author: GODBOLD, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Robert PHILLIPS and William Arnold Tolbert, Jr., Defendants-Appellants.
    No. 73-1230.
    United States Court of Appeals, Fifth Circuit.
    July 15, 1974.

      Philip A. Gillis, Detroit, Mich., for defendants-appellants.
    Anthony J. P. Farris, U. S. Atty., Robert Darden, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.
    Before WISDOM, GODBOLD and IN-GRAHAM, Circuit Judges.
   GODBOLD, Circuit Judge:

The appellants were convicted in a nonjury trial for possession of 230 pounds of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). The contraband was discovered on May 5, 1972, in the locked trunk of an automobile rented and driven by Phillips and in which Tolbert was a passenger, and as a result of an immigration search conducted by border patrol officers at a highway checkpoint.

We know these facts about the search in question. The checkpoint was located approximately 11 miles north of Laredo, Texas, (approximately 9 miles north of the city limits), on highway 35, the main highway from Laredo north to San Antonio. As the crow flies the point was three and a half to four miles from the Rio Grande River, the international boundary. It may fairly be inferred from overall consideration of this and other cases, that the government employs a checkpoint with at least some degree of regularity a few miles north of Laredo on the main highway to San Antonio.

The location at which Phillips and Tolbert were stopped was divided into primary and secondary search areas. At around 8:00 a. m. the officers on duty were conducting what they termed a “blitz,” checking for illegal aliens by stopping every vehicle that came through and opening the trunk of some or all. They referred to this time of day as the “changeover period” (the appellation was unexplained), and there was testimony that this was a time when many vehicles were coming through and “we have had occasion to have other people try to bring aliens through the checkpoint at the changeover time.” Officers were working in shifts, and the 8:00 a. m. to 4:00 p. m. shift was on duty, comprising at least three officers. Stop signs were up to stop vehicles.

A search of automobiles for aliens under the circumstances of this case is valid. See United States v. DeLeon, 462 F.2d 170 (CA5, 1972), cert. denied, 414 U.S. 853, 94 S.Ct. 76, 38 L.Ed.2d 102 (1973); United States v. McDaniel, 463 F.2d 129 (CA5, 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973). Once the search in the present case was begun, it was legitimate for the officers to look wherever there was room for an alien to hide, and to seize evidence of other crimes if it was in plain view. See United States v. McDaniel, supra. Thus the District Court did not err in denying appellants’ motion to suppress the marijuana found in the trunk of the rented car.

We turn to the sufficiency of the evidence to establish that Tolbert knowingly possessed the marijuana. Both the possession and the knowledge of possession can be proved by circumstantial evidence, e. g., Montoya v. United States, 402 F.2d 847 (CA5, 1968), and possession may be actual or constructive but in any event there must be dominion and control over the item or a power to exercise dominion and control. There are numerous caveats that go along with cases of circumstantial evidence of knowing possession. No term is more ambiguous in common speech and in legal terminology than the word “possession,” especially when it occurs in criminal statutory provisions, and “it is so fraught with danger that the courts must scrutinize its use with all diligence.” Guevera v. United States, 242 F.2d 745 at 747 (CA5, 1957). “It is easy to get the eye off the target in a case like this, to focus so precisely on the inviting bullseye of the defendant’s failure to give a credible explanation of why he was on the scene and what he was doing, that the requirement of possession never gets under the gunsight, and as a consequence the defendant is subjected to the critical inferences [here, the critical consequences of possession] not because he is a non-explaining possessor but because he is an incredible non-possessor Mlo is where the action is.” Fitzpatrick v. United States, 410 F.2d 513 at 515-516 (CA5, 1969). The line between knowing possession and guilt by association can be very thin. Proof of mere proximity to contraband is not sufficient to establish actual constructive possession or the element of knowledge. United States v. Canada, 459 F.2d 687 (CA5, 1972).

