Jefferson v. United States

• Citation: 340 F.2d 193
• Decision Date: 12 February 1965
• Docket Number: No. 18216.,18216.
• Parties: Leroy JEFFERSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

340 F.2d 193 (1965)

Leroy JEFFERSON, Appellant, v. UNITED STATES of America, Appellee.

No. 18216.

United States Court of Appeals Ninth Circuit.

January 5, 1965.

Rehearing Denied February 12, 1965.

Isabella H. Grant, San Francisco, Cal., for appellant.

Cecil F. Poole, U. S. Atty., Terry J. Hatter, Jr., Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before ORR, JERTBERG and MERRILL, Circuit Judges.

JERTBERG, Circuit Judge.

On February 18, 1959, the Grand Jury returned an indictment containing twenty-one counts. Count One charged at a time and place unknown to the Grand Jury the appellant, Leroy Jefferson, Fred Jones, Leroy Lemons, Jane Doe Marie, John Doe Vic, John Doe Tommy, Clarence Criss, William Catlett, Patricia Catlett, Clark Elegan, Gerald Elegan, Richard Smith, Berthelma Nolen, aka Victoria Johns, Lou Jones, aka Lulu Parker, Leon T. Graves, Ernest Duke Arnold and John Doe Otis thereinafter referred to as the defendants did unlawfully conspire with Rose Holland, Fred Berry, Henrietta Lee, Juanita Smith, Tom Hicks, deceased, Velmer Dorsey, Julia Dorsey, Dolores Mitchell, Theodore Glass, Will Riley, Cecil Nunn, Wallis R. Hanks, and others to the Grand Jury unknown, all of which persons named and unknown, thereinafter referred to as co-conspirators, the co-conspirators not being named as defendants nor indicted therein, fraudulently and knowingly received, concealed, sold, and facilitated the concealment and sale of certain quantities of narcotic drugs, to wit: heroin and cocaine, knowing the same to have been imported into the United States contrary to law, in violation of 21 U.S.C. § 174. Fifty-seven overt acts were charged under Count One. The first fifty-five overt acts covered a period of time from April 1, 1957 through December 16, 1958; overt acts 56 and 57 are alleged to have occurred in January of 1958. It appears clear from the record that overt acts 56 and 57 occurred in January, 1959. In addition to Count One, appellant was charged in seven of the remaining twenty counts.

Counts Two and Five charged appellant with selling and facilitating the sale of cocaine in violation of 21 U.S.C. § 174. Counts Three and Six charged appellant with purchasing and dispensing of cocaine not in the original stamped packages in violation of 26 U.S.C. § 4704(a). Counts Four and Seven charged appellant with dispensing of cocaine not in the original stamped package in violation of 26 U.S.C. § 4705. Count Eight charged appellant with use of a communication facility to violate the narcotic laws in violation of 18 U.S.C. § 1403.

Following trial to a jury appellant and co-defendant Clarence Criss were the only defendants found guilty of the offense charged in Count One. Defendants Lou Jones, Leroy Lemons, Richard Smith and Ernest Duke Arnold were found not guilty. The jury was unable to agree as to the guilt or innocence of the other defendants charged in Count One.

During the trial prosecuting counsel stated to the District Court that no proof would be offered on the other counts Counts Two through Eight in which the appellant was charged.

Judgment of conviction as charged in Count One was pronounced and appellant was sentenced to imprisonment for a term of twenty years.

The judgment of conviction pronounced upon appellant, after reciting that the appellant had been convicted upon his plea of not guilty and a verdict of guilty as to Count One of the offense of violation of Title 21 U.S.C. § 174, in part states that the appellant:

"did unlawfully conspire with a certain number of co-conspirators to fraudulently and knowingly receive, conceal, sell, and facilitate the concealment and sale of certain quantities of narcotic drugs, to wit, heroin and cocaine, knowing the same to have been imported into the United States contrary to law, and to effect the objectives of conspiracy did, during the period beginning on or about April 1, 1957 through January 14, 1958,¹ do a number of overt acts, as charged in Count One (1) of the indictment".

The government states in its brief:

"It would appear from the record below that legally the conspiracy alleged in the instant case did indeed continue from April of 1957 until the filing of the indictment on February 18, 1959. The court below so instructed the jury."

It is also to be noted that the indictment alleges that overt act 56 occurred on or about January 4, 1958, and that overt act 57 occurred on or about January 14, 1958.

Appellant's specifications of error may be summarized as follows:

(1) That the District Court was without jurisdiction of the offense for which appellant was convicted in that:

(a) absence of evidence of the unlawful importation of any narcotic drugs;

(b) absence of evidence of possession of heroin by appellant; and

(c) absence of evidence of illegal importation of cocaine.

