Administration of the Department of Justice.

II. Sufficiency of the Evidence

Appellant moved twice for a judgment of acquittal under Rule 29, F.R.Cr.P., on the ground that the evidence was insufficient to sustain a conviction. The motions were denied.

Since knowledge is an element of both counts upon which appellant was convicted, it is his contention that the government did not prove such knowledge beyond a reasonable doubt. The case against appellant is based on circumstantial evidence produced at trial, and it has been held that circumstantial evidence is sufficient to establish knowledge. United States v. Childs, 457 F.2d 173 (9th Cir. 1972). In the present case, the evidence shows the following:

(1) that appellant and his wife were in Hong Kong on the date the package addressed to Gumataotao containing the heroin was mailed and they stayed only overnight;

(2) that appellant and his wife stayed at the hotel shown on the package as the address of the sender the night preceding the day the package was mailed;

(3) that appellant telephoned co-defendant Gumataotao in Guam the night before the package was mailed;

(4) that the sender's name on the package was appellant's half brother who had never been in Hong Kong;

(5) that the addressee of the package (co-defendant Gumataotao) was the same person telephoned by appellant from Hong Kong and the same person who picked up the package in Agana, Guam and who drove the car after placing the package on the seat by appellant;

(6) that the white Datsun was registered to appellant's mother;

(7) that the outer wrapping of the package which contained the heroin was found alongside a road in an area where appellant was reported to have been;

(8) that the vehicle appellant used contained white powder similar to the flour placed in the package which had contained the heroin;

(9) that the vehicle appellant used contained fluorescent powder which had been placed on the package containing the heroin;

(10) that appellant's hands showed traces of fluorescent powder which was of the type which had been placed on the package containing the heroin; and

(11) that the vehicle was located in front of appellant's residence on the day that the package was delivered.

Hernandez v. United States, 300 F.2d 114 (9th Cir. 1962), upon which appellant relies, is inapposite here. In that case the trial court found that there was no proof that the defendant personally had knowledge that the heroin was illegally imported and no proof that he personally had possession of the narcotics from which such knowledge could be presumed. The Hernandez court excluded from the reach of its holding 'those whose knowledge of the illegal importation of the narcotic drugs can be shown by direct or circumstantial evidence, without reliance upon the presumption based upon possession.' Id. at 124. Thus in the case at bar, where the requisite knowledge can be established by circumstantial evidence, appellant is outside the scope of the Hernandez ruling.

The test to be applied by the trial court in deciding a motion for acquittal in a criminal case and the test to be applied by an appellate court in reviewing that decision are, as a practical matter, identical. The evidence must be taken in the light most favorable to the verdict. United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969). The court must be 'satisfied that the jurors reasonably could decide that they would not hesitate to act in their own serious affairs upon factual assumptions as probable as the conclusion that' a criminal defendant is guilty as charged. United States v. Felix, 474 F.2d 610, 612 (9th Cir. 1973); United States v. Nelson,supra, 419 F.2d at 1245. Applying this standard of review to the case before us, we affirm the denial of the motions for acquittal since the evidence presented is sufficient to sustain the conviction.

III. Admission of the Disputed Exhibits

The official documents exception to the hearsay rule, which was recognized at common law, permits the introduction, for the proof of the facts stated therein, of all documents prepared by public officials pursuant to a duty imposed by law or required by the nature of their office. Olender v. United States, 210 F.2d 795, 801 (9th Cir. 1954). The provisions for proving official records, 'when admissible for any purpose,' are found in Rule 44, F.R.Civ.P., which is made applicable in criminal trials by Rule 27, F.R.Cr.P. Rule 44(a) (2) set out in the margin, ¹ addresses itself to the authentication of foreign official documents.

A. Exhibit 21.

Appellant contends that Exhibit 21 was improperly admitted on the ground that it was not authenticated in accordance with the procedures set out in Rule 44. Rule 44(a)(2) clearly applies to attested copies, as well as to original records. The rule requires, however, that such a copy be accompanied by a final certification as to the genuineness of the signature and official position of the attesting person. The final certification must be made by a diplomatic official of the United States or diplomatic or consular official of the foreign country assigned or accredited to the United States. This certification is absent with respect to the immigration records, as Mr. Shaw refused to go to the American Embassy, and chose instead to follow the procedure of his own government for authenticating documents, viz., to write a letter on his stationery attesting that the copies were taken from the original documents, and merely signing the letter.

According to appellant, the lack of certification is fatal to the government's attempt to authenticate the immigration records. The final sentence of Rule 44(a)(2) however, provides:

If reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the attested documents, the court may, for good cause shown, (i) admit an attested copy without final certification . . ..

This provision was added in the recognition that 'in some situations it may be difficult or even impossible to satisfy the basic requirements of the rule. . . . (T)he foreign officials may not cooperate. . . .' Advisory Committee's Note to Rule 44, 39 F.R.D. at 116.

The government has, in this case, made a sufficient showing of good cause. In an attempt to comply with the final certification procedure, they urged the immigration officer to appear at the United States Embassy, but there was no way that they could compel him to do so. When he refused to follow any procedures for authentication except those of his own government, copies of the desired records were obtained in accordance with those procedures.

We conclude that the government did all that could be done under the...