Mindful of these commands that we proceed with caution, we conclude that there was sufficient evidence to support a finding of knowing possession by Tolbert. There was evidence which the court was entitled to credit, to the following effect. Phillips and Tolbert had flown together from Detroit to Texas, and they had come together to Texas on this and prior occasions and had traveled about the state together. Phillips had rented the car at Harlingen, Texas, at which time the agent delivered to him an ignition key and a trunk key. There is no evidence that Tolbert ever had a trunk key in his possession, but he was at the rental agency with Phillips when the car was rented. The two men stayed the night together in a motel. There were four or more large suitcases in the trunk, only one small suitcase inside the car. When the car was serviced by the rental agency before delivery only the spare tire was in the trunk. When told by the officers that they were checking for aliens, Tolbert inquired whether they were searching for drugs. The quantity of contraband was large, the packages numerous and sizeable, and some of them were loose in the trunk. At least one package, about 15" x 10" x 4", was removed by an agent, and at least one of the agents observed through the plastic covering leaves, stems and seeds. An agent felt one of the packages and could * feel vegetable matter within. As soon as access was obtained to the trunk, there was in the rear seat area a heavy smell of mothballs, whose odor is often used to mask the scent of marijuana, and there were moth flakes on the exterior of at least some of the packages.

Both appellants denied the existence of a trunk key. Before entering the trunk the agents attempted to secure a key from the rental firm owning the car, which entailed a delay of about 10 minutes. During this interim they talked separately to Tolbert and Phillips who gave conflicting explanations for their presence in the area. Tolbert stated he was in Texas because of family trouble, while Phillips said the two of them were there for business reasons.

Under all of these circumstances the court could conclude that both Phillips and Tolbert had knowing possession of the marijuana.

The cases relied upon by Tolbert do not require a different result. In Montoya v. United States, 402 F.2d 847 (CA5, 1968), appellant Montoya was a passenger in the front seat of a pickup truck owned by a third person but driven by his brother-in-law. It had on the back an enclosed homemade camper with a door but without windows. Within was 539 pounds of marijuana in 25 large cloth sacks, inside of which were small plastic bags each containing a paper package of marijuana. On appeal we concluded that the jury must have totally rejected Montoya’s incredible story of the events leading up to the arrest. This being so, there was no evidence of a joint undertaking other than Montoya’s presence in the vehicle as a passenger. Nor was there any evidence, other than Montoya’s presence, that he had any reason to enter the enclosed portion of the truck or any nexus to it or any reason to be aware of the presence of the sacks, or, if he was aware of them, any knowledge of their contents. In a later case of marijuana in a car trunk we sustained the conviction of the passenger and distinguished Montoya because of evidence, from a statement made by the passenger, that he was aware of the presence of the contraband. United States v. Canada, supra. United States v. Lowry, 456 F.2d 341 (CA5, 1972), also relied upon by appellants, is another case in which there was no basis for belief that the defendant either saw or knew of the existence of contraband in the vehicle. In Cuthbert v. United States, 278 F.2d 220 (CA5, 1960) the defendants were on a lengthy trip together, and five pounds of marijuana was purchased by one defendant (an addict) at a time the other defendants were not present and subsequently was found in his baggage. We reversed as to another defendant because there was insufficient evidence that he ever saw or took possession of any of the contraband.