(2) Prejudicial error in instructing the jury;

(3) Appellant has been twice placed in jeopardy for the same offense;

(4) Errors in the admission of evidence;

(5) Errors in certain rulings and actions of the District Court;

(6) Appellant was deprived of a fair trial by prejudicial misconduct of government counsel during the course of the trial and in his argument to the jury; and

(7) Title 21 U.S.C. § 174 is unconstitutional.

21 U.S.C. § 174,² makes it a Federal offense to import narcotic drugs illegally or to deal with such drugs knowing that the same have been illegally imported. Under the second paragraph of Section 174, the proof of possession of a narcotic drug by defendant shifts to him the burden of explaining such possession to the satisfaction of the jury. In the absence of such satisfactory explanation, the application of the statutory rule of evidence or prima facie presumption set forth in Section 174 shall be deemed sufficient to authorize conviction. In such circumstances the statutory rule of evidence or prima facie presumption furnishes sufficient proof to establish the illegal importation of the narcotic drug, and the defendant's knowledge that the narcotic drug was illegally imported. Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925); Erwing v. United States, 323 F.2d 674 (9th Cir. 1963); United States v. Jones, 308 F.2d 26 (2nd Cir. 1962); Hernandez v. United States, 300 F.2d 114 (9th Cir. 1962); Cellino v. United States, 276 F. 2d 941 (9th Cir. 1960); Caudillo v. United States, 253 F.2d 513 (9th Cir. 1952), C.D. Romero v. United States, 357 U.S. 931, 78 S.Ct. 1375, 2 L.Ed.2d 1373.

The term "possession" is not further defined in the section. It has not been narrowly construed by the courts. The term has been construed by the courts to embrace power to control the disposition of the drugs as well as mere physical custody. As stated in Hernandez v. United States, supra, 300 F.2d at pp. 116-117:

"We early held that `possession\' of narcotic drugs sufficient to support the inference of guilt under the statute meant `having the narcotic drugs in one\'s control or under one\'s dominion.\' Mullaney v. United States, 82 F.2d 638, 642 (9th Cir. 1936), and we have recently re-examined and re-affirmed this basic position. Rodella v. United States, 286 F.2d 306 (9th Cir. 1960), cert. denied 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199. As the Rodella opinion and the authorities which it cites amply demonstrate, it follows from this definition of `possession\' in Section 174 that so long as the evidence establishes the requisite power in the defendant to control the narcotic drugs, it is immaterial that they may not be within the defendant\'s immediate physical custody, or, indeed, that they may be physically in the hands of third persons — `possession\' as used in this statute includes both actual and constructive possession. The power to control an object may be shared with others, and hence `possession\' for the purposes of Section 174 need not be exclusive, but may be joint. Moreover, like other facts relevant to guilt, `possession,\' actual or constructive, may be proven by circumstantial evidence. We have not hesitated to uphold convictions under Section 174 wherever either actual or constructive possession by the defendant could be honestly, fairly and conscientiously inferred. This interpretation of the statute, equating the term `possession\' with dominion and control, and permitting proof of dominion and control by circumstantial evidence, has been adopted in other circuits as well." (Footnotes omitted.)

Section 174 also makes it a Federal offense to conspire to import narcotic drugs illegally or to conspire to deal with such drugs knowing that they have been illegally imported. In this case we are concerned only with that part of the section which makes it illegal to conspire to deal with such drugs knowing that they have been illegally imported. Since substantive offense of dealing with such drugs under Section 174 requires proof of specific knowledge by the defendant that the drug was illegally imported, the same specific knowledge is also an essential element of the conspiracy to commit such substantive offenses. As stated in Hernandez v. United States, supra, 300 F.2d at page 120, in footnote 16:

"`Conspiracy to commit a particular substantive offense cannot exist without at least the degree of criminal intent necessary for the substantive offense itself.\' Ingram v. United States, 360 U.S. 672, 678, 79 S.Ct. 1314, 1319, 3 L.Ed.2d 1503 (1959), quoting with approval from Developments in the Law — Criminal Conspiracy, 72 Harv.L.Rev. 920 at 939. See also United States v. Bufalino, 285 F.2d 408, 416 (2d Cir. 1960) (`Evidence of the same intent or knowledge would be required to convict conspirators or to convict those charged with the substantive offense\'); United States v. Ausmeier, 152 F.2d 349, 356 (2d Cir. 1945); Fulbright v. United States, 91 F.2d 210, 211 (8th Cir. 1937) (`Thus knowledge * * * is made an essential element of the substantive crime; and it must adhere in a charge of conspiracy to commit that crime\')

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