United States v. Jones

• Decision Date: 17 August 1962
• Docket Number: Docket 27157.,No. 263,263
• Citation: 308 F.2d 26
• Parties: UNITED STATES of America, Appellee, v. Eugene JONES, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

308 F.2d 26 (1962)

UNITED STATES of America, Appellee, v. Eugene JONES, Appellant.

No. 263, Docket 27157.

United States Court of Appeals Second Circuit.

Argued February 15, 1962.

Submitted April 3, 1962.

Decided August 17, 1962.

COPYRIGHT MATERIAL OMITTED

Anthony F. Marra, New York City (Leon Polsky, New York City, of counsel), Legal Aid Society, for appellant.

Robert M. Morgenthau, U. S. Atty., S.D.N.Y. (Arthur I. Rosett, Jonathan L. Rosner, New York City, of counsel), for appellee.

Before CLARK, WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges.

Argued February 15, 1962 to a Panel.

Submitted to in Banc Court April 3, 1962.

WATERMAN, Circuit Judge, with whom CLARK, FRIENDLY, KAUFMAN, HAYS and MARSHALL, Circuit Judges, concur.

The appeal, now before the in banc court, was originally argued before a panel of three judges, Judges SMITH, HAYS and MARSHALL. Inasmuch as appellant had been convicted of a substantive violation of 21 U.S.C.A. § 174, and, upon appeal, the Government had argued that the conviction was not only sustainable as a violation of that section but was also sustainable on an alternative ground under 18 U.S.C. § 2, the judges of the court unanimously voted to consider the appeal in banc in order to clear up any confusion that might exist as to our previous interpretations of these statutes in U. S. v. Santore et al., 290 F.2d 51 (2 Cir. 1960), certs. denied D'Aria v. U. S., Lo Piccolo v. U. S., Cassella v. U. S., Santore v. U. S., Orlando v. U. S., 365 U.S. 834, 835, 81 S.Ct. 745, 746, 749, 752, 5 L.Ed.2d 743, 744, 745, and in U. S. v. Hernandez, 290 F.2d 86 (2 Cir. 1961), and see id. at 91, 93 (Moore, J., dissenting).

No further oral argument was had, and the case was submitted to the in banc court on April 3, 1962. Chief Judge LUMBARD, deeming himself disqualified, did not participate in the final decision on the merits.

Defendant appeals from a judgment of conviction entered after the trial judge, sitting without a jury, found him guilty of a substantive violation of 21 U.S.C.A. § 174. At the conclusion of the trial defendant was acquitted on a charge of conspiring with another to violate the same section.

Pursuant to F.R.Crim.P. 23(a), 18 U.S.C., the trial judge found the following to be the evidentiary facts:

"At about 5:00 P.M. on January 10, 1961 Jacob F. Brown (Brown), then an agent for the Bureau of Narcotics, was seated in the Hollywood Bar on West 116th Street, between Lenox and Seventh Avenues, in the Borough of Manhattan, City and State of New York and Southern District of New York.

"He was then and there approached by defendant Eugene Jones (Jones) who greeted Brown and inquired as to the purpose of Brown\'s being in the bar. When informed by Brown that he sought to purchase heroin, Jones advised Brown that Brown would be unable to get any because the police had arrested five persons in the bar the evening before and that no one was selling `stuff\' at that time.

"Jones then offered to introduce Brown to Jones\'s `connection, who deals good stuff.\'

"Brown and Jones then left the bar and walked to West 115th Street, between Lenox and Seventh Avenues, and entered 111 West 115th Street. They proceeded to the rear right of the hall where Jones knocked on a door and upon response asked for `Big Charlie.\' The door was opened by an unidentified man who stated that Charlie was not there then.

"Brown and Jones retraced their steps to the sidewalk in front of the building when Jones said `There\'s Charlie now\' pointing to a man nearby. Jones left Brown and engaged the indicated man in conversation, out of Brown\'s earshot. Jones then returned to Brown and advised Brown that he (Brown) `would be able to get the stuff, and that the price was $150\' for an ounce of heroin.

"Jones and Brown then walked to a candy store, east of the building they had entered and waited in the store. While they sat in the store Jones told Brown that `Charlie was a dealer for himself; that he had one fellow by the name of Mickey who bagged and cut most of his stuff for him.\' Jones also, pointing to a car parked outside, told Brown that it was `Charlie\'s car.\'

"Soon after, Charlie came to the store window and beckoned to Jones and Brown to come outside, which they did. In Jones\'s presence Charlie handed Brown a package containing heroin and Brown paid Charlie $150.

