United States v. Duke, 27673.

• Decision Date: 25 February 1970
• Docket Number: No. 27673.,27673.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Washington Forest DUKE and John Richard Liles, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

423 F.2d 387 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. Washington Forest DUKE and John Richard Liles, Defendants-Appellants.

No. 27673.

United States Court of Appeals, Fifth Circuit.

February 25, 1970.

Arturo C. Gonzalez, Del Rio, Tex., for appellants.

Seagal V. Wheatley, U. S. Atty., Warren N. Weir, Asst. U. S. Atty., San Antonio, Tex., for appellee.

Before RIVES, GOLDBERG and GODBOLD, Circuit Judges.

RIVES, Circuit Judge:

Duke and Liles appeal from judgments of conviction based upon a jury's verdict of guilty on each of three counts involving heroin.¹ The critical question presented for review is whether the evidence of their possession of the heroin is sufficient to sustain their convictions.

The validity with respect to heroin of the last paragraph of 21 U.S.C. 174 (n. 1, supra), making possession of heroin sufficient evidence to authorize conviction, has been sustained once they were convicted. Turner v. United States, 1970, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610. There the Court recognized that, "given the statutory inference and absent rebuttal evidence, as far as a defendant is concerned the § 174 crime is the knowing possession of heroin."

A Winston cigarette package containing approximately 83.6 grams of heroin was found under the right front seat of an automobile occupied by the three principals. Specifically, the question is whether there is sufficient evidence from which the jury could properly determine that either one or both of the defendants had knowing possession of the heroin.

The question of the sufficiency of the evidence was properly raised by motions for judgment of acquittal both at the close of the government's evidence and at the close of all the evidence. See Rule 29, Fed.R. Crim.P. The standard by which this Court reviews denial of such a motion has been repeatedly stated, and need be but briefly summarized. Only the motion made at the close of all the evidence need be considered. We consider the evidence and the inferences therefrom in the light most favorable to the government. Upon such consideration, we must decide whether a reasonable-minded jury might fairly conclude guilt beyond a reasonable doubt, or, as otherwise stated in circumstantial evidence cases, whether the jury might reasonably deduce from the evidence inferences which exclude every reasonable hypothesis but that of guilt.²

We proceed to scrutinize the evidence and inferences which the jury might reasonably draw therefrom in the light most favorable to the government.

The three principals, Liles, Duke and Sanchez, were arrested about eight miles west of Del Rio, Texas, in a 1960 model Buick sedan bearing a Washington State license. Underneath the right front seat, Customs Agent Wilson found a Winston cigarette package which contained 83.6 grams of heroin. According to Agent Wilson, heroin sells in the Del Rio area for from $25.00 to $30.00 per gram, so the 83.6 grams would have sold for between $2,000.00 and $2,500.00. Each of the three men denied ownership of or any knowledge of the heroin. Liles admitted ownership of the car. Duke was driving, Sanchez was on the right front seat, and Liles was in the back seat. At the trial, Customs Agents Wilson and Kuykendall and both of the defendants Liles and Duke testified.

There was no evidence to connect any of the three principals, Liles, Duke or Sanchez, with narcotics previous to the offenses for which Liles and Duke were convicted. Liles had lived in Moses Lake, Washington, for eight years, where he had bought and sold used cars, sold hair wigs, worked as a technician on vending machines, and been a bartender. This was Liles' first trip to Texas or to Mexico.

Duke lived in Las Vegas, Nevada, with his wife and two children. He worked for the Government at the Nevada testing ground as a laborer, but was laid off because of a reduction in forces. Duke and Liles met in Las Vegas in 1966 and became good friends. Duke had been to Washington one time previously. He had returned there in June 1968 looking for a job, or so he claimed.

