402 F.2d 599 (9th Cir. 1968), 20803, Verdugo v. United States

Docket Nº:20803.
Citation:402 F.2d 599
Party Name:Jose VERDUGO and Horace Eugene Turner, Appellants, v. UNITED STATES of America, Appellee.
Case Date:May 16, 1968
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 599

402 F.2d 599 (9th Cir. 1968)

Jose VERDUGO and Horace Eugene Turner, Appellants,


UNITED STATES of America, Appellee.

No. 20803.

United States Court of Appeals, Ninth Circuit.

May 16, 1968

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[Copyrighted Material Omitted]

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Henry O. Noffsinger, Jay R. Mayhall (argued), San Francisco, Cal., for turner.

James R. Hagan (argued), Menlo Park, Cal., for Verdugo.

Jerrold M. Ladar (argued), Robert S. Marder, Asst. U.S. Atty., Cecil F. Poole, U.S. Atty., San Francisco, Cal., for appellee.

Before BROWNING and DUNIWAY, Circuit Judges, and BYRNE, [a1] District judge.

BROWNING, Circuit Judge:

Turner and Verdugo were convicted under an indictment charging that on or about July 28, 1964, in San Francisco, California, they fraudulently and knowingly sold and concealed and facilitated the sale, concealment and transportation of 2.695 grams of heroin which had been imported into the United States unlawfully, as appellants knew.

The government's evidence as to the transaction was as follows. Prior to July 28, Agent Chesley of the Federal Narcotics Bureau received information from an informer named Wilson that appellant Verdugo was dealing in narcotics. On that date Agent Chesley and Wilson went to the vicinity of 24th and Folsom streets in San Francisco, between six and seven in the evening, to meet Verdugo and to purchase narcotics from him if any were available. Wilson told Agent Chesley that they were to meet Verdugo in the Latin Circle bar on 24th Street.

When Wilson and Agent Chesley entered the bar, appellant Turner was playing a pinball machine. Wilson asked Turner if Verdugo was there. Turner said, 'No. He was here, but he's gone. He will be back.'

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Wilson and Agent Chesley then went to Glady's Cafe, which was nearby. Verdugo entered the cafe a few minutes later, walked over to Wilson and said, 'I told you the other place.' Wilson responded, 'We were there. Where were you?' Wilson then asked Verdugo, 'Can we still get the two spoons?' Verdugo replied, 'Yes, at the other place in a couple of minutes,' and left. Wilson and Agent Chesley waited a few minutes, then left the cafe and returned to the Latin Circle.

Turner was still at the pinball machine. Wilson asked him if Verdugo was 'around.' Turner replied, 'No, but he will be here.' Wilson and Agent Chesley sat down fifteen to twenty feet from Turner. In a few minutes Verdugo entered the bar and joined them. Wilson asked Verdugo if they could 'get the two spoons.' Verdugo said that Agent Chesley looked like 'heat,' but was assured that Agent Chesley was not a police officer. The terms of the purchase were agreed to. Agent Chesley handed Wilson $140 in official advance funds. Wilson passed the money to Verdugo. Verdugo then said to Wilson, 'Go see that guy over there,' indicating Turner at the pinball machine.

Wilson walked over to Turner. Turner bent down toward the floor. He then handed a tinfoil-wrapped package to Wilson.

Wilson carried the package back to Verdugo and Agent Chesley and handed it to the latter. Verdugo said to Wilson, 'Hey, your cut's in there. I give you a little good taste'; and then to Agent Chesley, 'Take it easy on that. That's good stuff.'

Subsequent examination and analysis of the contents of the package disclosed approximately two 'spoons' of heroin.

Both appellants took the stand. Turner testified that he was not in the Latin Circle bar on July 28, 1964. He testified, however, that he was frequently there around the middle of August; that he saw Wilson, alone at the bar once in August at about two o'clock in the afternoon; that Wilson asked Turner for some matches; that he, Turner, reached down and picked up some matches from a window ledge and threw them on the pinball machine; and that Wilson picked them up. Turner further testified that he had never seen Wilson and Agent Chesley together; that he had no dealings with Wilson in July 1964; that he had not seen Agent Chesley in July 1964; and that he did not recall any incident like that testified to by Agent Chesley.