"Charlie then told Brown that if the latter wanted any more heroin to come back to 115th Street, `ask for Big Charlie or for Mickey\' and not to deal with anyone else. Charlie then entered the hallway of 111 West 115th Street while Brown remained with Jones.

"Brown asked Jones if Charlie would give Jones anything for the introduction to which Jones replied that he (Jones) would talk to Charlie later but asked Brown what he (Brown) was going to give Jones. They agreed that ten dollars would be fair and Brown then gave Jones that sum."

The findings are supported by the record, and we accept them. From these facts, the trial judge concluded, "Although the evidence otherwise fails to establish that the heroin sold as aforesaid (1) was illegally imported and (2) that Jones knew it, I find both such facts solely by virtue of Jones's unexplained constructive possession, of the said heroin."

It is a federal offense under 21 U.S. C.A. § 174¹ to import narcotic drugs illegally or to deal in such drugs with knowledge that they have been illegally imported. The statute further provides that "Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury." Inasmuch as the record in this case shows neither illegal importation nor actual knowledge by Jones as to the origin of the drug, the conviction appealed from stands or falls on whether Jones had or had ever had possession of the drug. Two questions are required to be resolved: First, are the evidentiary facts as found by the district judge sufficient to support the conclusion he reached therefrom that Jones had constructive possession of the narcotics? Second, if such a conclusion is not permissible and the first question is answered in the negative, may we nevertheless affirm the conviction on the theory that Jones aided and abetted Moore, who did possess the drug, in executing the transaction, and that Moore's unexplained possession is thereby attributable to Jones? We answer both questions in the negative and reverse the conviction.

(1) Constructive Possession

"Possession," as used in 21 U.S.C.A. § 174, even though the statute is a penal one, has not been construed with undue narrowness. The term has been interpreted by the courts to encompass power to control the disposition of drugs as well as mere physical custody. Hernandez v. United States, 300 F.2d 114 (9 Cir. 1962); United States v. Hernandez, 290 F.2d 86 (2 Cir. 1961). Those who exercise dominion and control over narcotics are said to be in "possession" under § 174, United States v. Malfi, 264 F.2d 147 (3 Cir. 1959), cert. denied, 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63 (1959); United States v. Mills, 293 F.2d 609 (3 Cir. 1961), and physical custody by an agent may be attributed to the principal. United States v. Hernandez, 290 F.2d 86 (2 Cir. 1961). We have said, moreover, in United States v. Hernandez, supra, that one having a working relationship or a sufficient association with those having physical custody of the drugs so as to enable him to assure their production, without difficulty, to a customer as a matter of course may be held to have constructive possession.² But a casual facilitator of a sale, who knows a given principal possesses and trades in narcotics but who lacks the working relationship with that principal that enables an assurance of delivery, may not be held to have dominion and control over the drug delivered and cannot be said to have possession of it. Ibid.; United States v. Santore, 290 F.2d 51, 76 (2 Cir. 1960); United States v. Moses, 220 F.2d 166 (3 Cir. 1955).

Turning to the case before us, the Government contends that the district judge's conclusion as to constructive possession is a finding of fact carrying presumptive weight in an appellate court. It further contends that we must draw all possible inferences from that conclusion, namely that Jones set the price, fixed the place of delivery, and otherwise controlled the dealings between Brown and Moore. We cannot agree. Constructive possession is a legal conclusion, derived from factual evidence, that one not having physical possession of a thing in fact nevertheless has possession of that thing in legal contemplation. Properly admitted evidence showing that a given defendant set the price for a batch of narcotics, had the final say as to means of transfer, or was able to assure delivery, may well be sufficient to charge the defendant with a constructive possession of the narcotics, but we may not, however, work backwards and first having taken the conclusion derive therefrom the facts needed to support it.

We believe the evidence in this case negates a conclusion that defendant Jones had dominion and control over the narcotics handed to Brown by Moore. The pains Jones took in the first instance to find Moore indicate that Jones was unable to consummate the transaction as a business dealing of his. The price and place of delivery were not even discussed with the would-be purchaser until defendant spoke with Moore. No one can say that Jones established these essential details of the affair unless he engages in speculation wholly unwarranted by the trial record. After consummation of the transaction Moore told agent Brown to purchase directly from him in the future and not to deal with anyone else. This statement by Moore negates a finding that Jones could assure, as a matter of course, delivery by Brown...