In Guevera v. United States, supra, a package containing 50 marijuana cigarettes was found on the floor underneath the front seat of Guevera’s car, occupied by him as driver and another man as passenger, at a point about midway between Guevera’s seat and'the passenger’s seat and in a position accessible to either occupant by simply lowering his hand. Police arrested Guevera but accepted the explanation of both men that the passenger was only being transported home, and released the passenger who went away not to be seen again. Conviction of Guevera was reversed on the ground of insufficient evidence of possession, there being “no rational connection between ownership and possession of the car and possession of the cigarettes.” The court pointed out that the ear had been unlocked and the cigarettes could have been placed therein by any person. The quantity was so small that one could infer the occupants had no knowledge of its presence. There was no pattern of extensive joint prior conduct. It was as reasonable to believe that the contraband belonged to the unknown passenger as to Guevera. In the present case, the car was locked, the suitcases were in the trunk, the quantity of contraband very large, a key had been delivered to Phillips but both defendants denied its existence, and there was an extensive pattern of conduct indicating a joint undertaking but with the two participants giving conflicting descriptions of it. In Ledet v. United States, 297 F.2d 737 (CA5, 1962), the facts were similar to those of Guevera, plus evidence of other joint prior conduct including a lengthy trip together by the defendants, and we held the evidence sufficient, though barely so. The facts of the present case are stronger than Ledet. In United States v. Duke, 423 F.2d 387 (CA5, 1970), three men took a lengthy joint trip from the State of Washington to the Mexican border, followed by discovery near the border of a small quantity of heroin in the car, in a Winston cigarette package. We held the evidence not sufficient to support possession by two of the occupants. The third man, Sanchez, was killed in an accident after arrest and before indictments were returned. He was the only one of the three who spoke Spanish, the only one who smoked Winston cigarettes, the one who went to a bank near the border and borrowed money, the one most likely to be familiar with the area, and, additionally he was more often separate from the other two, who usually were together. We held the evidence did not exclude the reasonable possibility that Sanchez alone possessed the heroin and that its presence was unknown to the others. There are no facts in this ease tending to establish exclusive possession and knowledge by Phillips except that the car was rented by him and he was the driver.

The agents’ efforts to secure a key from the rental company were fruitless. They then entered the trunk by lifting the seat portion of the rear seat and, with a wrench, unscrewing and removing the back of the rear seat, which made available a structural opening into the trunk area. Through the opening an agent could see packages and two or more suitcases which blocked further view of the interior of the trunk. He lifted out at least one package, tore a corner of a package and saw marijuana within. The entry into the trunk as part of an otherwise valid border search was not impermissible. United States v. DeLeon, 462 F.2d 170 (CA5, 1972); United States v. Salinas, 439 F.2d 376 (CA5, 1971); Morales v. United States, 378 F.2d 187 (CA.5, 1967).

Other points raised by appellants require no discussion.

Affirmed.

      . E. g., United States v. Maggard, 451 F.2d 502 (CA5, 1971), cert. denied, 405 U.S. 1045, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1972); United States v. DeLeon, 462 F.2d 170 (CA5, 1972), cert. denied, 414 U.S. 853, 94 S.Ct. 76, 38 L.Ed.2d 102 (1973); United States v. McDaniel, 463 F.2d 129 (CA5, 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973); United States v. Wright, 476 F.2d 1027 (CA5, 1973), cert. denied, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53 (1973).

      . At some places in their testimony officers implied they were searching the trunks of all cars. But at other places reference was made to “waiving cars through” while the transactions involving defendants were taking place.

      . The search in this case was pre-Almeida-Sanchez, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). The standards of that case are not retroactive. United States v. Miller, 492 F.2d 37 (CA5, 1974).

      . No contention is made that the evidence of possession was insufficient as to Phillips.

      . See also the comments of Judge Tamm in United States v. Holland, 144 U.S.App.D.C. 225, 445 F.2d 701 (1971), pointing out the unsatisfactory and confused condition of the state of the law on proof of constructive possession, e. g., “the law of constructive possession is what we will say it is in our next opinion.” Id. at 704.

      . Absent other and sufficient indicia of possession, a less-than-credible explanation by one in the proximity of contraband is not alone a ground for conviction. Fitzpatrick v. United States, 410 F.2d 513 at 516 n. 2 (CA5, 1969). But this is not to say that a less-than-credible explanation is not part of the overall circumstantial evidence from which possession and knowledge may be inferred.

