U.S. v. Riggins, 77-5020

• Decision Date: 01 December 1977
• Docket Number: No. 77-5020,77-5020
• Citation: 563 F.2d 1264
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Melvin RIGGINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1264

563 F.2d 1264

UNITED STATES of America, Plaintiff-Appellee, v. Charles Melvin RIGGINS, Defendant-Appellant.

No. 77-5020.

United States Court of Appeals, Fifth Circuit.

Dec. 1, 1977.

Arturo C. Gonzalez, Del Rio, Tex., for defendant-appellant.

Charles Melvin Riggins, pro se.

Jamie C. Boyd, U.S. Atty., LeRoy Morgan John, Robert S. Bennett, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, GEWIN and AINSWORTH, Circuit Judges.

AINSWORTH, Circuit Judge:

Charles Melvin Riggins and Willie Dallas Graham were convicted after a jury trial, on a two-count indictment charging them with possession of heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and conspiracy to possess heroin with intent to distribute in violation of 21 U.S.C. § 846. Graham unsuccessfully appealed his conviction to this court. See United States v. Graham, 5 Cir., 1975, 521 F.2d 812 (no published opinion). The Supreme Court subsequently granted certiorari, and the Solicitor General then confessed error in the trial court's failure to give the jury an instruction for the lesser included offense of simple possession. Following the remand of Graham's case, Riggins also petitioned for certiorari and obtained a new trial.

Because Graham died in the interim, the second jury was concerned only with the charges against the defendant Riggins. On substantially the same evidence which was received in the first trial, Riggins was again found guilty and was sentenced to two consecutive ten-year terms followed by six years of special parole. The only issue on this appeal is the sufficiency of the evidence to support the conviction.

According to Graham's testimony given at the first trial, which was read into the record at the second trial, Riggins and Graham, both residents of Houston, made the lengthy trip to Eagle Pass, Texas, for the purpose of attending some Mexican nightclubs. The trip was made in a car, which was rented in the name of Riggins' wife. The rental agreement listed Riggins but not Graham as an authorized driver of the car. While in Eagle Pass, the two men stayed in room 22 of the Hillcrest Motel, a small room with two beds and a bath. Drug Enforcement Administration (DEA) Agent Anderson ordered surveillance of this room in response to an informant's tip that a heroin transaction was to occur there.

At about 12:15 p. m. on July 24, 1974, the DEA agents observed Riggins leave the motel room, place a phone call and then enter the room again. The next sign of activity was the arrival of a Mexican taxi with two males at approximately 12:50. The passenger of the cab entered the defendant's room and emerged roughly ten minutes later. At 2 p. m. Riggins and Graham were observed going to the vending machines at the motel. Following their return to the room, no further activity occurred until 4:30 p. m. when Riggins drove to the Pizza Hut to purchase some snacks. DEA agents testified that during Riggins' brief absence, Graham remained in the room and had no visitors. Movement was again observed at 2 a. m. the next morning. At that time the two men drove the rented car into Mexico where they remained until 11:30 a. m.

The defendants then returned to the motel, packed the car and proceeded to drive away from Eagle Pass. Concluding that the defendants were departing permanently, Agents McDonald and Clagg stopped the car about five miles from the motel. A search of the car disclosed a grocery bag on the right front floorboard which contained an empty cigarette package containing a powdery substance, later identified as 20 grams of heroin. At the time of the search, the DEA agents examined the physical condition of both Graham and Riggins. From this examination DEA Agent Clagg, a licensed pharmacist who had been with the DEA for over three years, concluded that neither man was under the influence of drugs or was a regular user of heroin.

In determining the sufficiency of the evidence supporting a jury's finding of guilt, we must view the record in the light most favorable to the Government. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Furthermore, we must remember that possession may be constructive as well as actual, that possession may be joint among several individuals, and that such possession may be proven by circumstantial evidence. See United States v. Hernandez, 5 Cir., 1973, 484 F.2d 86, 87; United States v. Stephenson, 5 Cir., 1973, 474 F.2d 1353, 1355; United States v. Mendoza, 5 Cir., 1970, 433 F.2d 891, 896, cert. denied, 401 U.S. 943, 91 S.Ct. 953, 28 L.Ed.2d 225 (1971). Under...