Andrew Lucero v. United States of America, Frank E. Maestas v. United States, 311 F.2d 457, 10th Cir. (1963)

311 F.
2d 457
Andrew LUCERO, Appellant,

v.
UNITED STATES of America, Appellee.
Frank E. MAESTAS, Appellant,
v.
UNITED STATES of America, Appellee.
Nos. 7039, 7040.
United States Court of Appeals Tenth Circuit.

Nov. 30, 1962, Rehearing Denied in No. 7040, Dec. 21, 1962,
Certiorari DeniedMarch 4, 1963, See 83 S.Ct. 883.
Walter L. Gerash, Denver, Colo., for appellants.

Michael C. Villano, Asst. U.S. Atty. (Lawrence M. Henry, U.S. Atty., on
the brief), for appellee.
Before LEWIS, BREITENSTEIN and SETH, Circuit Judges.
BREITENSTEIN, Circuit Judge.
Appellants Lucero and Maestas were charged and tried jointly under a 3-count
information for violations of 21 U.S.C. 174, the counts differing only in the
dates and the quantities of heroin. The trial court sustained Maestas' motion for
judgment of acquittal on Count 3. The jury found Lucero guilty on all counts
and Maestas guilty on Counts 1 and 2.
Lucero's claim of entrapment is without merit. The record shows no luring of

an innocent person into the commission of a crime but rather the offer by a
federal agent of an opportunity to one who has the intent to commit a crime. In
such circumstances there is no entrapment.1
Both Lucero and Maestas attack the constitutionality of 174 but the issue has
been consistently resolved against them both by this circuit and by the Supreme
Court.2
Maestas presents a serious problem of the sufficiency of the evidence. Section

174 proscribes certain dealings in unlawfully imported narcotic drugs by a
person knowing of the unlawful importation and provides that proof of
possession 'shall be deemed sufficient evidence to authorize conviction unless
the defendant explains the possession to the satisfaction of the jury.' The record
shows no actual possession of heroin by Maestas and the information contains
no conspiracy charge. To sustain the conviction of Maestas the government
contends that he had constructive possession and that he is guilty as an aider
and abettor within the purview of 18 U.S.C. 2.
The conviction on the first count depends on the testimony of federal agent
Wolski who, after relating that through the introduction of a third party he had
met Lucero and Maestas in a Colorado Springs tavern, testified thus:
'My conversation started with Mr. Maestas, who was sitting across from me
and I asked him how much a half ounce of heroin would cost me. He said $250.
I asked him the quality and he told me that this heroin could be cut down the
middle. Cutting down the middle means to double it. I took out $300 out of my
pocket, counted out $250, putting the remaining $50 back in my pocket and
asked Mr. Maestas if the deal was to go down here in the booth. He says, 'No,
not here,' and he turned to Mr. Lucero and talked in Spanish. Then I directed my
conversation to Mr. Lucero and Mr. Lucero tells me, 'Give the money to
Willie.' Mr. Maestas had been introduced to me as Willie and in turn Mr.
Lucero was introduced to me as Carlos. So, I told him no. I said, 'The money is
going to go with me until we see the stuff.' So we finally get out of the booth.
Mr. Lucero and I were leaving the tavern and he turned around and he said,
'Did you give the money to Willie?' I says no. He says, 'All right, come on,' so
we left the tavern.'
Shortly thereafter Lucero delivered a package containing heroin to the agent.

No evidence was offered by the defendants.
The questions arising over the construction and application of 174 in cases
where an agent has dealt with two persons, only one of whom had actual
possession of the narcotics, have been discussed comprehensively in the recent
cases of United States v. Jones, 2 Cir., 308 F.2d 26, and Hernandez v. United
States, 9 Cir., 300 F.2d 114. Any review which we might make of the
precedents there considered would have only cumulative value.
Section 174 provides that proof of possession is sufficient evidence to authorize

conviction unless that possession is explained to the satisfaction of the jury.
This provision eliminates the necessity of proof by the prosecution that the
heroin was unlawfully imported and that the accused had knowledge of such
unlawful importation. Constructive possession is enough to bring the statutory
provision into play3 even when established by circumstantial evidence. 4
10
In the prosecution of an aider and abettor the government may not rely on the
statutory provision unless the aider and abettor is shown to have had actual or
constructive possession. 5 Otherwise, an aider and abettor would be required to
explain away not his possession but the possession of another.6
11
The issue is whether Maestas had constructive possession. The evidence on

Count 1 shows that Maestas was the moving party, that he vouched for the
quality of the heroin, and that he set the price. Actual delivery was made by
Lucero after Maestas had talked to Lucero in Spanish. The evidence shows
more than mere participation in a narcotics transaction. 7 The inference that
Maestas has control over, and was able to assure delivery of, the heroin is
reasonable. He may not escape the consequences of his conduct by avoiding
actual contact with the contraband drug.
12
While we hold the evidence sufficient to sustain the conviction of Maestas on