        . See e. g. United States v. Leazar, 460 F.2d 982 at 985, footnote 6 (CA9, 1972), distinguishing Guevera.


source: Caselaw Access Project

author: MARKEY, Chief Judge.

license: Public Domain

text:
    KING CANDY COMPANY, Appellant, v. EUNICE KING’S KITCHEN, INC., Appellee.
    Patent Appeal No. 9245.
    United States Court of Customs and Patent Appeals.
    June 6, 1974.
    J. Timothy Hobbs, Washington, D. C. (Mason, Fenwick & Lawrence, Washington, D. C.), attorney of record, for appellant.
    William B. Mason, Arlington, Va. (Mason, Mason & Albright, Arlington, Va.), attorney of record, for appellee.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   MARKEY, Chief Judge.

This is an appeal from the decision of the Trademark Trial and Appeal Board, 178 USPQ 121 (1973), dismissing the opposition of appellant to the registration by appellee of MISS KING’S used on cakes, canned specialty cakes and fruit cakes since August 1, 1948. Appellant relied on its existing registrations of KING’S and KATHRYN KING’S, used on candy.

We affirm.

The record consists of the pleadings; appellant’s pleaded registrations; appellee’s application file; stipulated evidence on behalf of appellee establishing its 1948 date of first use, the growth in sales to the then current annual level of $100,000 and the sale of substantially all of appellee’s cakes in cans; appellee’s Notice of Reliance and copies of 23 third-party registrations made of record by said notice.

Neither party took testimony.

The board dismissed the opposition, finding no likelihood of confusion between MISS KING’S as applied to cakes and KING’S as applied to candy.

The board refused to consider appellant’s other pleaded registration, KATHRYN KING’S, on the ground that the stipulated evidence established appellee’s date of first use to have been prior to the filing date of the KATHRYN KING’S registration.

OPINION

We agree with the board that confusion is unlikely between KING’S used on candy and MISS KING’S used on cakes.

Appellee, as did the board, emphasizes the view that KING’S is “weak” and “entitled to limited protection.” The description of marks as “weak” ’or “strong,” and references to the “breadth of protection” to be given a mark, have served as a convenient type of shorthand in the literature of opinions concerned with likelihood of confusion. We employed such language in King-Kup Candies, Inc. v. King Candy Co., 48 CCPA 948, 288 F.2d 944, 129 USPQ 272 (1961) when we described KING’S as being “almost as weak a mark as can be found.” Such expressions, however, should not obfuscate the basic issue. Confusion is confusion. The likelihood thereof is to be avoided, as much between “weak” marks as between “strong” marks, or as between a “weak” and a “strong” mark. Similarly, the statute, by providing remedies to trademark owners, enables those owners to protect their marks. It is through such owner-action that the public is protected from confusion. As we said in In re E. I. duPont deNemours & Co., 476 F.2d 1357, 177 USPQ 563 (1973), neither the grant of registration nor its refusal automatically protects against confusion.

The expressions “weak” and “entitled to limited protection” are but other ways of saying, as the board went on to recognize in its opinion herein, that confusion is unlikely because the marks are of such non-arbitrary nature or so widely used that the public easily distinguishes slight differences in the marks under consideration as well as differences in the goods to which they are applied, even though the goods of the parties may be considered “related.” That is the present case.

The twenty-three registrations made of record by appellee do not, as appellee argues, establish widespread use of KING or KING’S. They do, however, indicate a widespread adoption and registration thereof.

We are convinced that the public would readily distinguish the differences between KING’S and MISS KING’S and between candy and cakes. Hence confusion is not likely when said marks are applied, respectively, to said goods.

Appellant argues that the goods are sold in the same channels of trade, but submitted no evidence in support of that contention. Appellant also charges the board with error for having considered the absence of actual confusion over a period of 20 years. As set forth in In re E. I. duPont deNemours & Co., supra, such lack of confusion is an evidentiary element to be considered. In the absence of evidence to the contrary, such lack of actual confusion over so many years must be considered in this case as supportive of a finding that confusion is not likely in the future.

Both parties have requested that we ignore the board's refusal to consider appellant’s registration of KATHRYN KING’S and that we rule on the issue of whether confusion is likely when that mark and MISS KING’S are used on their respective goods. Both parties have briefed the issue here. The board’s holdings, respecting the nature of opposer’s mark, the differences in the marks and the goods, and the lack of actual confusion over many years, indicate that no useful purpose would be served by subjecting the parties to further proceedings below in this case. We think considerations similar to those listed above are equally applicable to this issue and that potential purchasers would readily distinguish KATHRYN KING’S candy from MISS KING’S cakes.

