335 F2d 546 Morales v. United States

335 F.2d 546

Simon Hernandez MORALES, Appellant,
v.
UNITED STATES of America, Appellee.

No. 19214.

United States Court of Appeals Ninth Circuit.

Aug. 10, 1964.

David C. Marcus, Los Angeles, Cal., for appellant.

Francis C. Whelan, U.S. Atty., Thomas R. Sheridan, Asst. U.S. Atty., Chief, Criminal Section, Robert H. Filsinger, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, Circuit Judge, MADDEN, Judge, United States Court of Claims, and MERRILL, Circuit Judge.

PER CURIAM.

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1

The sole question here involves the sufficiency of the evidence to support the conviction of the appellant. The trial court, sitting without a jury, found appellant guilty of one count of concealing and facilitating the transportation of marihuana, and not guilty on a second similar count. The trial court in a separate trial found the appellant not guilty of a prior conviction.

2

Appellant points to inconsistencies in the testimony of codefendant Martinez (who delivered the marihuana to Morales, in the presence of various government agents), and relies heavily on the testimony of defense witness Sanchez supporting appellant's position.

3

Appellant admits there appears in the record substantial contrary evidence given by the codefendant Martinez, and various unimpeached government agents, but asserts that the government's evidence was not sufficient to sustain the conviction. We disagree.

4

Appellant's argument is valid before a trial judge, but once the trial judge has determined which version of the conflicting evidence he chooses to believe, such a determination on a question of fact (which is not inherently improbable or incredible) is binding on this court.

5

The judgment is affirmed.