Frank Rios, Jr. v. United States

Appellant was convicted by a jury on two counts of facilitating the sale and transportation of heroin in violation of 21 U.S.C.A. § 174 . The jurisdiction of the district court was predicated on 18 U.S.C.A. § 3231 , and this court has jurisdiction of the appeal pursuant to 28 U. S.C. §§ 1291, 1294.

Counsel for appellant characterizes “any appeal as one chance in a million,” and that “the whole appeal process is ruled into predetermined absurdity.” He states “there are no disputed facts whatsoever in this entire record or the Reporter’s Transcript.” Yet he says the appellant denied what the police officer had testified to concerning the participation by Rios in facilitating the transportation and sale of heroin. This police testimony, says counsel for appellant, only “implies” knowledge of the violation, of the narcotic laws by the defendant Rios, and only “suggests by words of the officer” that the appellant was remotely connected with the traffic. Despite his disapproval of appellate procedures, he asks a reversal of the conviction by this appeal.

From the transcript we read that defendant Rios was sitting in his Chevrolet automobile with his six year old son at a service station. Somewhere between six and twenty feet away an undercover officer was attempting to make a purchase and obtain delivery of heroin. Co-defendant Garcia, also known as “Tito,” approached the agent, Gjertsen, displayed a packet with a number of white capsules in it and said (testimony of Gjertsen on direct examination):

Thus, according to the testimony of the agent Gjertsen, appellant Rios knowingly transported Garcia to the place where both Garcia and Rios could buy narcotics. Garcia stated not only that he had gone to get the narcotics with Rios in Rios’ Chevrolet, but that Rios had driven him part of the way back. Garcia returned with the heroin.

Thus there was substantial evidence to support the verdict of the trial court, unless we assume agent Gjertsen testified falsely. We are required to regard the evidence and all’ inferences that may be drawn therefrom most favorably in support of the judgment of the trial court. Sandez v. United States, 9 Cir., 1956, 239 F.2d 239 . We cannot substitute our judgment for that of the trier of facts below where there is a conflict in the evidence. Glasser v. United States, 1941, 315 U.S. 60, 80 , 62 S.Ct. 457 , 86 L.Ed. 680 .

“Facilitate,” as used in this statute ( 21 U.S.C.A. § 174 ), has been defined as follows: “to make easy or less difficult; to free from difficulty or impediment; as to facilitate the execution of a task.” Cellino v. United States, 9 Cir., 1960, 276 F.2d 941, 943 ; Bruno v. United States, 9 Cir., 1958, 259 F.2d 8 ; Pon Wing Quong v. United States, 9 Cir., 1940, 111 F.2d 751. There was here proof appellant facilitated a sale of narcotics within the meaning of that word in the statute.

Appellant next charges prejudicial misconduct on the part of government counsel in argument to the jury. Appellant misquotes the evidence, interprets it to suit his purpose, and relies on wild flights of oratorical fancy. Such cannot take the place of hard facts, represented by the language of the transcript.

There is no merit in this, or any, aspect of this appeal. The judgment of conviction is affirmed.