Because we find no likelihood of confusion between appellee’s mark and either of appellant’s registered marks, the refusal of the board to consider appellant’s KATHRYN KING’S registration is moot. That refusal was error, as is evident from our opinions in Contour Chair-Lounge Co., Inc., v. The Englander Co., Inc., 51 CCPA 833, 324 F.2d 186, 139 USPQ 285 (1963); David Crystal, Inc. v. Shelburne Shirt Co., Inc., 59 CCPA 1248, 465 F.2d 926, 175 USPQ 112 (1972); and Anderson, Clayton and Co. v. Krier, 478 F.2d 1246, 178 USPQ 46 (CCPA, 1973).

By fortuitous circumstance, a well-reasoned article concerning the point of law on which the board finds itself in disagreement with this court was published at about the time this case was heard. The author concludes that reason supports the view long held by this court, rather than that expressed by the board in the opinion below and in its opinion on remand in Anderson, Clayton, supra.

We believe it appropriate to add merely a short list of the fundamental reasons supporting our statement of the law. In an opposition, the board must consider existing registrations of subsequent-user opposers, because (1) the statute, 15 U.S.C. §§ 1051-1127, requires such consideration; (2) the basic question in an opposition is applicant’s right to register (not merely, as the board says, whether the opposer “will be damaged”) ; (3) in determining applicant’s right to register, the entire statute, including Section 2(d), must be considered; (4) Section 2(d) says an applicant can register, unless his mark is likely to cause confusion with a mark “registered in the Patent Office or * * * previously used * * * ” (emphasis added); (5) the board’s requirement that the registrant-opposer also be a prior user impermissively negates the statutory distinction (“or”) in Section 2(d) between a registered mark and a previously-used-but-unregistered mark, would permit simultaneous registration of the same mark for the same goods to different parties, and disregards — in effect conflicts with — Patent Office Rule 2.106(b), which forbids any attack (other than a request for cancellation) on the validity of a registration in an opposition; (6) the board’s position is unsupported by either statutory or definitive decisional authority; and (7) an opposer who, in the language of Section 13, “believes he would be damaged,” may in fact suffer damage to his registration, (Sec. 7(b)), if the applicant’s mark is registered.

As the board emphasized, registration is not compulsory. We recognize that an applicant-prior user may by delay lose the opportunity to effect cancellation. The answer to that concern resides in the statute. The effect of the entire statute in such instances is to upgrade the register and, so far as registration is concerned, to balance the equities, favoring the long-standing, non-fraudulent registration against the prior user who delays too long in electing to seek registration. The right to exclusive use, in such cases, may be determined in an appropriate action in a district court. We do not regard that result as undesirable. If it were, its correction would be grist for the Congressional mill, not for ours or the board’s.

Affirmed.

      . Application serial No. 343,566, filed November 14,1969.

      . Registration No. 571,464, filed March 3, 1948, dated March 10, 1953, first use in 1907 being asserted.

      . Registration No. 538,173, filed October 7, 1949, dated February 20, 1951, first use in 1949 being asserted.

      . Fletcher, Anthony L., “May a Prior Registrant but Subsequent User Oppose Subsequent Application by the Prior User?”; The Trademark Reporter, (January-February, 1974), Volume 64, page 1.

      . 178 USPQ 637 (TTAB, 1973).

      . See footnote 18 of the article noted in footnote 4, above.


author: BALDWIN, Judge. MILLER, Judge

text:
    The UNITED STATES, Appellant, v. VICKI ENTERPRISES, INC., Appellee.
    Customs Appeal No. 5516.
    United States Court of Customs and Patent Appeals.
    June 13, 1974.
    Irving Jaffe, Acting Asst. Atty. Gen., Andrew P. Vance, Chief, Customs Section, Velta A. Melnbrencis, New York City, for the United States.
    William R. Shapiro, Barnes, Richardson & Colburn, New York City, attorney of record, for appellee. David O. Elliott, New York City, of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   BALDWIN, Judge.

