276 F.2d 941 (9th Cir. 1960), 16178, Cellino v. United States

Docket Nº:16178.
Citation:276 F.2d 941
Party Name:Frank Anthony CELLINO, Appellant, v. UNITED STATES of America, Appellee.
Case Date:March 14, 1960
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 941

276 F.2d 941 (9th Cir. 1960)

Frank Anthony CELLINO, Appellant,

v.

UNITED STATES of America, Appellee.

No. 16178.

United States Court of Appeals, Ninth Circuit.

March 14, 1960

Page 942

Joseph Galea, Los Angeles, Cal., for appellant.

Laughlin E. Waters, U.S. Atty., Robert John Jensen, Loyd W. Reed, Asst. U.S. Attys., Los Angeles, Cal., for appellee.

Before CHAMBERS and BARNES, Circuit Judges, and JAMESON, District Judge.

JAMESON, District Judge.

Appellant, Frank Anthony Cellino, was found guilty by a jury of selling and facilitating the sale of heroin, knowing the heroin to have been imported into the United States contrary to law, in violation of Title 21 U.S.C.A. § 174. 1 The indictment named appellant and one Joe Bruno as defendants, appellant being charged under one count and Bruno under four counts.

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Appellant having been found guilty by the jury, the evidence must be viewed in the light most favorable to the Government. Appellant's participation in the offense may be summarized as follows:

Raymond Velasquez, a deputy sheriff of Los Angeles County, acting as an undercover agent, and Bobby Ulrey, a parole violater in his custody, approached appellant, and Ulrey told appellant that they would like to 'pick up', i.e., obtain some heroin. Appellant replied that he did not have any 'stuff', but he would take them to 'the man that did.' Appellant entered Velasquez's car with Velasquez and Ulrey, and appellant directed Velasquez to drive to the corner of Narva and Mission Streets. Appellant there told Velasquez and Ulrey to wait in the car. Appellant went around the corner and out of the sight of Velasquez and Ulrey. In two or three minutes Bruno came to the Velasquez car alone, and said, 'How much do you guys want to pick up?' After some conversation and movement about the general area, all in the absence of appellant, Velasquez and Bruno negotiated a sale, and Velasquez paid Bruno $100.

Bruno then directed Velasquez and Ulrey to the corner of Narva and Workman Streets, and instructed them to go into a drugstore and wait for him. In the drugstore they met appellant, who was having a cup of coffee. Velasquez said to appellant that he hoped 'Bruno wouldn't burn me.' Velasquez explained that burning means 'to go away with your money and never come back' or to 'give some substitute in lieu of the narcotics.' Appellant replied that Bruno was 'a good man, he doesn't to those kind of things', and that he was sure Bruno would be back with the narcotics. In ten or fifteen minutes Bruno did return and, in the presence of Ulrey and appellant, handed Velasquez six small white packets containing heroin. 2

Under these facts appellant clearly 'facilitated' the sale by Bruno. 3 The primary question on this appeal is whether the United States may rely upon the statutory presumption arising from possession to establish that the heroin was imported contrary to law and that appellant knew that it was so imported.

Possession is not an element of the offense charged. Rather, proof of possession in 'the defendant' is deemed sufficient evidence to authorize conviction in the absence of satisfactory explanation. 4 In other words, proof of possession avoids the necessity of proving both illegal importation and the defendant's knowledge thereof. But under the express

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provision of § 174 'the defendant' must be shown 'to have or have had possession.' 5

It is not disputed that Bruno had possession of the narcotics. Appellant contends, however, that there is no evidence that he ever had possession, and that the Government may not rely upon possession in Bruno to prove illegal importation or knowledge thereof as to appellant, since the presumption arises only where 'the defendant is shown to have or to have had possession of the narcotics drug.'

Title 18 U.S.C. § 2 reads: 'Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces, or procures its commission, is a principal.' The Government contends that the possession required by § 174 need 'not be that of the person convicted' and that upon proof that the appellant 'facilitated' or 'aided and abetted' in the sale, possession in his codefendant Bruno was then sufficient to make the presumption effective against appellant.

