409 F2d 604 Machado v. United States

409 F.2d 604

Jose Parra MACHADO, Appellant,
v.
UNITED STATES of America, Appellee.

No. 23191.

United States, court of Appeals Ninth Circuit.

Feb. 25, 1969.

S. James Chapman (argued), San Diego, Cal., for appellant.

Joseph C. Milchen (argued), Asst. U.S. Atty., Edwin L. Miller, U.S. Atty., San Diego, Cal., for appellee.

Before CHAMBERS and KOELSCH, Circuit Judges, and WHELAN,1 District Judge.

CHAMBERS, Circuit Judge:

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1

The sufficiency of the evidence in this marijuana smuggling case is not questioned.

2

Machado, in 1965, under questioning at the San Ysidro border station, decided to flee back to Mexico. His flight was successful, but he had left behind an Oldsmobile car with 70 pounds of marijuana in it and his wallet with his alien immigration card in it. This has his picture on it.

3

Three years later, Machado came back to the American side to get his immigration card. And, he thus walked into the hands of the federal officers. He had an alibi about loss of the card, which has obviously been rejected.

4

Officer Mullen in 1965 carefully studied Machado's picture on the card after Machado fled. Mullen did not see the picture again.

5

After Machado was arrested in 1968, Mullen saw Machado in a lineup and identified him on the basis of memory. He also identified Machado in court. Somehow, says Machado, Mullen's taking time to examine (memorize) the picture Machado left behind poisons the subsequent identification. And, apparently Mullen made no studied effort to confuse himself. We do not think Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, or any other case required Officer Mullen to do a thing different from what he did.

6

The judgment of conviction is affirmed.

1

The Honorable Francis C. Whelan, United States District Judge, Central District of California, sitting by designation