459 F2d 1033 United States v. Carrion

459 F.2d 1033

UNITED STATES of America, Plaintiff-Appellee,
Thomas Garcia CARRION, Defendant-Appellant.

No. 71-2506.

United States Court of Appeals,
Ninth Circuit.

May 9, 1972.

Myra Anderson Ketchum, of Ketchum & Ketchum, Burlingame, Cal., for defendant-appellant.

James L. Browning, Jr., U. S. Atty., F. Steele Langford, Paul Fitzpatrick, Asst. U. S. Attys., San Francisco, Cal., for plaintiff-appellee.

Before DUNIWAY, TRASK, and CHOY, Circuit Judges.


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Thomas Garcia Carrion appeals his conviction for conspiracy to sell L.S.D. tablets in violation of 18 U.S.C. Sec. 371.1


He raises two questions: (1) were the declarations of alleged co-conspirators made in furtherance of the conspiracy properly admitted, and (2), was the evidence sufficient to support the conviction?


On February 19, 1970, undercover agent Clark called Hughey who had previously sold him L.S.D. tablets, in order to purchase more. After a great deal of telephoning, Hughey, Clark and Valitano, who was Hughey's employer, went to Carrion's home where the purchase was to be made. There Carrion offered marijuana cigarettes and talked of his drug dealings. He promised quick delivery of 4,000 tablets at a parking lot. Valitano drove Carrion and Clark to the parking lot where Carrion got into a second car. Clark followed and arrested him, and approximately 4,000 L.S.D. tablets were found in the source car. All of the participants were arrested.


The trial judge found that the record (which is barely outlined here) was ample to show an adequate connection on the part of all participants for the purpose of making their acts and declarations admissible. We agree. See Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Carbo v. United States, 314 F.2d 718 (9th Cir. 1963).


Appellant also challenges the sufficiency of the evidence. As to this, he faces the rule that the evidence must be viewed in the light most favorable to the government, where as here, the jury found in favor of the United States. Glasser v. United States, supra; United States v. Yaple, 450 F.2d 308 (9th Cir. 1971). We find the evidence clearly sufficient, and the judgment is affirmed.


At the time of conviction in this case, the sale of L.S.D. tablets violated 21 U.S.C. Sec. 331(q) (2), Drug Abuse Control Amendments of 1965, Sec. 5, Pub.L. No. 89-74, 79 Stat. 226, repealed by Comprehensive Drug Abuse Prevention and Control Act of 1970, Sec. 701(a), Pub.L. No. 91-513, 84 Stat. 1236. For the current statute see 21 U.S.C. Sec. 841