467 F2d 1375 United States v. Navallez

467 F.2d 1375

UNITED STATES of America, Plaintiff-Appellee,
Armando Xavier NAVALLEZ, Defendant-Appellant.

No. 72-1759.

United States Court of Appeals,
Ninth Circuit.

Oct. 12, 1972.
Rehearing Denied Nov. 8, 1972.

R. Lamar Couser (argued), Tucson, Ariz., for defendant-appellant.

F. Michael Carroll, Asst. U. S. Atty. (argued), David S. Hoffman, Asst. U. S. Atty., William C. Smitherman, U. S. Atty., Tucson, Ariz., for plaintiff-appellee.

Before ELY and GOODWIN, Circuit Judges, and FERGUSON, District Judge.*


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Navallez appeals from his conviction of having violated 21 U.S.C. Sec. 841(a) (1). The charge arose out of Navallez' alleged participation in the illegal importation of marijuana into the United States and his alleged possession of the same with the intent to distribute it illegally. In his appeal, Navallez presents three contentions. First, he argues that there was inadequate probable cause for his arrest and that, hence, certain incriminating evidence discovered in a search incident to his arrest should have been suppressed. We reject this contention upon our conclusion that the prosecution's evidence was sufficient to establish the necessary probable cause for the arrest. Next, Navallez argues that the evidence was insufficient to justify the jury's determination, beyond a reasonable doubt, of his guilt. This argument, too, is without merit. Navallez was implicated by the testimony of one who participated in the transaction, and this testimony, when viewed in the light most favorable to the Government, was more than adequate to support the conviction.


Finally, Navallez contends that the court improperly submitted to the jury an instruction in respect to Navallez' alleged flight. Navallez had been present when a certain vehicle was loaded with the marijuana in question and had directed the driver of this vehicle to the place where the contraband was to be obtained. Shortly afterward Navallez had driven away in another vehicle, and when this vehicle was chased and apprehended by the police, Navallez left the vehicle and undertook to conceal himself in a brush or wooded area near the location where he abandoned the automobile which he had driven away from the pursuing officers at high speed. In these circumstances, the jury was entitled to consider the instruction relating to Navallez' flight. There is no contention that the instruction was technically imperfect, and the court committed no error in submitting it.

The judgment of conviction is




Honorable Warren J. Ferguson, United States District Judge, Los Angeles, California, sitting by designation