446 F2d 645 United States v. Clarillo

446 F.2d 645

UNITED STATES of America, Plaintiff-Appellee,
v.
Fernando Luis CLARILLO, Defendant-Appellant.

No. 71-1569.

United States Court of Appeals, Ninth Circuit.

August 3, 1971.

George Hunt, San Diego, Cal., for defendant-appellant.

Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before DUNIWAY, HUFSTEDLER and WRIGHT, Circuit Judges.

PER CURIAM:

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1

Clarillo stands convicted on all counts of a three-count indictment charging him with conspiring to import, importing, and facilitating the transportation of nine ounces of heroin, all in violation of 21 U.S.C. § 174. On appeal he challenges the sufficiency of the evidence to support his conviction.

2

Without detailing all of the evidence, we find it sufficient. Clarillo was implicated in the conspiracy by statements of his co-conspirator indicating that he was an active participant. Moreover, he was present when the heroin was delivered, physically received it and tested it for weight, and put it in his pocket. Viewing the evidence in the light most favorable to the government we hold that the trier of fact could reasonably conclude that appellant was guilty. United States v. Nelson, 9 Cir., 1969, 419 F.2d 1237, 1243-1245. Appellant's reliance on Nelson for the "reasonable hypothesis other than guilt" test in reviewing the sufficiency of evidence to support criminal convictions is misplaced. That is precisely the test that Nelson rejected as "confusing and incorrect."

3

Affirmed.