United States v. Leopoldo Avila Gonzalez

Ninth Circuit

United States v. Leopoldo Avila Gonzalez

456 F.2d 1067, 1972 U.S. App. LEXIS 10803

CourtCourt of Appeals for the Ninth Circuit

DecidedMarch 13, 1972

Docket71-2452

StatusPublished

Cited by8 cases

This text of 456 F.2d 1067 (United States v. Leopoldo Avila Gonzalez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Leopoldo Avila Gonzalez, 456 F.2d 1067, 1972 U.S. App. LEXIS 10803 (9th Cir. 1972).

Pincite

Opinion

PER CURIAM:

Border officials at Calexico, California, discovered substantial amounts of marijuana and heroin secreted in an automobile driven by Avila-Gonzalez, the appellant. A jury found him guilty on two counts of violating 21 U.S.C. § 174 and two counts of violating 21 U.S.C. § 176a. He received four concurrent five-year sentences. We affirm the conviction.

Appellant testified that he had borrowed the car from a friend and that he had no knowledge of the contraband until the border officials discovered it. He challenges the sufficiency of the evidence to support the conviction. Numerous decisions in this circuit hold that knowing possession may be inferred from the act of driving a narcotics-laden automobile across the border. See, e.g., United States v. Ascolani-Gonzalez, 449 F.2d 159 (9th Cir.1971); Eason v. United States, 281 F.2d 818 (9th Cir.1960).

Appellant questions the applicability of the statutory presumption [21 U.S.C. § 174] to situations in which some doubt exists about the issue of knowing possession. Once the jury determines that a defendant knowingly possessed the heroin, it can legitimately apply the statutory presumption of § 174. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 2 L.Ed.2d 610 (1970). We see no reason why the presumption should not apply with equal force when the element of possession is demonstrated by circumstantial rather than direct evidence.

The appellant also claims that the Constitution guarantees him a jury composed at least in part of Mexican-Americans. A criminal defendant has no constitutional right to a proportionate number of his race or ethnic group on the jury that tries him. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Appellant did not allege there was any systematic exclusion of Mexican-Americans from the jury panel.

The conviction is affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

Border officials at Calexico, California, discovered substantial amounts of marijuana and heroin secreted in an automobile driven by Avila-Gonzalez, the appellant. A jury found him guilty on two counts of violating 21 U.S.C. § 174 and two counts of violating 21 U.S.C. § 176a. He received four concurrent five-year sentences. We affirm the conviction.

Appellant testified that he had borrowed the car from a friend and that he had no knowledge of the contraband until the border officials discovered it. He challenges the sufficiency of the evidence to support the conviction. Numerous decisions in this circuit hold that knowing possession may be inferred from the act of driving a narcotics-laden automobile across the border. See, e.g., United States v. Ascolani-Gonzalez, 449 F.2d 159 (9th Cir.1971); Eason v. United States, 281 F.2d 818 (9th Cir.1960).

Appellant questions the applicability of the statutory presumption [21 U.S.C. § 174] to situations in which some doubt exists about the issue of knowing possession. Once the jury determines that a defendant knowingly possessed the heroin, it can legitimately apply the statutory presumption of § 174. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 2 L.Ed.2d 610 (1970). We see no reason why the presumption should not apply with equal force when the element of possession is demonstrated by circumstantial rather than direct evidence.

The appellant also claims that the Constitution guarantees him a jury composed at least in part of Mexican-Americans. A criminal defendant has no constitutional right to a proportionate number of his race or ethnic group on the jury that tries him. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965). Appellant did not allege there was any systematic exclusion of Mexican-Americans from the jury panel.

The conviction is affirmed.

United States v. Darrell Calhoun, United States of America v. Andrew Sheppard, United States of America v. Joe T. Harris, United States of America v. James E. Ellis, United States of America v. Clifford Burston, United States of America v. James William Wimbley, United States of America v. Calvin Stephenson

542 F.2d 1094 (Ninth Circuit, 1976)

United States v. Calhoun

542 F.2d 1094 (Ninth Circuit, 1976)

United States v. Juan Andres Sotelo Martinez, United States of America v. Randolph Stephens AKA Randolph Sidle (True Name)

514 F.2d 334 (Ninth Circuit, 1975)

United States v. Leon Dudley Noah, United States of America v. Richard R. Stuart, United States of America v. Willie Willingham and Abraham Griffin, United States of America v. Virgil Metcalf, United States of America v. Humphrey Ross

475 F.2d 688 (Ninth Circuit, 1973)

United States v. Noah

475 F.2d 688 (Ninth Circuit, 1973)

United States v. Jay B. Dixon

460 F.2d 309 (Ninth Circuit, 1972)

Cite This Page — Counsel Stack

Bluebook (online)

456 F.2d 1067, 1972 U.S. App. LEXIS 10803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-leopoldo-avila-gonzalez-ca9-1972.

Opinion

Related

Cite This Page — Counsel Stack