United States v. Llanes

• Citation: 374 F.2d 712
• Decision Date: 07 February 1967
• Docket Number: No. 275,Docket 30712.,275
• Parties: UNITED STATES of America, Appellee, v. Raymond LLANES, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

374 F.2d 712 (1967)

UNITED STATES of America, Appellee, v. Raymond LLANES, Appellant.

No. 275, Docket 30712.

United States Court of Appeals Second Circuit.

Argued January 5, 1967.

Decided February 7, 1967.

Myles J. Ambrose, New York City, for appellant.

Elkan Abramowitz, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern Dist. of New York, Douglas S. Liebhafsky, Asst. U. S. Atty., of counsel), for appellee.

Before LUMBARD, Chief Judge, and FRIENDLY and HAYS, Circuit Judges.

FRIENDLY, Circuit Judge.

A jury in the District Court for the Southern District of New York found appellant Llanes guilty under a single count indictment charging that he had knowingly received, concealed, and facilitated the transportation and concealment of 35 grams of illegally imported heroin, knowing the same to have been illegally imported, in violation of 21 U.S.C. §§ 173 and 174.¹ There was ample testimony by narcotics agents to support a conclusion that Llanes had done the physical acts charged; moreover Llanes, taking the stand in his own defense, admitted that he had heroin concealed on his person when arrested. His counsel conceded at trial that the sole issue was whether Llanes knew the heroin "to have been imported or brought into the United States contrary to law."

Under questioning by his assigned counsel Llanes said he did not know where his connection had gotten the heroin or whether it had been illegally imported. Counsel requested the court to charge that the jury might convict only if it disbelieved the latter statement; when this was denied, he unsuccessfully sought a charge that "if the jury believes the defendant's testimony that he did not know that the heroin had been illegally imported, then the government has failed to prove an essential element of the crime and the jury should acquit."

The judge told the jury that there were three elements in the crime — knowing possession of heroin, illegal importation, and knowledge thereof, and that, as to the second and third elements, the last paragraph of § 174 permitted but did not require it to infer, if it found that Llanes had possession of the heroin, "that the defendant knew that the heroin was imported contrary to law unless on all of the evidence in the case, submitted both by the government and by the defendant, you conclude that the defendant has explained his possession of the heroin to your satisfaction." Elaborating on this, he instructed the jury to consider "all of the evidence, including the testimony of the defendant, to the extent that you find the defendant's testimony to be credible, and all of the evidence of the government and * * * then determine in your own minds whether the defendant has satisfactorily explained his possession of the heroin and that he did not know that it had been illegally imported." Continuing, he told the jury that if it found the government had not proved each element of the crime beyond a reasonable doubt, it must acquit; he emphasized that the jury must consider the defendant's knowledge, "that he knowingly had possession and knowingly knew that the heroin had been imported into the United States," adding "The Government must prove to you that the defendant had this knowledge." Defense counsel, conceding that "perhaps I am asking for a whole loaf when I have half already," asked the judge to "express in a little more detail the question of what constitutes a satisfactory explanation." When the judge declined, saying he had done all he could, counsel reminded of his earlier requests.

The judge's difficulty stemmed from the variety of purposes served by the final paragraph of § 174 and the ineptness of the language of the "unless" clause as to two of them. To us there appear to be four elements of the crime rather than the conventional three: (1) doing one of the physical acts limned in the statute, (2) doing such an act "fraudulently or knowingly," (3) illegal importation of the narcotic drug and (4) knowledge of the illegal importation. The final paragraph of § 174 makes possession of the narcotic drug sufficient evidence as to all four elements "unless the defendant explains the possession to the satisfaction of the jury."

The "unless" clause is readily applied to the first two elements of the crime. Where there is an issue whether the defendant had done one of the specified physical acts, he can negate the inference from possession, e. g., by explaining that a friend had tossed him a package, saying "Keep this dope for me," only seconds before his arrest. Where the issue is knowledge that the substance with which the defendant was performing a prohibited act was a narcotic drug, he can negate the inference, e. g., by explaining that he thought the substance was something else, as in United States v. Christmann, 298 F.2d 651 (2 Cir. 1962). Although the "unless" clause less readily fits the third issue, whether the drug was illegally imported, the clause is rarely invoked on this point, at least as to heroin, since it is hard to think of an "explanation" that would negate the inference of illegal importation of a drug that cannot be lawfully produced in the United States.

The serious problem arises in applying the "unless" clause to the final element, knowledge of illegal importation. As to this the most satisfactory explanation would seem to be that the defendant honestly believed the narcotic drug had been produced within the United States; the next best would be that, without "a conscious purpose to avoid enlightenment,"² he did not know the drug had been illegally imported. The difficulty is that jurors would be likely to regard the phrase "unless the defendant explains the possession to the satisfaction of the jury" as requiring something more, such as the kind of evidence suggested in the hypothetical cases put above or, as said in Chavez v. United States, 343 F.2d 85, 88 (9 Cir. 1965), "substantial evidence showing that the drug had been legally imported or that defendant's possession of it was lawful." Perhaps a sophisticated lawyer might understand an instruction along the latter lines as encompassing lack of knowledge of illegal importation since in the absence of such knowledge the possession would not be unlawful, as appears to have been thought in United States v. Moe Liss, 105 F.2d 144, 146 (2 Cir. 1939). But this would be such a cumbersome and obscure method of presenting to a jury the bearing of the final paragraph on knowledge of illegal importation that we prefer the contrary rule of United States v. Turner, 65 F.2d 587 (2 Cir. 1933); Griego v. United States, 298 F.2d 845 (10 Cir. 1962); and Chavez v. United States, 343 F.2d 85 (9 Cir. 1965).³ Where a defendant denies knowledge of illegal importation, the jury should be instructed substantially as indicated by Judge Breitenstein in Griego, supra, 298 F.2d at 849.⁴

We recognize, as Judge Hamley did in Chavez, 343 F.2d at 89-90, that requiring a more meaningful instruction on this subject may somewhat mar the full beauty of 21 U.S.C. §§ 173 and 174 for prosecutors. But, as there pointed out, the impairment is partial only since the defendant frequently does not take the stand, or makes some other defense, or may not be believed. Moreover, there are cases, of which United States v. Nuccio, 373 F.2d 168 (2 Cir. 1967), is a recent example, where the Government can prove knowledge of illegal importation by direct evidence, and it can always challenge the defendant's denial by supplementing the statutory inference with proof that almost all heroin has been illegally imported, see Hernandez v. United States, 300 F.2d 114, 118-119 n. 11 (9 Cir. 1962), and is generally known to have been so. Furthermore 21 U.S.C. §§ 173-174 is only one weapon in the Government's anti-narcotics arsenal, see, e. g., 26 U.S.C. §§ 4704 and 4705, and it would not be a source of overmuch regret if the principle here recognized should lead Congress to review and revise a statute that has been so difficult to apply and makes guilt turn on a factor so unrelated to the evil. In any event, as said by the Ninth Circuit in Chavez, 343 F.2d at 90:

"The essential elements were written into the statute by Congress. The courts have no warrant to read one of those elements out of the statute because of a feeling that it is too difficult of proof, or that the presumption establishing the element prima facie is too easy to rebut."

It remains to apply the principle here recognized to the case at bar. The judge was warranted in declining to give the requested instructions since they failed to include the element of "a conscious purpose to avoid learning the source of the heroin," 298 F.2d at 849. Still we might reverse because of the instruction that the jury must determine both "whether the defendant had satisfactorily explained his possession of the heroin and that he did not know that it had been illegally imported" (emphasis supplied), on the basis that the...