United States v. Dennis Harlan Brown

454 F.2d 397 UNITED STATES of America, Plaintiff-Appellee, v. Dennis Harlan BROWN, Defendant-Appellant. No. 71-1223. United States Court of Appeals, Ninth Circuit. Jan. 24, 1972. Ralph C. Alldredge (argued), of Morrison, Foerster, Holloway, Clinton & Clark, San Fancisco, Cal., for appellant. Shelby R. Gott, Asst. U. S. Atty. (argued), Harry D. Steward, Stephen G. Nelson, Asst. U. S. Atty., Acting Chief, Crim.Div., San Diego, Cal., for appellee. Before ELY, TRASK and CHOY, Circuit Judges. CHOY, Circuit Judge. 1 Dennis H. Brown appeals his conviction by a jury of knowingly importing and transporting and concealing heroin and hycodan in violation of 21 U.S.C. Secs. 173 and 174. We affirm. 2 1. Brown argues that the evidence produced at trial was insufficient to sustain a verdict of guilty. This is admittedly a close case. But given the narrow scope of review of a verdict rendered by a jury, we find that there was sufficient evidence to support the guilty verdict. 3 The Government's first witness was Glen R. Burrow, a customs inspector at the San Ysidro port of entry, who testified that Brown walked across the Mexican border at about 1:20 a. m. on July 23, 1969. The second…

Dennis H. Brown appeals his conviction by a jury of knowingly importing and transporting and concealing heroin and hycodan in violation of 21 U.S.C. §§ 173 and 174. We affirm.

1. Brown argues that the evidence produced at trial was insufficient to sustain a verdict of guilty. This is admittedly a close case. But given the narrow scope of review of a verdict rendered by a jury, we find that there was sufficient evidence to support the guilty verdict.

The Government’s first witness was Glen R. Burrow, a customs inspector at the San Ysidro port of entry, who testified that Brown walked across the Mexican border at about 1:20 a. m. on July *398 23, 1969. The second prosecution witness was Jack Wells, another inspector, who testified that shortly after one o’clock on July 23, he inspected a 1959 Chevrolet pickup driven across the border from Mexico by Esther Mae Thulien. Her nervousness caused him to inspect the trunk, where he noticed that the holding clasp and nut which secured the spare tire were shiny rather than covered with dirt and dust. Deducing that the spare had been handled lately, Wells ordered a more thorough inspection of the pickup, which resulted in the discovery of…

(concurring):

I concur in the result. At the same time, I feel obliged to record my strong disagreement with the reasoning of United States v. Nelson, 419 F.2d 1237 (9th Cir. 1969), cited by the majority. When the Nelson court issued its opinion, I believed that its departure from a rule honored by time and still followed by most of the world’s English-speaking jurisdictions was wrong. I retain that belief, and when and if I am ever required to participate in the decision of a case wherein the applications of the Nelson test may be critical, I shall, if I have not then altered my views, fully explain them.