United States of America, Plaintiff-appellee, v. Angel Licel Salcedo, Aka Jose Salgado Martinez, Aka Angellicel Saucedo, Defendant-appellant, 452 F.2d 1201 (9th Cir. 1971)

Appellant stands convicted of smuggling heroin into the United States. 21 U.S.C. § 174. On appeal, he contends that the evidence supporting his conviction was insufficient and the district court should have granted his motion for a new trial based on allegedly improper remarks by counsel for a co-defendant in his argument to the jury.

We have examined the record and, viewing the evidence in a light most favorable to the verdict, hold that a jury could reach a rational conclusion that appellant was guilty beyond a reasonable doubt. Sablan v. Guam, 434 F.2d 837 (9th Cir. 1970); United States v. Nelson, 419 F.2d 1237, 1242 (9th Cir. 1969).

Appellant was tracked by a Border Patrol Agent from the border to a ditch where he was hiding. The time was between 11:00 p. m. and midnight. He was taken to the Port of Entry and turned over to officials there while the Border Patrol Agent returned to the point of apprehension. There he found a switchblade knife and a container with heroin. The appellant admitted ownership of the knife, but denied possession of the heroin.

As to the claim of improper argument by counsel for a co-defendant, the contention was waived by the failure to object and, taken in light of the court's admonition that arguments of counsel are not evidence, was not sufficiently prejudicial or erroneous to amount to plain error affecting substantial rights. Fed. R. Crim. P. 52(b). Moody v. United States, 376 F.2d 525, 532 (9th Cir. 1967).

The judgment is affirmed.