Borne v. United States

Decision Date16 July 1964
Docket NumberNo. 20459.,20459.
Citation332 F.2d 565
PartiesClifton Peter BORNE and Donald Joseph Walker, Appellants, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Dean A. Andrews, Jr., James T. Davis, Marcel J. Meunier, Jr., New Orleans, La., for appellants.

Peter E. Duffy, John C. Ciolino, Asst. U. S. Attys., Louis C. LaCour, U. S. Atty., New Orleans, La., for appellee.

Before CAMERON,* WISDOM and GEWIN, Circuit Judges.

PER CURIAM:

Appellants were convicted for unlawfully selling a quantity of marihuana cigarettes in violation of 21 U.S.C.A. § 176a and 26 U.S.C.A. § 4742(a). The case was tried by a jury. Appellant Borne contends that the statutory presumption1 embodied in 21 U.S.C.A. § 176a violates his constitutional rights. Appellant Walker contends that his conviction is invalid by reason of entrapment.

After a careful consideration of the entire record, we find to the contrary. The constitutionality of the presumption contained in 21 U.S.C.A. § 176a, relating specifically to the importation, possession and sale of narcotic drugs, has been consistently upheld. Manning v. United States, 5 Cir., 1960, 274 F.2d 926. A legislative presumption of one fact from evidence of another does not constitute a denial of due process of law when there is some rational connection between the fact proved and the ultimate fact presumed. Barrett v. United States, 5 Cir., 1963, 322 F.2d 292.

The undisputed testimony contained in the record disclosed that it was appellant Walker who initiated the proposal to sell marihuana to Agent Robinson on their first meeting, and it was he who was the principal figure in bringing appellant Borne into negotiations for the subsequent sale of marihuana. When the actions of government agents "merely afford opportunities or facilities for the commission of the offense" there has been no entrapment. Sorrells v. United States, (1932) 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413. Such were the facts in this case. Therefore, the convictions are affirmed.

It should be observed that Judge Cameron participated in the hearing and decision of this cause but died before the opinion was filed. See 28 U.S.C.A. § 46.

* Judge Cameron participated in the hearing and decision of this cause but died before the opinion was filed. See 28 U.S. C.A. § 46.

1 A presumption that links possession to smuggling. 21 U.S.C.A. § 176a:

"Smuggling of marihuana; penalties; evidence; definition of...

To continue reading

Request your trial
9 cases
  • Vaccaro v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 12 de abril de 1972
    ... ... See, Caudillo v. United States, 9 Cir., 1958, 253 F.2d 513; Leary v. United States, 5 Cir., 1967, 383 F.2d 851, 868-70; Costello v. United States, 9 Cir., 1963, 324 F.2d 260, 263-264; United States v. Soto, 7 Cir., 1958, 256 F.2d 729, 735; Borne ... ...
  • Leary v. United States, 65
    • United States
    • U.S. Supreme Court
    • 19 de maio de 1969
    ... ... All courts of appeals which have ruled on the question have sustained the presumption. See Caudillo v. United States, 253 F.2d 513 (C.A.9th Cir. 1958); Costello v. United States, 324 F.2d 260, 263—264 (C.A.9th Cir. 1963); United States v. Soto, 256 F.2d 729, 735 (C.A.7th Cir. 1958); Borne ... ...
  • Williams v. United States
    • United States
    • U.S. District Court — District of Minnesota
    • 25 de outubro de 1968
    ... ... § 4741 (a) (26 U.S.C.A. § 4744(a)). The constitutional validity of these statutory presumptions has been consistently upheld. Zaragoza v. United States, 389 F. 2d 468 (9th Cir. 1968); Browning v. United States, 366 F.2d 420 (9th Cir. 1966); Borne v. United States, 332 F.2d 565 (5th Cir. 1964); Williams v. United States, 290 F.2d 451 (9th Cir. 1961); Manning v. United States, 274 F.2d 926 (5th Cir. 1960); Caudillo v. United States, 253 F.2d 513 (9th Cir. 1958) cert. denied Romero v. United States, 357 U.S. 931, 78 S.Ct. 1375, 2 L.Ed.2d 1373 ... ...
  • Leary v. United States
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 29 de setembro de 1967
    ... ... Although marihuana grown in the United States is occasionally found in the traffic, the Mexican variety, preferred by users, is most prevalent in the United States marihuana traffic." ...          17 See also Borne v. United States, 5 Cir., 1964, 332 F.2d 565; Claypole v. United States, 9 Cir., 1960, 280 F.2d 768; Brown, The Constitutionality of Statutory Criminal Presumptions, Modern Practice Commentator, Vol. V, No. 1, p. 92, May 1967. Cf. Maltos-Roque v. United States, 5 Cir., 1967, 381 F.2d 130 ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT