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484 F2d 1274 United States v. Ogden

484 F.2d 1274

UNITED STATES of America, Plaintiff-Appellee,
v.
Theresa Ann OGDEN, Defendant-Appellant.

No. 73-1428.

United States Court of Appeals,
Ninth Circuit.

Sept. 19, 1973.
Rehearing Denied Oct. 26, 1973.

J. A. Milchen (argued), San Diego, Cal., for defendant-appellant.

William A. Bower, Asst. U. S. Atty. (argued), Harry D. Steward, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before CHAMBERS and CHOY, Circuit Judges, and LUCAS,* District Judge.

PER CURIAM:

1

Theresa Ogden was convicted after a nonjury trial of conspiracy to possess and possession with intent to distribute forty-six pounds of marijuana in violation of 21 U.S.C. Secs. 841(a)(1), 846. She was sentenced to two-year terms of imprisonment under 18 U.S.C. Sec. 4208(a)(2) on each count to run concurrently. We affirm.

2

The exact Fourth Amendment issues raised by appellant were decided in favor of the government position in the companion case of United States v. Ogden, -F.2d-(9th Cir. 1973).

3

We must view the evidence in the light most favorable to the government on this appeal. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). Mrs. Ogden was in Nebraska when her husband, David Ogden, was growing and harvesting marijuana and was aware of his activities. She was traveling with him to Monterey, California at the time of their arrest and had in her possession claim checks to three pieces of baggage which contained either contraband or paraphernalia for making marijuana bricks. The trier of fact was not compelled to believe Mrs. Ogden's self-serving story, corroborated by her husband, that she was not involved in the growing, harvesting, and distribution of marijuana. United States v. Cisneros, 448 F.2d 298 (9th Cir. 1971). We agree with the conclusion of the district court that the evidence was sufficient to convict Mrs. Ogden.

4

The trial judge properly complied with Rule 23(c), F.R.Cr.P., by filing the findings of fact in a memorandum decision, although subsequently to sentencing.

5

Affirmed.

*

The Honorable Malcolm M. Lucas, United States District Judge for the Central District of California