U.S. v. Morando-Alvarez, MORANDO-ALVAREZ and A

• Decision Date: 18 July 1975
• Docket Number: 74-3186,Nos. 74-3224,MORANDO-ALVAREZ and A,s. 74-3224
• Citation: 520 F.2d 882
• Parties: UNITED STATES of America, Appellee, v. Pedrolejandro Moreno-Romero, Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 882

520 F.2d 882

UNITED STATES of America, Appellee, v. Pedro MORANDO-ALVAREZ and Alejandro Moreno-Romero, Appellants.

Nos. 74-3224, 74-3186.

United States Court of Appeals Ninth Circuit.

July 18, 1975.

Jo Ann Diamos, Asst. Federal Defender (argued), Tucson, Ariz., for appellants.

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

OPINION

Before BROWNING and WALLACE, Circuit Judges and ENRIGHT, ^* District Judge.

ENRIGHT, District Judge:

This is an appeal from a jury verdict in which both defendants were found guilty of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The defendants' sole contention on appeal is that there was insufficient evidence to support a finding of guilt and that therefore, the trial court erred in denying their motion for judgment of acquittal. For the reasons stated below, we reject the defendants' contention and affirm the judgment.

On the date of the defendants' arrest, July 1, 1974, Customs Officers Budzeyko and Davis were traveling southeast on Duquesne Road. Duquesne Road is a two-lane dirt road surrounded by a ranch to the north and a stable to the south, located approximately two miles north of the Arizona-Mexico border, 22 miles northwest of the Lochiel port of entry. The officers were riding in a marked Customs patrol vehicle with a siren and red lights on the roof.

At approximately 3:30 p. m., the officers observed a green Pontiac, jacked up in the rear, approaching from the opposite direction at a fairly high speed. Budzeyko slowed down in order to observe the occupants of the Pontiac, and as the car passed the officers, they saw two men in the front seat who appeared frightened upon seeing them.

Budzeyko made a U-turn in order to pursue the Pontiac and make a radio check on the car's registration. There was a sharp turn in the road, so the car was momentarily out of the officers' sight. Upon rounding the curve, Budzeyko and Davis saw the Pontiac moving very slowly with both doors open and the two occupants of the car climbing over a fence on the side of the road. Budzeyko stopped his vehicle, ran to the Pontiac, and turned off the engine. When the car had stopped, he removed the keys from the ignition and opened the trunk, where he found three large sacks and smelled the odor of marijuana. The contraband charged was contained therein.

Davis had climbed over the fence in pursuit of the two occupants of the Pontiac. He heard a sound like a shot and fired in the direction of the two men. Budzeyko radioed for assistance and then attempted to catch up with Davis, but he saw that Davis was too far ahead. He returned to his car and drove approximately one mile to a higher vantage point, from where he observed the two subjects running, with Davis in pursuit.

Approximately 45 minutes after the Pontiac was abandoned, a heavy rainstorm began which became a hailstorm. After Davis had pursued the subjects for nearly an hour, he abandoned the chase.

Meanwhile, Customs Officers Padalino and Fergus had responded to Budzeyko's call for assistance. They drove into the hills in their four-wheel drive vehicle as far as the car was able to travel. They then proceeded on foot and soon observed two men running towards them. The officers concealed themselves in some bushes and waited for the men to approach. As the subjects stopped to rest, the officers moved in and apprehended them. Padalino testified that both men were scarred and bloody from what appeared to be thorn scratches. Their faces, arms, and legs were scratched and their clothes were torn. One of the men had lost his boots and his feet were torn from rocks and thorns.

The defendants first contend that there was insufficient evidence to support a finding that they were the two men who had abandoned the Pontiac, since neither Budzeyko nor Davis was asked at trial to identify the men they had seen in the car. However, Padalino identified the defendants as the individuals he had apprehended, and there was clearly sufficient evidence from which the jury could have concluded that the defendants were the men who had run from Budzeyko and Davis. No other car had passed through the area during the pursuit, and the condition of the defendants when they were apprehended indicated that they had been running through the brush for some time despite a heavy rainstorm.

The defendants' next contention poses greater difficulty. They argue that there was insufficient evidence from which the jury could have concluded that they were in possession of the marijuana. The contention is that the government's evidence, which consisted primarily of the defendants' frightened appearance upon seeing the officers and the circumstances attendant to their subsequent flight, was insufficient to prove that the defendants had possession of the marijuana in the Pontiac. Although the issue is not easily resolved, we are of the opinion that the evidence is sufficient to permit the jury to conclude that the defendants were both in possession of the contraband.

Given the nature of the defendants' flight, we find that there was ample evidence to support a finding that both defendants had knowledge of the presence of the contraband in the vehicle. However, the defendants argue that while their flight may be probative evidence of knowledge that the marijuana was in the car, it does...