United States v. William F. Ferguson

555 F.2d 1372 UNITED STATES of America, Plaintiff-Appellee, v. William F. FERGUSON, Defendant-Appellant. No. 77-1074. United States Court of Appeals, Ninth Circuit. June 8, 1977. Roger S. Auerbach, Auerbach & Freeman, Tucson, Ariz., for defendant-appellant. William C. Smitherman, U. S. Atty., Gerald S. Frank, Asst. U. S. Atty., Tucson, Ariz., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before BROWNING, KILKENNY and TRASK, Circuit Judges. OPINION PER CURIAM. 1 Appellant was convicted of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). He appeals on two grounds. We affirm. 2 Appellant was apprehended driving a van near the Mexican border, after seismic sensors indicated foot and vehicular traffic in that area. Searches of the van revealed a strong marijuana odor, marijuana debris, and several blankets. Backtracking led to the discovery of four sets of footprints paralleling the van's tracks, four men who ran across the border, and a cache of 1833 pounds of marijuana, some of which was wrapped in blankets of the same type as those found in appellant's van. Further backtracking led…

Appellant was convicted of possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1). He appeals on two grounds. We affirm.

Appellant was apprehended driving a van near the Mexican border, after seismic sensors indicated foot and vehicular traffic in that area. Searches of the van revealed a strong marijuana odor, marijuana debris, and several blankets. Backtracking led to the discovery of four sets of footprints paralleling the van’s tracks, four men who ran across the border, and a cache of 1833 pounds of marijuana, some of which was wrapped in blankets of the same type as those found in appellant’s van. Further backtracking led to a spot where the van had parked. The same four sets of footprints led back and forth between this spot and the cache of marijuana, and between the cache and the place where the marijuana had apparently been thrown over the border fence.

The Government’s theory was that the marijuana was loaded into the van but subsequently removed when the van developed radiator problems, and that appellant was arrested while en route to arrange alternative transportation. Defendant testified he was hired to pick up the…

dissenting:

Appellant was found not guilty of Count I of the indictment which charged that he “did knowingly and intentionally import into the United States of American from Mexico approximately 1,833 pounds of . . . marijuana.” This verdict is consistent with the findings of the Drug Enforcement Administration agent who testified that he found horse tracks to the Mexican side of the fence and four sets of footprints on the American side of the boundary and leading up to the stash. Ferguson’s footprints were not among those. (R.T. at 54). The “import” was made by throwing the bags of marijuana over the fence and then transporting them to the point where they were found. There is not the slightest evidence that appellant had anything to do with that handling of the marijuana. Possession in the sense of actual physical custody and control over the marijuana was therefore in the persons who left those tracks and made the stash. Ferguson, was not one of those four. These are the same footprints observed between the marijuana cache and the van. (R.T. at 51). If the marijuana was ever transferred from the stash into the van, which is speculative, it must have been retransferred back to…