The Government relies primarily upon United States v. Cohen, 2 Cir., 1941, 124 F.2d 164, 165, certiorari denied Bernstein v. United States, 315 U.S. 811, 62 S.Ct. 796, 86 L.Ed. 1210, where the court said:

'Under the first statute we have quoted (21 U.S.C. § 174) it was only necessary to show possession of the narcotics to establish guilt and under the second statute (18 U.S.C. § 2), making an abettor a principal, it was not necessary that each of the defendants should have had the narcotics, but only that one or more of them had possession while the others aided in the illicit transaction to which that possession was incidental.' 6

This excerpt from United States v. Cohen was quoted with approval in United States v. Chiarelli, 7 Cir., 1951, 192 F.2d 528,

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certiorari denied 342 U.S. 913, 72 S.Ct. 359, 96 L.Ed. 683.

While the language quoted supports the Government's position, it appears from the recital of facts in both the Cohen and Chiarelli cases that there was some evidence of possession in each defendant charged. In the Cohen case each of the defendants had handled at least part of the narcotics referred to in each count of the indictment, and there was proof that each defendant was to share in the proceeds of the sale. In the Chiarelli case there was evidence that appellant was driving his car, accompanied by his codefendant, who left appellant's car with the heroin, and that appellant's fingerprints were found upon two envelopes containing the heroin.

The authorities are uniform in holding that actual physical possession is not required under Section 174. As this court said in Pitta v. United States, 9 Cir., 1947, 164 F.2d 601, 602: 'Possession of any sort is sufficient to raise the presumption and to place upon the accused the burden of explaining the possession to the satisfaction of the jury.' And in Brown v. United States, 9 Cir., 1955, 222 F.2d 293, 297, the court said: 'In Mullaney v. United States, 9 Cir. 1936, 82 F.2d 638, 642, this court approved an instruction of the trial court that 'possession of a thing means having in one's control or under one's dominion'. It is not necessary that possession be immediate or exclusive.' 7 It is clear also that possession may be proven by circumstantial evidence. 8

Where a defendant negotiates a sale and receives the purchase price, he has possession through dominion and control, even though delivery is made by another and there is no evidence the seller ever had actual possession. In United States v. Malfi, 3 Cir., 1959, 264 F.2d 147, for example, Malfi negotiated the sale, received payment, and heroin was subsequently delivered in accordance with his commitment, although the defendant himself was out of the state when the delivery was made and there was no evidence the heroin had ever been in his physical possession. 9

It has been held in two cases, with a dissent in each case, that fingerprints of the defendant on the package containing heroin is sufficient in itself to show possession and justify conviction under Section 174. This court so held in Stoppelli v. United States, 9 Cir., 1950, 183 F.2d 391, 393, where the only evidence against the appellant was the testimony of the government fingerprint expert that the appellant's 'fingerprint was placed on the envelope at a time when it contained a powdery substance'; that heroin was a powdery substance; and that the print was placed on the envelope not more than four weeks prior to the expert's examination. In United States v. Pisano, 7 Cir., 1951, 193 F.2d 361, 365, 31 A.L.R.2d 409, the narcotics were found in a suitcase in a room occupied by appellant's co-defendant, one Ginnone. The suitcase contained, among other things, six envelopes containing heroin. Pisano's fingerprints were found upon one of the packages containing heroin, as well as upon some wrapping paper found in the suitcase. The court held that this was sufficient to show that the defendant had

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handled the package and paper and 'in order to do so, he must have had possession'; and that the unexplained handling was sufficient to justify the finding of illegal possession. 10

In United States v. Maroy, 7 Cir., 1957, 248 F.2d 663, certiorari denied 355 U.S. 931, 78 S.Ct. 412, 2 L.Ed.2d 414, the sale of heroin was made by the appellant's co-defendant and employee. When the appellant was approached by the prospective purchaser, the appellant (a negro) replied, 'I don't do no business with no grays (meaning Caucasians) anyway. So if you want to talk about it, you have got to see my man.' He stated that 'his man' was Edward Minor. The purchase was subsequently made from Minor. The appellant contended that there was no evidence that he ever had possession of the heroin. In holding against this contention, the court said in part: 'However, the undisputed evidence is that his co-defendant below, Edward Minor, was in his employ, and he was in possession and made the illegal sale to both Gjertsen and Turnbou. The facts are that Cross introduced Maroy to both Gjertsen and Turnbou and when they told him they wanted to buy some heroin he turned them over to his employee, Edward Minor, by whom the illegal delivery was made. We can not say that the jury was unwarranted in finding that the defendant-appellant,...

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