United States v. Briseno-Hernandez, 26233.

• Decision Date: 04 May 1971
• Docket Number: No. 26233.,26233.
• Citation: 441 F.2d 1094
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guillermo BRISENO-HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

441 F.2d 1094 (1971)

UNITED STATES of America, Plaintiff-Appellee, v. Guillermo BRISENO-HERNANDEZ, Defendant-Appellant.

No. 26233.

United States Court of Appeals, Ninth Circuit.

May 4, 1971.

Manuel Aranda, Jr., of Hidalgo, Aranda & Garcia, Los Angeles, Cal., for defendant-appellant.

Harry D. Steward, U. S. Atty., Robert H. Filsinger, Chief, Criminal Division, Phillip W. Johnson, Special Asst. to U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before DUNIWAY, ELY and HUFSTEDLER, Circuit Judges.

HUFSTEDLER, Circuit Judge:

Appellant was convicted for concealing and transporting illegally imported marihuana (21 U.S.C. § 176a) and illegally imported seconal pills (18 U.S.C. § 545). The unusual twist in this case is that appellant was caught trying to carry the contraband from the United States into Mexico.

A customs agent found a large cache of marihuana and pills in burlap bags hidden in a culvert about three miles north of the Mexican border. The area was placed under surveillance, and other agents searched the border. Two fresh sets of footprints led out of Mexico into the United States. The prints appeared to have been made by persons carrying heavy burdens. Similar prints were found near the culvert. The following afternoon an agent saw appellant approaching the culvert. Appellant dragged a bag of marihuana and a bag of seconal pills out of the culvert and hid them in some brush. He loaded into his Volkswagen the remaining two bags, together containing about 130,000 seconal pills. He drove toward Mexico until he was stopped and arrested less than a mile from the border.

After receiving a warning on his constitutional rights, appellant stated in substance that on the day before in Tecate, Mexico, a Mr. Vasquez offered him $100 to go into the United States and to "bring back some merchandise that was illegal." Vasquez paid him $65 in advance because if appellant were caught, he would be imprisoned for three or four months. Appellant also said that he left part of the contraband hidden because he could not fit all the bags into his trunk.

The area of the culvert was on a known smuggling route. The means of packaging the marihuana and the seconal were typically Mexican. One agent testified that in four years, he had never heard of a case of smuggling dope into Mexico. Appellant is bilingual. He lived in Los Angeles, and he had traveled in the border area.

There was ample evidence to prove that the contraband had been illegally imported from Mexico. The only question on appeal is the sufficiency of the evidence to support the jury's implied finding that appellant knew that it was illegally imported. We think that from the totality of the circumstantial evidence "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" appellant knew the contraband had been unlawfully imported into the United States. (See United States v. Nelson (9th Cir. 1969) 419 F.2d 1237, 1245.)

Appellant knew that he was to ...