United States v. Danilo Bautista Batimana and Jose Edgardo Noguera

Appellants, Batimana and Noguera, and a third defendant, Samuel Nicanor, 1 were convicted by a jury of conspiring to import and possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 841 (a)(1), 846, 952(a), 960(a)(1), and 963 (Count One), and possession with intent to distribute heroin, in violation of 21 U.S.C. § 841 (a)(1) (Count Two). Each was placed on probation for five years. Appellants contend that there was insufficient evidence to support their convictions.

Nicanor and a man named Virgilio Delin had arranged to have Edgardo Lavadia bring 500 grams of heroin from the Philip-pinnes for delivery to Nicanor in Los Ange-les. Unbeknownst to Nicanor and Delin, Lavadia had been arrested by Philippine police, and had agreed to cooperate in identifying his associates.

Accompanied by Philippine and American narcotics officers, Lavadia flew to Los An-geles with the heroin on October 2, 1978. Nicanor met him at the airport with appellants. Appellants followed Nicanor and Lavadia from the boarding area to the baggage area, waited outside the baggage area for 45 minutes, and then drove to the Marriott Hotel in one car, while Nicanor and Lavadia drove in another. The…

concurring:

I concur in the court’s result in all respects. I concur with the reasoning in parts I and III of the opinion. As for part II, I agree that neither Batimana’s nor Nogu-era’s participation rose to a level that would make them aiders and abettors. Even if their participation had reached that level, however, accessorial liability, like other theories of vicarious liability, requires a guilty principal. The only person who could have committed the crime of possession was Ni-canor. The evidence in this case was insufficient to establish that Nicanor was guilty of possession.

This case presents a “controlled delivery” situation in which Lavadia was under close police direction from the time he purchased the heroin through the time he handed it over to Nicanor. Although Nicanor might have actually been physically holding the heroin at the time of his arrest, it does not establish that he was in either actual or constructive possession of the drugs. The defendant must be able to exercise “dominion and control” over the contraband in order to establish actual or constructive possession. Arellanes v. United States, 302 F.2d 603 (9th Cir.), cert. denied, 371 U.S. 930 , 83 S.Ct.…

623 F.2d 1366 6 Fed. R. Evid. Serv. 1278 UNITED STATES of America, Plaintiff-Appellee, v. Danilo Bautista BATIMANA and Jose Edgardo Noguera, Defendants-Appellants. No. 79-1269, 79-1270. United States Court of Appeals, Ninth Circuit. Submitted Dec. 5, 1979. Decided July 22, 1980. Arthur Mabry, Victor B. Kenton, Los Angeles, Cal., for defendants-appellants. Mark E. Kalmansohn, Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before WRIGHT, HUG, and FLETCHER, Circuit Judges. HUG, Circuit Judge: 1 Appellants, Batimana and Noguera, and a third defendant, Samuel Nicanor, 1 were convicted by a jury of conspiring to import and possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 841 (a)(1), 846, 952(a), 960(a) (1), and 963 (Count One), and possession with intent to distribute heroin, in violation of 21 U.S.C. § 841 (a)(1) (Count Two). Each was placed on probation for five years. Appellants contend that there was insufficient evidence to support their convictions. 2 Nicanor and a man named Virgilio Delin had arranged to have Edgardo Lavadia bring 500 grams of heroin from the…