United States v. Hernandez, 73-1823 Summary Calendar.

• Decision Date: 30 August 1973
• Docket Number: No. 73-1823 Summary Calendar.,73-1823 Summary Calendar.
• Citation: 484 F.2d 86
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Angel HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

484 F.2d 86 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Jose Angel HERNANDEZ, Defendant-Appellant.

No. 73-1823 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

August 30, 1973.

Francis P. Maher, Laredo, Tex., for defendant-appellant.

Anthony J. P. Farris, U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Before GEWIN, COLEMAN and MORGAN, Circuit Judges.

PER CURIAM:

This is an appeal from a judgment of conviction for unlawfully, knowingly, and intentionally possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1970).¹ After accepting Hernandez's waiver of trial by jury, the district court conducted a bench trial and found him guilty of the aforementioned offense. We affirm.

On appeal, Hernandez challenges the sufficiency of the evidence to support a finding that he was in possession of the marijuana seized by special agents from a truck owned but not operated by him at the time of seizure. A careful review of the record impels us to conclude that there is no merit in his contention.

The evidence marshaled at trial, when viewed in a light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Arroyave, Posada & Barragan, 477 F.2d 157, 163 (5th Cir. 1973), supports the finding of constructive possession.² Approximately one week after his arrest, Hernandez confessed that he was to be paid $100 for the use of his pick-up truck and for his assistance in loading the marijuana.³ At trial, Hernandez protested his innocence and explained that his decision to tender the confession was motivated by the hope of getting his bond lowered. Whether this explanation vitiated the import of the assistance he confessed to rendering was a factual question for the trial court. The district court, after assessing Hernandez's credibility, may have been unswayed by his explanation. Our only task is to determine whether the confession coupled with additional circumstantial evidence indicating Hernandez was within the vicinity of the situs where the marijuana was being loaded,⁴ when viewed in a light most favorable to the government, supports a finding of constructive possession. We feel that it does.

For the reasons set forth above, we affirm the judgment of the district court.

Affirmed.

* Rule 18, 5th Cir. See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

1 21 U.S.C. § 841 (1970) provides as follows:

(a) Except as authorized by this subchapter, it shall be unlawful for any person to knowingly or intentionally —

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;

2 It is beyond...