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UNITED STATES of America, Plaintiff-Appellee, v. Jose Angel HERNANDEZ, Defendant-Appellant

United States Court of Appeals for the Fifth Circuit1973-08-30No. No. 73-1823
484 F.2d 86

Summary

Holding. The appellate court affirmed the conviction, holding that the evidence—primarily Hernandez's confession that he permitted use of his truck and would assist in loading marijuana for payment, together with circumstantial evidence placing him at the scene—was sufficient to establish constructive possession of the marijuana under the applicable legal standard.

Jose Angel Hernandez was convicted after a bench trial of unlawfully possessing marijuana with intent to distribute in violation of federal law. The marijuana was seized from a pickup truck that Hernandez owned but was not driving at the time. On appeal, Hernandez contested whether the evidence proved he possessed the drugs, arguing he did not actually handle or control them.

The appellate court upheld the conviction based on constructive possession—a legal theory that someone can possess contraband without physically holding it. The court found that Hernandez's own confession, made about a week after arrest, established that he agreed to allow his truck to be used and would receive $100 for assisting with loading the marijuana. Although Hernandez later claimed he confessed only to obtain a lower bond and that he was actually in a wooded area observing from a distance, the trial judge found his explanation unpersuasive. The court concluded that his confession, combined with circumstantial evidence placing him near the loading site, satisfied the legal standard for constructive possession.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether evidence proved constructive possession of marijuana when the defendant owned but did not operate the vehicle containing the drugs
  • Whether a confession made one week after arrest was reliable and sufficiently supported a finding of possession
  • Whether the trial court properly evaluated the defendant's credibility in rejecting his explanation for the confession

Procedural posture

Hernandez appealed his bench trial conviction for drug possession with intent to distribute, challenging the sufficiency of evidence to prove he possessed the marijuana.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

PER CURIAM:

This is an appeal from a judgment of conviction for unlawfully, knowingly, and intentionally possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (1970). After accepting Hernandez’s waiver of trial by jury, the district court conducted a bench trial and found him guilty of the aforementioned offense. We affirm.

On appeal, Hernandez challenges the sufficiency of the evidence to support a finding that he was in possession of the marijuana seized by special agents from a truck owned but not operated by him at the time of seizure. A careful review of the record impels us to conclude that there is no merit in his contention.

The evidence marshaled at trial, when viewed in a light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Arroyave, Posada & Barragan, 477 F.2d 157, 163 (5th Cir. 1973), supports the finding of constructive possession. Approximately one week after his arrest, Hernandez confessed that he was to be paid $100 for the use of his pick-up truck and for his assistance in loading the marijuana. At trial, Hernandez protested his innocence and explained that his decision to tender the confession was motivated by the hope of getting his bond lowered. Whether this explanation vitiated the import of the assistance he confessed to rendering was a factual question for the trial court. The district court, after assessing Hernandez’s credibility, may have been unswayed by his explanation. Our only task is to determine whether the confession coupled with additional circumstantial evidence indicating Hernandez was within the vicinity of the situs where the marijuana was being loaded, when viewed in a light most favorable to the government, supports a finding of constructive possession. We feel that it does.

For the reasons set forth above, we affirm the judgment of the district court.

Affirmed.

. 21 U.S.C. § 841 (1970) provides as follows :

(a) Except as authorized by this subehap-ter, it shall be unlawful for any person to knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance;

. It is beyond cavil that possession may be either constructive or actual, see, e. g., Montoya v. United States, 402 F.2d 847, 850 (5th Cir. 1968). The finding of the district court rested on the unarticulated assumption that Hernandez’s possession in the instant case was constructive.

. It is conceded that Hernandez had been fully apprised of his Miranda rights at the time when he offered the confession.

. We need not decide whether, absent Hernandez’s confession, the circumstantial evidence adduced at trial was sufficient to support a finding of constructive possession. This evidence established that Hernandez learned of the intended use of the truck after he had permitted Tito Patino to use it, the driver of the truck at the time of seizure. Hernandez claimed that from a wooded area adjacent to the crossing point on the Rio Grande he had observed the truck being loaded. He explained his presence there by the fact that while he had no ante cedent knowledge that this was the place where his truck was to be loaded, he nevertheless had heard that this particular situs was the customary crossing point for loading marijuana. The testimony of Special Agent Joe Ewing that when I-Iernandez was apprehended, his clothes were soiled with mud, suggests that Hernandez had been near the river and not, as he maintained, in the wooded area. No one testified, however, that Hernandez had in fact assisted in loading the truck.