This appeal is from the decision and judgment- of the Second Division of the Customs Court, Appellate Term which appears at 68 Cust.Ct. 324, A.R.D. 302, 343 F.Supp. 1381 (1972) and affirms the judgment of a single judge sitting in reappraisement, 67 Cust.Ct. 480, R.D. 11750 (1971). The imported merchandise is field glasses.

Both courts below sustained the importer’s appeal and held that the 26 consolidated appeals for reappraisement involved separable appraisements and that the disputed inland charges and buying commission charges were non-dutiable.

After a thorough consideration of appellant’s arguments, we have concluded that we are in full agreement with the opinion of the Appellate Term, and we adopt it as our own. The judgment is affirmed.

Affirmed.

MILLER, Judge

(dissenting).

I am not in agreement with the Customs Court in its determination that appellee carried its burden of proof that merchandise such as or similar to that imported was in fact “freely” sold or offered for sale to all purchasers on an ex-factory basis. The evidence does indeed show that the merchandise in question was sold on an ex-factory basis to appellee. However, the evidence also shows that appellee bargained for its prices, and this is inconsistent with the statutory requirement (19 U.S.C. § MOlaib)) that the merchandise be “freely” sold or offered for sale for purposes of export value. United States v. Mexican Products Co., 28 CCPA 80, C.A.D. 129 (1940). As the Trial Term of the Customs Court pointed out, both parties are in agreement that export value is the proper basis of appraisement.

The Customs Court sought to distinguish Mexican Products on the basis that it did not involve a separable appraisement, but this misses the principle of the case that a bargained-for price does not meet the statutory “freely” sold or offered for sale requirement. F. B. Vandergrift & Co., Inc. v. United States, 410 F.2d 1259, 56 CCPA 105, C.A.D. 962 (1969). Moreover, contrary to what the Appellate Term seems to imply, the fact that there is a separable appraisement does not automatically entitle an importer to the separability rule and the presumption that the invoiced unit ex-factory prices are correct. Appellee still has the burden of proving that the merchandise was “freely” sold or offered (not bargained for) to all purchasers, including itself. Ontario Stone Corp. v. United States, 65 Cust.Ct. 753, R.D. 11727, 319 F.Supp. 923 (1970). United States v. Pan American Import Corp., 428 F.2d 848, 57 CCPA 134, C.A.D. 993 (1970) well states the separability rule, and it should be noted that this court reversed the Appellate Term of the Customs Court there because it had not considered the importer’s evidence in light of the applicable burden of proof, namely: that the involved merchandise was “freely” sold or offered for sale (and not bargained for) to all purchasers on an ex-factory basis. The court carefully pointed out that such burden had been sustained by the importer in United States v. Chadwick-Miller Importers, Inc., 54 CCPA 93, C.A.D. 914 (1967).

Although appellee appears to have carried its burden of proving that the export value established by the appraiser incorrectly included the invoiced amounts for buying commissions and inland charges, it is a fundamental principle of law in reappraisement cases that the importer must also satisfy its burden of proving that the claimed value is correct. United States v. Getz Bros. & Co., 55 CCPA 11, C.A.D. 927 (1967); Minkep of California, Inc. v. United States, 55 CCPA 1, C.A.D. 926 (1967). Failure of proof with respect to either issue operates to leave the appraisement in full force and effect. Millmaster International, Inc. v. United States, 57 CCPA 108, C.A.D. 987, 427 F.2d 811 (1970); Kobe Import Co. v. United States, 42 CCPA 194, C.A.D. 593 (1955).

The decision and judgment of the Customs Court should be reversed.

      . 19 U.S.O. § 1401a(b) provides:
      Por the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such or similar merchandise is freely sold or, in the absence of sales, offered for sale in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States