William F. Gavin, San Diego, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section and Jo Ann Dunne, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before JERTBERG and MERRILL, Circuit Judges and WEIGEL, District Judge.

WEIGEL, District Judge.

Appellant and one Nuel Arnold Melton were charged in a two-count indictment with violations of Section 174, Title 21 United States Code. The first count charged a conspiracy to import heroin into the United States and to conceal, sell, transport and facilitate the concealment, sale and transportation of said narcotic drug, knowing the same to have been illegally imported. The second count charged the illegal importation of heroin.

Before trial Melton had jumped bond and disappeared. The trial court ordered severance, appellant acquiescing. Having waived a jury, appellant was tried by the court and convicted on both counts.

He now appeals on the ground that the evidence is insufficient to sustain the conviction. We consider this contention on its merits, although appellant failed to move for judgment of acquittal at the close of the case in the trial court. See Foster v. United States, 318 F.2d 684 (9th Cir., decided June 10, 1963).

As to the conspiracy count, we have concluded that the evidence is sufficient, whether the test applied is that used in Foster v. United States, supra,1 or that in Remmer v. United States, 205 F.2d 277 (9th Cir., 1953).2 Since the sentence imposed upon appellant did not exceed that provided for conviction on the conspiracy count alone, we do not reach the question as to the sufficiency of the evidence to sustain the conviction on the second count of the indictment. White v. United States, 317 F.2d 231 (9th Cir., 1963); Sinclair v. United States, 279 U.S. 263, 49 S. Ct. 268, 73 L. Ed. 692 (1929).

We turn now to a review of the evidence.

Appellant, previously convicted for smuggling marijuana, first met Melton when the two were in prison.3 Appellant was released from prison in January of 1959 and testified that he then went to live with his brother in San Leandro, California. There was conflicting testimony as to appellant's residence thereafter until July 18, 1959, the day Melton was apprehended in the attempt to smuggle heroin into the United States from Mexico. Appellant and witnesses called on his behalf testified that he was regularly resident at his brother's home in San Leandro. Next door neighbors of the Meltons, who lived in Costa Mesa, California, testified that appellant was regularly with the Meltons at their home for several months immediately preceding July 18. San Leandro, in northern California, is some four hundred miles distant from Costa Mesa, in southern California, approximately one hundred and twenty-five miles north of the Mexican border.

On July 18, 1959, Melton and his wife were stopped by government agents as they drove a 1949 or 1950 Studebaker two-door sedan from Mexico across the border to this country. The car was searched by the agents and a paper bag was found which contained over two pounds of heroin.4 As will be seen, there was evidence connecting appellant with having prepared a hiding place in the car for attempted secretion of the heroin.

A compartment was located at each side of the back seat of this car. These compartments, which appeared to the trial judge to be standard equipment, were screwed to the floor and rested against the rear side panels of the car. The tops, which were hinged so as to allow them to be opened, were upholstered and could be used as armrests.

In the course of the search at the border, the agents removed the compartment at the left of the rear seat. The heroin was found there, lying between the compartment and the metal side of the car. The trial judge stated, after examining the car at the trial, that it looked as if some cardboard and upholstery material had been cut away from this area to make the recess in which the heroin was found.

A married couple who lived next door to the Melton's house in Costa Mesa testified that on the afternoon of July 18, 1959, they observed appellant and Melton, in front of the latter's house, working on the Studebaker. They testified that Melton and appellant were working inside the car, at the left rear side, behind the driver's seat, that the rear seat had been removed from its usual position and was leaning against the rear seat back, one end on the floor, the other end at the rear window, that they saw tools lying about outside the car and that, when appellant and Melton finished working on the car, Melton and his wife drove off in it, leaving appellant behind.

Following the arrest of Melton at the border that same night, agents went with Mrs. Melton to the Melton home, at about 3:00 A.M. on July 19, 1959. Their testimony was that appellant was inside, talking on the telephone when they entered. He was then heard by one agent to say: "Here they come now." He turned and, seeing the agents, immediately hung up the phone.5 He then told an agent that he was baby-sitting while the Meltons went to the market, but he testified that he was baby-sitting while they went to the doctor.

Neighbors testified that appellant lived with the Meltons from the middle of March, 1959. Appellant made conflicting statements about this. An agent testified that appellant told him on the morning of July 19 that he had just arrived that day in Costa Mesa for a visit, having flown down from San Leandro and taken a taxi from the airport. Later he changed his statement and said either that he had driven down or come on the bus. Another agent testified that at the time of arrest on August 28, 1959, appellant stated that July 18 was the only time he had ever been at the Melton's home. Appellant testified that he lived in San Leandro during all this time, but that he had visited Melton in June as well as in July. He testified that he arrived by bus on the latter occasion.

The car registration was in the name of "A. Welton", with Melton's address thereon. It was found in the car. The certificate of ownership, or pink slip, was found in appellant's wallet. It had been endorsed in blank by the signature "A. Welton", which was, according to the testimony of a handwriting expert, written by Melton. Thus, the bearer, appellant, could have asserted ownership by signing it and sending it in to the Department of Motor Vehicles.

Appellant also gave conflicting stories as to the car. On July 19, he told an agent that he had borrowed the car from one "Joe" in a bar and that Joe had given him the endorsed pink slip because appellant was thinking of buying the car. He said that he then lent the car to another person whose name he did not know. When appellant was later arrested, he stated to the agent that on July 18, he had bought the car from a dealer, had parked it in front of the Melton house, had left the keys on a living room table and had presumed that Melton had taken the car.6 However, next door neighbors testified that the car had been at Melton's home for several months before July 18 and that both appellant and Melton had been seen driving it frequently.

In the light of all of the foregoing, we cannot sustain appellant's claim, so far as it relates to the conspiracy count, that the evidence was insufficient. The judgment is affirmed.