George Anthony Rossetti v. United States

This is an appeal from a conviction-by a jury of knowingly aiding and abet- ting one Kasamis in smuggling thirty-five pounds of marijuana into the United States. 21 U.S.C. § 176a; 18 U.S.C. § 2 . The first point urged is the alleged insufficiency of the evidence to convict.

We have carefully reviewed the evidence introduced in the court below, the arguments made, and all instructions. While a close case is presented, we cannot conscientiously state there is insuf-' ficient substantial, though circumstantial, evidence from which the jury could not have found defendant guilty. The facts do not approach those found in Glover v. United States, 10 Cir., 1962, 306 F.2d 594 , and are more nearly similar to those found in O’Neal v. United States, 9 Cir., 1962, 310 F.2d 175 .

Appellant likewise claims error in the refusal to grant a new trial, because (a) the court admitted evidence .relative to “flight,” (b) failed to strike such evidence, and (c) instructed the jury on the theory of “flight.” We find no error. Flight does not create a presumption of guilt (McFarland v. United States, 5 Cir., 1960, 273 F.2d 417 , but: “ ‘It is to-day universally conceded that the fact of an accused’s…