Count 1, we reach a contrary conclusion on Count 2. During the Count 1
transaction the agent gave Lucero his Denver phone number. About three
weeks later Lucero called the agent and arranged a meeting at a Denver
cocktail lounge. When the agent arrived there, he saw Maestas sitting in a car
nearby. He approached Maestas who told him Lucero was in the lounge. Later
Lucero and the agent walked to a spot several blocks away where Lucero
delivered heroin to the agent. While they were returning to the lounge, Maestas
drove by and talked to Lucero in Spanish. Soon thereafter Lucero left the agent
and entered the car driven by Maestas.
13
In this episode Maestas made none of the arrangements, was not moving party,
and did nothing from which constructive possession may be inferred. He was in
the vicinity and drove Lucero away after the transaction was completed. We
have recently held that suspicion of guilt is not enough to sustain a conviction
and that guilt may not be inferred from mere association.8 As the information
contained no conspiracy count we are not called on to decide whether
possession by one conspirator is attributable to all.
14
The claim of error in the instructions is without merit as no objections to the

instructions were interposed in the trial court.9 An examination of the
instructions discloses no plain error affecting substantial rights.
15
The judgment against Lucero is affirmed on all counts. The judgment against
Maestas is affirmed on Count 1 and reversed on Count 2.
16
SETH, Circuit Judge (dissenting as to defendant Maestas).
17
I dissent on the ground that the conviction of Maestas was based upon the
statutory presumptions which can only arise from possession of narcotics, and
such possession was not established. This conclusion is reached reluctantly and
with full appreciation for the serious nature of the charges, and the revulsion
we all have for traffic in narcotics, and for all those in any way associated with
such activities.
18
The meaning of the word 'possession' in the statute and as it has been construed
by other courts requires a much stronger showing of dominion and control by
Maestas than was made in this case. Under 21 U.S.C. 174, it is of course
required that the heroin be imported into the United States illegally and that the
defendant have knowledge that it was so imported. Provision is also made that
if it be shown the defendant had possession of the narcotics, such possession
shall be sufficient for conviction unless it is satisfactorily explained to the jury.
There is no evidence of any knowledge as to the importation; consequently
reliance is placed by the government on the statutory presumptions arising
from possession. Necessarily before these presumptions arise, a showing must
be made that the defendant either had constructive or actual possession of the
heroin. The only basis to support the conviction of Maestas was that he was an
aider and abettor. The same elements of the offense must be proved as to an
aider and abettor as any principal, and it must be proved that he shared the
criminal intent of a principal. Johnson v. United States, 195 F.2d 673 (8th Cir.);
Hernandez v. United States, 300 F.2d 114 (9th Cir.). In the absence of any
evidence of knowledge of unlawful importation, it must be shown that the aider
and abettor had 'possession' of the drug. Also in the absence of a satisfactory
explanation, this possession is sufficient evidence to authorize conviction (21
U.S.C. 174). How may possession in the aider and abettor Maestas be shown to
support a conviction in the absence of his actual or physical possession? The
only contention that can be made by the government is that Maestas had
constructive possession or possession was somehow imputed to him by the
actual possession shown to have been in his co-defendant. There was no charge
of conspiracy.
19
To constitute constructive possession, the party charged must have the drug in
his control or under his dominion. Rodella v. United States, 286 F.2d 306 (9th
Cir.). Thus if the evidence shows that Maestas was able to control the drug or
cause it to be produced, he would have constructive possession although a third
person might have physical possession, Rodella v. United States, supra, but this
was not shown. This control or dominion could be shared with others and not
destroy the constructive possession, Gallegos v. United States, 237 F.2d 694
(10th Cir.), and further such constructive possession may be established by
circumstantial evidence, Hernandez v. United States, supra, but again this was
not shown. The actual relationship or connection between the co-defendants
Maestas and Lucero was not established; an inference can be easily drawn that
there was some connection between them. However, the most that was shown
as to Maestas on count one was that he and Lucero were together in a tavern
when the agent arrived, that they talked to the agent together, that Maestas told
the agent the price of heroin, the quality, and that the deal could not be made in
the tavern. Lucero told the agent to pay Maestas but the agent refused until he
saw the 'stuff.' Lucero and the agent left the tavern and Lucero later delivered
the drugs and took the money. As to count two, Maestas was shown to be in the
vicinity, knew Lucero was in a nearby cocktail lounge, indicated everything
was all right, and after the sale by Lucero, out of Maestas' presence, had some
conversation with Lucero and left with him (Lucero here again made the
delivery and received the money). There is no evidence that Maestas had such
dominion or control over the drugs that he could cause them to be produced
through or by Lucero or anyone else, nor did he arrange the sale. Further there
was no evidence that Lucero and Maestas jointly had control or dominion. The
evidence does demonstrate that Lucero could and did produce the drugs for
each sale and was paid. It must be concluded that Maestas did not have
constructive possession of the drugs within the meaning of 21 U.S.C. 174.
20
Since Maestas did not have constructive possession but his co-defendant Lucero
had actual possession, may this be somehow imputed to Maestas? No
conspiracy was charged and thre was no proof of any other type of joint
undertaking whereby Maestas was shown to have dominion or control over the
drug solely or jointly with Lucero or others. The control is the ultimate test and
the legal tag on the relationship between these co-defendants is not particularly
helpful. The court in Hernandez v. United States, supra, said:
21
'We are convinced, on the other hand, that an interpretation of the term
'possession' in Section 174, which would include the possession of a third
person, not on trial, with whom defendant has entered into a common scheme
or plan or whom he has aided or abetted, but whose possession of narcotic
drugs he has neither shared nor controlled, would be inconsistent with the
language, the structure, and the purposes of the statute.'
The court then said:
22
'As we have seen, a definition of 'possession' in terms of dominion and control

