United States v. Domingo Manuel-Baca

Appellant Baca was convicted of violating 21 U.S.C. § 174 , by verdict of a jury.

On October 14, 1967, about 9:00 P.M., a Nogales, Arizona, police officer, Sgt. Salmon, saw Baca and a companion named Duran, coming down a steep hill near the International Boundary. There was no roadway or path on the hill, “It is just grass”. The boundary is marked with an 8-foot fence. In October, 1967, in the area in which Baca and Duran were seen descending the hill, there were three holes in the fence — one about half *782 way up the hill, one three-quarters of the way, and the third, a big hole, was “way up the hill”.

When Baca came off the hill he took off his coat and folded it on his right arm. As Salmon approached the two men Baca started to walk away. Salmon ordered him to return to the sidewalk with Duran. He did so and “hanged” his coat on his left shoulder. When Salmon asked for identification, Baca first opened his coat by placing both hands within the garment. At this point Officer Salmon noticed the reflection of “something shiny” inside the coat. Baca then dropped his hand and reached into his shirt pocket and handed Salmon his driver’s license. When asked what they were doing in…

(dissenting) :

I respectfully dissent.

This court, of course, cannot usurp the function of the jury in deciding factual issues. Neither can it abdicate its duty to review the sufficiency of the evidence to sustain a jury’s determination of guilt.

That evidence is missing here.

I can accept the majority’s conclusion that the evidence, albeit thin, was sufficient to have sustained a finding that either Baca or Duran had possession of the heroin and that the possessor dropped it on the sidewalk. But I cannot join in the conclusion that the evidence was sufficient to sustain the jury’s decision that Baca was that possessor.

The sole evidence in the record to which the majority can advert to sustain the jury’s necessary finding that Baca was the possessor is the testimony of Officer Salmon that he saw something shiny in Baca’s coat and the testimony of Inspector Jenkins that the packet of heroin was shiny. That Baca was the possessor depended upon proof that the object Salmon saw in Baca’s coat was the packet of heroin later found on the sidewalk. Officer Salmon was the only witness who saw both the object in Baca’s coat and the heroin packet. He and he alone would have known if…

421 F.2d 781 UNITED STATES of America, Appellee, v. Domingo MANUEL-BACA, Appellant. No. 23079. United States Court of Appeals, Ninth Circuit. Jan. 26, 1970. 1 Alan Saltzman (argued), Hollywood, Cal., for appellant. 2 Jo Ann D. Diamos (argued), Asst. U.S. Atty., Richard K. Burke, U.S. Atty., Tucson, Ariz., for appellee. 3 Before DUNIWAY and HUFSTEDLER, Circuit Judges, and BYRNE, * district judge. BYRNE, District Judge: 4 Appellant Baca was convicted of violating 21 U.S.C. 174, by verdict of a jury. 5 On October 14, 1967, about 9:00 P.M., a Nogales, Arizona, police officer, Sgt. Salmon, saw Baca and a companion named Duran, coming down a steep hill near the International Boundary. There was no roadway or path on the hill, 'It is just grass'. The boundary is marked with an 8-foot fence. In October, 1967, in the area in which Baca and Duran were seen descending the hill, there were three holes in the fence-- one about half way up the hill, one three-quarters of the way, and the third, a big hole, was 'way up the hill'. 6 When Baca came off the hill he took off his coat and folded it on his right arm. As Salmon approached the two men Baca started to walk away. Salmon ordered him to…