Verdugo testified that Agent Chesley had arrested him on another charge in January 1964 and that in July of that year Wilson, accompanied by Agent Chesley, approached him in Glady's Cafe. Wilson asked if he had 'anything,' but he recognized Agent Chesley as 'heat' and told Wilson that he did not know what he wanted, and to let him alone. Verdugo further testified that he was in Glady's Cafe and the Latin Circle bar practically every day during July and August, but not on July 28. On that day he was 'round my house some place, playing around.' He denied that the events testified to by Agent Chesley had occurred.

A brief review of the statute 1 in the light of recent decisions 2 will be useful in considering appellants' contentions.

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The first paragraph of section 174 creates an offense having the following elements: (1) participation in a transaction involving narcotic drugs in any one of the ways specified in the statute (importation, receipt, concealment, purchase, etc.); (2) commission of this physical act 'fraudulently or knowingly'; (3) illegal importation of the narcotic drug; and (4) knowledge of the illegal importation.

The second paragraph of section 174 permits the trier of fact to infer guilt from unexplained possession of the narcotic drug by the defendant. This inference is constitutionally permissible because in common experience possession of such a substance, otherwise unexplained, is probative of the existence of all the elements of the offense, that is, there is a rational connection between the fact proved and the facts inferred. Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925).

It remains the right of the trial judge to direct a verdict or enter a judgment n.o.v. when the evidence as a whole is insufficient to support a conviction as a matter of law, notwithstanding proof of possession. And although the evidence as a whole meets this minimum standard, it remains the function of the jury to determine whether that evidence, including the evidence of possession, establishes each element of the offense beyond a reasonable doubt. United States v. Gainey, 380 U.S. 63, 68-70, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). 3

We turn to appellants' contentions, considering first those of appellant Turner.

Turner argues that even if the government's version of the facts is accepted, he had physical possession of the narcotics for only a moment and such fleeting

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contact is not sufficient to bring the section 174 inference into play. He contends that without the aid of the statutory inference the evidence was insufficient.

As we have suggested, the sufficiency of the case against Turner is not to be tested by considering the evidence relating to the duration of possession (or to any other relevant fact) in isolation, followed by an examination of the remaining evidence. The question is whether on the whole evidence, including the inferences reasonably drawn from it, the jury could reasonably conclude that all of the elements of the offense had been established beyond a reasonable doubt.

We think the jury could properly infer from the government's evidence, as we have briefly summarized it, that Verdugo arranged to sell Wilson two 'spoons' of heroin at the Latin Circle bar on July 28, that Turner was party to these arrangements after the fact if not before, that Turner agreed to participate by holding the heroin in his possession at the planned place of delivery until the money had passed, so that it might not be found on Verdugo's person in the event of trouble, and that Turner played the part he had agreed to play. The inherent improbability of Turner's own testimony added substantial strength to these inferences. 4 Thus the evidence viewed as a whole, including Turner's possession of the drug and all the circumstances surrounding that possession, was sufficient to establish that Turner facilitated the sale and concealment of the two 'spoons' of heroin, and that he did so 'knowingly'-- with actual knowledge of the nature of the transaction, the substance involved, and the significance of his acts, or with 'a conscious purpose to avoid enlightenment.' Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962).

The remaining essential elements are unlawful importation and Turner's knowledge of it. Common knowledge that importation or domestic production of heroin is prohibited by law afforded a sufficient basis for the jury's determination that this heroin was in fact unlawfully imported, absent evidence that the drug was part of the miniscule supply lawfully imported or domestically manufactured. Cf. Erwing v. United States, 323 F.2d 674 (9th Cir. 1963). And the jury could also conclude that what was common knowledge to it was known to Turner, a person shown by sufficient evidence to have knowingly engaged in the clandestine sale of the subtance, absent evidence of lack of knowledge. Cf. United States v. Llanes, 374 F.2d 712, 715-16 (2d Cir. 1967); Chavez v. United States, 343 F.2d 85, 90 (9th Cir. 1965); Griego v. United States, 298 F.2d at 848.

No constitutional problem was presented by the court's instructions permitting the jury to infer illegal importation and knowledge from Turner's possession. The jury could obviously have found that Turner was in possession and control of the heroin during the entire time covered by the government's testimony. And though the duration of Turner's possession may have been relatively brief, the circumstances surrounding it were certainly

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not such that it can be said 'the rational connection between defendant's 'possession' and the probability that the defendant had knowledge of the source of...

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