is amply supported by authority; constructive possession is as much a form of
legal possession as is physical custody. But 'possession' of a third person
'imputed' to the defendant is not, in legal terminology, 'possession' of the person
to whom it is attributed at all. It is instead the physical or constructive
possession of another, for which the defendant is to be made liable. Thus the
use of the phrase 'imputed possession' begs the question at issue, which is
precisely whether the defendant is to be made liable for the possession of the
third person in the circumstances of this case.'
23
Thus there is no basis to impute the possession of Lucero to Maestas by reason

of some association between them which the proof does not disclose.
24
The Second Circuit considered this general problem in United States v. Santore,
290 F.2d 51 (2d Cir.), but the court was evenly divided. Later in Jones v.
United States, 308 F.2d 26 (2 Cir.), the problem was again considered by the
same court en banc. The facts briefly were that the agent met Jones who took
him to a person named Charlie. Jones in the absence of the agent talked to
Charlie and then told the agent he would be able to get the heroin at $150.00 an
ounce. Shortly thereafter in the presence of Jones, Charlie handed the heroin to
the agent and received the money. Charlie then told the agent to deal with him
and not anyone else. The court held that Jones did not have possession, and
said:
25
'Nothing in the record indicates that Jones had any independent control over the
narcotics, or over Moore, or that he was able to assure to Brown that he could
produce narcotics. And, unless we are to read the statutory phrase 'possession
of the narcotic drug' to mean merely 'participation in a transaction involving the
narcotic drug' we cannot rely on constructive possession here to affirm the
conviction below.'
26
The facts of the case at bar may be somewhat stronger than Jones but not
sufficiently so to bring about a different result nor to make the reasoning less
applicable.
27
This court has recently considered a similar situation arising from the
association of several persons charged with narcotic violations in Glover v.
United States, 306 F.2d 594 (10th Cir.), and held that the proof as to
participation by Glover was not sufficient. There the facts as to Glover's
participation are quite similar to the case at bar.
28
The evidence did not show possession in Maestas either directly or by

circumstantial evidence, and I would reverse as to Maestas.
Sandoval v. United States, 10 Cir., 285 F.2d 605, 607
See Griego v. United States, 10 Cir., 298 F.2d 845, 848, and cases there cited
United States v. Santore, 2 Cir., 290 F.2d 51, 76, certiorari denied 365 U.S.
834, 81 S.Ct. 745, 5 L.Ed.2d 743; 365 U.S. 835, 81 S.Ct. 745, 5 L.Ed.2d 743,
745; Cellino v. United States, 9 Cir., 276 F.2d 941, 946
Gallegos v. United States, 10 Cir., 237 F.2d 694, 698. Cf. Sadler v. United
States, 10 Cir., 303 F.2d 664, 665
United States v. Jones, 2 Cir., 308 F.2d 26, 31
Ibid. p. 33
Cf. United States v. Hernandez, 2 Cir., 290 F.2d 86, 90, in which the court said:
'* * * a person who is sufficiently associated with the persons having physical
custody so that he is able, without difficulty, to cause the drug to be produced
for a customer can also be found by a jury to have dominion and control over
the drug, and therefore possession.'
Glover v. United States, 10 Cir., 306 F.2d 594, 595
Rule 30, F.R.Crim.P.; Burns v. United States, 10 Cir., 286 F.2d 152, 157

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311 F.

Andrew LUCERO, Appellant,

United States Court of Appeals Tenth Circuit.

Walter L. Gerash, Denver, Colo., for appellants.

Lucero's claim of entrapment is without merit. The record shows no luring of

Maestas presents a serious problem of the sufficiency of the evidence. Section

Shortly thereafter Lucero delivered a package containing heroin to the agent.

Section 174 provides that proof of possession is sufficient evidence to authorize

The issue is whether Maestas had constructive possession. The evidence on

While we hold the evidence sufficient to sustain the conviction of Maestas on

The claim of error in the instructions is without merit as no objections to the

SETH, Circuit Judge (dissenting as to defendant Maestas).

'As we have seen, a definition of 'possession' in terms of dominion and control

Thus there is no basis to impute the possession of Lucero to Maestas by reason

The evidence did not show possession in Maestas either directly or by

Sandoval v. United States, 10 Cir., 285 F.2d 605, 607

United States v. Jones, 2 Cir., 308 F.2d 26, 31

Glover v. United States, 10 Cir., 306 F.2d 594, 595

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