Andrew LUCERO, Appellant, v. UNITED STATES of America, Appellee; Frank E. MAESTAS, Appellant, v. UNITED STATES of America, Appellee, 311 F.2d 457

BREITENSTEIN, Circuit Judge. Appellants Lucero and Maestas were charged and tried jointly under a 3-eount 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. 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* 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 play even when established by circumstantial evidence.

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. Otherwise, an aider and abettor would be required to explain away not his possession but the possession of another. 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. The inference that Maestas had 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. 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. 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. As the information contained no conspiracy count we are not called on to decide whether possession by one conspirator is attributable to all. The claim of error in the instructions is without merit as no objections to the instructions were interposed in the trial court. An examination of the instructions discloses no plain error affecting substantial rights.

The judgment against Lucero is affirmed on all counts. The judgment against Maestas is affirmed on Count 1 and reversed on Count 2. . 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.