United States v. Childs, 71-2472

Decision Date23 March 1972
Docket NumberNo. 71-2472,71-2473.,71-2472
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Elijah Wallace CHILDS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. John Thomas CHILDS, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

J. Mathias Myers, R. Lamar Couser, Tucson, Ariz., for defendants-appellants.

Stephen M. McNamee, Asst. U. S. Atty. (argued), Richard K. Burke, U. S. Atty, Tucson, Ariz., for plaintiff-appellee.

Before BROWNING and GOODWIN, Circuit Judges, and LUCAS,* District Judge.

PER CURIAM:

The only question requiring discussion on these appeals from convictions under 21 U.S.C. § 176a is whether, particularly in light of United States v. Carrion, 457 F.2d 200 (9th Cir. 1972), there was sufficient evidence to permit the jury to conclude that the marihuana had been unlawfully imported and that appellants knew that it had been unlawfully imported.

These elements of the offense may be established, of course, by circumstantial evidence. United States v. Oswald, 441 F.2d 44 (9th Cir. 1971); United States v. Elder, 425 F.2d 1002 (9th Cir. 1970).

The relevant events occurred in the vicinity of Lukeville, Arizona, the port of entry from Mexico on State Route 85. About 3 o'clock in the afternoon of the day in question, John Childs drove across the border to Sonoita, Mexico, approximately two miles south of Lukeville. He was accompanied by several persons, including Phillip Celaya. They returned across the border about 8:00 p. m. At approximately 11:00 p. m. a Customs agent stationed in a roadside rest area on Route 85 about three quarters of a mile north of Lukeville saw a car containing three persons (later identified as John and Elijah Childs, who were cousins, and Phillip Celaya) approach from the north and turn off on a rough, unimproved dirt road, less than two miles long, that angled east and south to the international boundary fence.

No one lived on the road. It passed through desert lands, sparsely covered with cactus and creosote brush, to an abandoned farm house and coral. It was used by a man who ran cattle in the area and occasionally drove his truck to the corral. It was also known to be used by smugglers of narcotics or marihuana, who either crossed the international border fence with contraband or picked up contraband at the fence; for this reason the road was kept under surveillance by Customs agents.

Some 25 minutes after entering the dirt road, appellants' car returned along the road to Route 85 with only its parking lights on. The car turned north, away from the border. The Customs agent pursued it. When the agent signaled the car to stop by turning on his red light, a paper package was thrown from the car. The sack contained two packages of marihuana weighing about one and a half pounds. The two packages were wrapped and sealed in the distinctive manner in which marihuana from Mexico is customarily wrapped and sealed. No marihuana is grown in the Lukeville area.

The car was owned and driven by Elijah Childs. John Childs was in the right front seat. Phillip Celaya was in the back seat. John Childs was wearing a T-shirt. Phillip Celaya's shirt had long sleeves. The marihuana had been thrown from the right front window of the car, and the arm of the thrower was bare.

Appellants were not charged with smuggling the marihuana from Mexico but with receiving, concealing, and transporting it after it had been unlawfully imported. From the recited facts — John Childs' trip earlier in the day to Mexican territory just across the border from the dirt road; the notorious use of the road as part of a smuggling route from Mexico; the lateness of the hour and the absence of any other reason for appel...

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5 cases
  • U.S. v. Flickinger, s. 76-2656
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • March 24, 1978
    ...intent can be drawn from circumstantial evidence. United States v. Kaplan, 554 F.2d 958, 964 (9th Cir. 1977); United States v. Childs, 457 F.2d 173, 174 (9th Cir. 1972); United States v. Oswald, 441 F.2d 44, 47 (9th Cir. The involvement of the participants in all aspects of this saga provid......
  • U.S. v. Kaplan
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • May 26, 1977
    ...926, 93 S.Ct. 1356, 35 L.Ed.2d 587 (1973). An inference of criminal intent can be drawn from circumstantial evidence. United States v. Childs, 457 F.2d 173 (9th Cir. 1972); United States v. Oswald, 441 F.2d 44 (9th Cir. We agree with the trial judge that the jury could reasonably have infer......
  • U.S. v. Seni, s. 81-5006
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • October 26, 1981
    ... . Page 277 . 662 F.2d 277 . UNITED STATES of America, Appellee, . v. . Victor Jacob SENI, Appellant. . UNITED ... Carrion has been characterized as "borderline." United States v. Childs, 457 F.2d 173 (9th Cir. . Page 287 . 1972). What takes the present ......
  • In re McKinney, 05-84385.
    • United States
    • United States Bankruptcy Courts. Seventh Circuit. U.S. Bankruptcy Court — Central District of Illinois
    • May 17, 2006
    ......892 . In re Lonnie E. McKINNEY, Debtor. . No. 05-84385. . United States Bankruptcy Court, C.D. Illinois. . May 17, 2006. . . Page 893 . ......
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