318 F2d 719 Doherty v. United States

318 F.2d 719

Kenneth DOHERTY, Appellant,
v.
UNITED STATES of America, Appellee.

No. 18459.

United States Court of Appeals Ninth Circuit.

June 11, 1963.

J. Stacey Sullivan, Jr., San Diego, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Crim. Section, and Russell R. Hermann, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before HAMLEY, KOELSCH and BROWNING, Circuit Judges.

HAMLEY, Circuit Judge.

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1

Kenneth Doherty, having waived a jury, was tried by the court, and convicted, of knowingly importing into the United States from Mexico, contrary to law with intent to defraud the United States approximately four pounds, two ounces of marihuana, in violation of 21 U.S.C. § 176a. He appeals from the judgment and sentence thereupon entered contending that the finding of guilt is not supported by substantial evidence.

2

On November 22, 1960, Doherty was a passenger in an automobile owned and operated by Eugene P. Knight, on a trip from San Diego, California to Tijuana, Mexico, and return. When they re-entered the United States at about 11:00 P.M. that night at the San Ysidro Customs Port the vehicle and men were searched. No marihuana was found on the person of either man but two bricks of marihuana were found wrapped on a shelf underneath the hood of the vehicle. Knight pleaded guilty to a charge of smuggling this marihuana into the United States.

3

To convict Doherty on the charge lodged against him the Government had the burden of proving that Doherty had knowledge of Knight's illegal activity on the day in question and participated therein. See Gonzales v. United States, 9 Cir., 301 F.2d 31, 32.

4

Both Doherty and Knight testified that Doherty went along with Knight just for the ride, believing that Knight's purpose in going to Tijuana was to have work done on his car at an upholstery shop. They both testified that Doherty at no time had knowledge that Knight obtained marihuana in Tijuana, or that Knight had secreted marihuana in the car.

5

The trial court was not required to accept their testimony. It was still necessary, however, for the Government to produce direct or circumstantial evidence of sufficient substance to warrant a finding of knowledge and participation by Doherty. About all that was shown was that Doherty, who had previously been convicted of possessing narcotics, had known Knight about five years; that Knight had been a marihuana "pusher" in Utah and had once been convicted of armed robbery; and that at the time of the search Doherty had in his possession identification papers belonging to one Neal.1

6

This evidence may give rise to a suspicion and speculation concerning Doherty's knowledge of, and participation in, Knight's smuggling activity on November 22, 1960, but this is not enough.

7

The judgment is reversed and the cause is remanded with directions to dismiss the count of the indictment under which this conviction was obtained.

Notes:

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1

Doherty pleaded guilty to a charge of illegal entry into the United States on the day in question, in violation of 18 U.S.C. § 1407 and was sentenced to prison for three years