315 F.2d 361 (9th Cir. 1963), 18305, Medrano v. United States

Docket Nº:18305.
Citation:315 F.2d 361
Party Name:Juan Jose MEDRANO, Appellant, v. UNITED STATES of America, Appellee.
Case Date:March 23, 1963
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 361

315 F.2d 361 (9th Cir. 1963)

Juan Jose MEDRANO, Appellant,

v.

UNITED STATES of America, Appellee.

No. 18305.

United States Court of Appeals, Ninth Circuit.

March 23, 1963

Rehearing Denied April 26, 1963.

Welburn Mayock and Morris Lavine, Los Angeles, Cal., for appellant.

Francis C. Whelan, U.S. Atty., Thomas R. Sheridan and Timothy M. Thornton, Asst. U.S. Attys., Los Angeles, Cal., for appellee.

Before BARNES and JERTBERG, Circuit Judges, and PENCE, District judges.

PER CURIAM.

This is an appeal from a refusal of the district court to set aside judgments and sentences in the case of Medrano v. United States, 9 Cir., 1960, 285 F.2d 23, in a proceeding brought below under Section 2255, Title 28, United States Code.

Appellant, charged with five violations of Section 174 of Title 21, United States Code, involving narcotics, and found guilty, urges that there was no proof of 'illegal importation,' and thus that a jurisdictional fact was lacking that can be raised at any time, even after the finality of the original judgment of conviction. There was no proof there was or had been physical possession of the narcotic in appellant, urges his counsel, and therefore, to infer he had a constructive possession, and based on that inference, to presume and illegal importation, is a presumption resting on an inference, and violative of the rule enunciated in the one case cited by appellant, United States v. Ross, 1875, 92 U.S. 281, 23 L.Ed. 707, to the effect that 'a presumption (cannot)

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be a substitute for proof of an independent and material fact.'

We do not doubt the validity of that rule, nor dispute it. But an independent and material fact may be proved by circumstantial evidence. When so proved, the fact has the same validity and sanctity as a fact proved by direct evidence. We reject the contention that circumstantial evidence can prove a fact, but cannot cause a presumption to arise based on the established fact.

'Possession (of narcotics) of any sort is sufficient to raiser the presumption and to place upon the accused the burden of explaining the possession to the satisfaction of the jury.' Pitta v. United States, 9 Cir. 1947, 164 F.2d 601, 602; Cellino v. United States, 9 Cir. 1960, 276 F.2d 941.

The evidence that Medrano had constructive possession of the narcotic was substantial. 1

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