United States v. William F. Ferguson

555 F.2d 1372, 1977 U.S. App. LEXIS 13038

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 8, 1977
• Docket: 77-1074
• Status: Published

Opinions

OPINION

PER CURIAM.

Appellant was convicted of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). He appeals on two grounds. We affirm.

Appellant was apprehended driving a van near the Mexican border, after seismic sensors indicated foot and vehicular traffic in that area. Searches of the van revealed a strong marijuana odor, marijuana debris, and several blankets. Backtracking led to the discovery of four sets of footprints paralleling the van’s tracks, four men who ran across the border, and a cache of 1833 pounds of marijuana, some of which was wrapped in blankets of the same type as those found in appellant’s van. Further backtracking led to a spot where the van had parked. The same four sets of footprints led back and forth between this spot and the cache of marijuana, and between the cache and the place where the marijuana had apparently been thrown over the border fence.

The Government’s theory was that the marijuana was loaded into the van but subsequently removed when the van developed radiator problems, and that appellant was arrested while en route to arrange alternative transportation. Defendant testified he was hired to pick up the marijuana but repented; that he drove to the pickup area to tell the four men of his change of mind, and spent the night there after telling the four but without ever seeing the marijuana.

• [1] 1. Appellant first argues that evidence of the marijuana debris found in his van was inadmissible as proof of a separate offense. The debris was not offered or received for this purpose, however, but rather to show possession of the 1833 pounds of marijuana in the cache, on the theory that the debris was left behind when the contraband was removed from the van to allow repair of the van’s radiator.

Appellant argues that the debris was not shown to be marijuana by competent evidence. An experienced officer may identify a substance with which he is familiar. United States v. Almada-Aldama, 462 F.2d 952 (9th Cir. 1972). Officer Miller, who had considerable experience in identifying marijuana, testified that the debris was marijuana.

Appellant argues no connection was shown between the marijuana in the cache and the debris in the van. This is a variation of appellant’s argument that the evidence was insufficient, to which we turn.

2. Appellant’s contention that the evidence was insufficient to support the verdict is without merit. Appellant admitted that he was hired to pick up marijuana and that he went to the area in which the pickup was to be accomplished. The conflict is confined to whether he had possession (actual or constructive) of the marijuana, as the Government contends, or whether he changed his mind without acquiring possession, as appellant contends.

Appellant admittedly spent the night near the cache and the four persons who had smuggled the contraband across the border. The jury might reasonably conclude that such behavior was unlikely if appellant had decided to abandon the enterprise. Marijuana debris was found in the van,

* along with blankets of the type in which part of the cache of marijuana was wrapped. The tracks between the cache, the van, and the border, and appellant’s admission that he had radiator problems further supported the Government’s stand that the contraband had been loaded and unloaded. Appellant’s testimony regarding his statements to border officers conflicted in material respects with that of other witnesses. Some of the information appellant gave the officers was shown to be false. We are satisfied that the jury could reasonably have found appellant guilty of the charge against him beyond a reasonable doubt.

Affirmed.

The dissent concludes it is "completely unlikely” that the marijuana debris in the van came from the cache, because "all” the marijuana was packaged in butcher paper and cloth sacks. But one of the arresting officers testified (1) that 25 kilos of marijuana was not so packaged but rather was wrapped in a blanket, and (2) that he found pieces of the butcher paper in the area where the van had stopped.