Liles and Duke were Negroes. Sanchez was a Latin American migrant worker who originally lived with his parents in Crystal City, Texas, but went to the State of Washington to work in the beet field harvest. At the time of his arrest he was renting a house in Moses Lake, Washington, where he had left his pregnant wife and a small child. Liles testified that Sanchez had been living in Moses Lake, Washington, for four years and that he and Sanchez had become good friends. Duke testified that he had met Sanchez on his earlier trip to Washington.

Liles and Duke undertook to testify to the purpose of the long trip. According to Liles, Sanchez had a vacation coming. Liles' continued testimony gives about as clear purpose of the trip as was stated.

"He was working as a — drove a lifting — operated a lifting machine, and he worked through his vacation, and he had taken off, you know, after the vacation was over, and he worked, and worked, so then he came to a point to where he took off, okay, so now he asked me if I would like to go to Texas with him, you know, and he don\'t own an automobile himself, so I told him, I says, `No, I never been to Texas before but,\' I says, `it might be a good idea, but,\' I said, `I will have to take off also.\' Now, at this particular time Mr. Duke was out there, he came up there on a job. So, in the process of all of this, Mr. Duke\'s mother is from Texas, and they had broke down, you know, on the highway and had car trouble on the way back, so then it was really a good idea to drive down. Then after we got halfway down there, well, then her sister or somebody in the family had made it possible for them to get back home, so then we decided we\'d just come on in anyway, and then Mr. Sanchez lived in Crystal City, and he said he had some clothes and things he wanted to pick up, you know, various things, so we thought it was a good idea, so we just drove down here, and like I said, we had never been down here, so like I said, well, we wanted to see it."

The three, Liles, Duke and Sanchez, left on the journey from Moses Lake, Washington, to Del Rio, Texas, and Ciudad Acuna, Mexico, about June 25, 1968. They drove continuously, stopping only for gasoline or food, by-passing Los Angeles and by the shortest route to El Paso, Texas, through Arizona and New Mexico on to Del Rio, Texas, where they arrived about June 28. On June 29, Customs Agent Wilson noticed the 1960 model Buick sedan bearing the Washington State license, and belonging to Liles, in the zone of prostitution in Ciudad Acuna. From time to time between June 29, 1969 and July 5, 1969, Wilson observed Liles' car in Ciudad Acuna, in Del Rio and at the International Border. On each of those occasions, Wilson observed only Liles and Duke in the car. He first observed Sanchez in the car as the three were departing from Del Rio on July 5.

The three first spent several days in a motel in Del Rio and then moved to a little hotel in Ciudad Acuna, Mexico, where the rates were cheaper, and remained for a few days. Ciudad Acuna is located immediately across the boundary line from Del Rio, Texas. While in Mexico, the three went to shows, bought souvenirs, rode cabs, listened to music, and slept. They occasionally returned to Del Rio to make phone calls and eat. On the morning of July 5, 1968, Duke and Liles drove the car from Ciudad Acuna to Del Rio, but no search or inspection was conducted by the border inspectors because of instructions left with them by Agent Wilson. During that day, July 5, Sanchez went to a bank in Crystal City, Texas, and obtained a loan for $300.00, for which he signed a note. In the afternoon of July 5, the two customs agents concealed themselves in a room at a motel across the street from the Piggly Wiggly grocery store parking lot and observed the Buick with the Washington State license plate drive into that lot. As it entered, Duke was driving and Liles was seated in the right front seat. No other occupant of the car was visible to the agents. Liles left the car, walked toward the entrance of the grocery store, and was out of sight of the customs agents for about five minutes. When he returned to the car he got into the rear seat, the car drove to a gasoline station and thence to Leslie's Chicken Shack, where they spent approximately 30 minutes, and thereafter to a small complex of buildings containing a liquor store and shoe repair shop, where they spent from 30 to 45 minutes, during which time they used the telephone. The customs agents did not see Sanchez get in the car. Liles testified, however, that they parked at the shoe repair shop waiting on Sanchez; that

"We were sitting in the back of the car, and as I say I don\'t know the exact time, but anyway a truck pulled up, I don\'t know whether it was a Chevvy or what, but

...