United States v. Mather, 72-1280.

• Citation: 465 F.2d 1035
• Decision Date: 18 December 1972
• Docket Number: No. 72-1280.,72-1280.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert Gordon MATHER, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

465 F.2d 1035 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Robert Gordon MATHER, Defendant-Appellant.

No. 72-1280.

United States Court of Appeals, Fifth Circuit.

August 2, 1972.

Rehearing and Rehearing Denied September 13, 1972.

Certiorari Denied December 18, 1972.

Daniel S. Pearson, Robert C. Josefsberg, Bruce Rogow, Miami, Fla., for defendant-appellant; Pearson & Josefsberg, P. A., Bruce S. Rogow, Miami, Fla., of counsel.

Robert W. Rust, U. S. Atty., Michael P. Sullivan, Miami, Fla., for plaintiff-appellee.

Before BELL, GOLDBERG and RONEY, Circuit Judges.

Rehearing and Rehearing En Banc Denied September 13, 1972.

Certiorari Denied December 18, 1972. See 93 S.Ct. 685.

BELL, Circuit Judge:

This appeal is from a judgment of conviction entered by the district court without a jury, finding Mather guilty on an indictment which charged him with possessing 197.75 grams of cocaine with intent to distribute the same in violation of 21 U.S.C.A. § 841(a)(1).

Prior to trial, the district court conducted a hearing on appellant's motion to suppress the cocaine which was taken from him by federal marshals at Miami International Airport. The court denied the motion. Thereupon appellant waived jury trial and stipulated to the evidence received on the motion to suppress. The only problem in the case comes from the truncated fashion in which the matter was thereafter handled.

On this appeal, appellant contends that the district court erred in failing to grant the motion to suppress and thus in admitting the cocaine into evidence; that the evidence was insufficient to prove intent to distribute; and that 21 U.S.C.A. § 841(a)(1) is unconstitutional in that it does not require allegation or proof of movement in interstate or foreign commerce. We affirm.

I.

The seizure of the cocaine occurred after appellant had sought to board an Eastern Airlines flight to Atlanta, Georgia en route from South America. Acting with regard to an anti-hijacking profile, the ticket agent asked appellant to produce identification. Appellant replied that he had none. The agent then asked appellant to be seated, took his ticket, and summoned a supervisor. When the supervisor arrived, he was informed by the ticket agent that appellant was a selectee, i.e., a hijacking suspect. The supervisor then approached appellant and asked to see his identification. Appellant replied that his identification was in his luggage. It was at this time that the supervisor asked appellant "if he would voluntarily submit to a search by a United States Marshal." Appellant replied that he would.

Shortly thereafter a deputy United States Marshal arrived at the boarding gate and was informed that appellant was a selectee and had voluntarily agreed to be searched. During the search that followed a marshal found the cocaine in an envelope in the inside pocket of appellant's jacket. It was identified by appellant at the time as cocaine.

There is nothing in the record to suggest that appellant's consent was coerced. There is no record of promises, threats, discourtesies, or inducements. He was told that the search would be conducted by federal officers. It follows that there was no error in the district court's refusal to suppress. Cf. Cockerham v. Wainwright, 5 Cir., 1971, 444 F.2d 438. The question of consent is for the district court as the fact finder. United States v. Fike, 5 Cir., 1971, 449 F.2d 191; Perkins v. Henderson, 5 Cir., 1969, 418 F.2d 441; Landsdown v. United States, 5 Cir., 1965, 348 F.2d 405. The record supports the finding here.

Appellant's attack on the validity of 21 U.S.C.A. § 841(a)(1) is without merit. The question has recently been decided adversely to him. United States v. Lopez and Llerena, 5 Cir., 1972, 459 F.2d 949.

II.

The last question presents the problem. Was the evidence sufficient on intent to distribute? The district court inferred intent to distribute the cocaine from the amount involved, 197.75 grams.

Following the hearing on the motion to suppress the cocaine, the request of appellant and his counsel for a non-jury trial was granted. It was stipulated that the evidence adduced on the hearing to suppress would be admitted as the evidence on the trial. The court suggested that the report of chemist on the cocaine be introduced but counsel then stipulated as to the amount, 197.75 grams, and stated that the report would not be necessary.

The question of the validity of the inference turns on whether the amount of cocaine was such as will support an inference of intent to distribute as distinguished from mere possession for personal use. There is no proof that appellant did or did not use cocaine. There is no evidence as to what constitutes a normal dose or the general frequency of doses. We can assume from the stipulation that the cocaine was not mixed with other substances and was thus in the true amount of 197.75 grams.

We can obtain some guidance on the question from Turner v. United States, 1970, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610. That case involved the illegal importation of heroin and cocaine in violation of 21 U.S.C.A. § 174. This is not an importation case nor a heroin case. The analogous part of Turner is that having to do with the count charging the distribution of cocaine not in or from the original stamped package in violation of 26 U.S.C.A. § 4704(a). There the conviction was reversed as to that count on two grounds: (1) an insufficient foundation (mere possession), for the statutory inference which made a prima facie case of distribution; (2) an insufficient basis for the statutory inference of a purchase other than in or from the original stamped package. Only the first ground is applicable here.

The court concluded in Turner that the small amount of cocaine involved was insufficient to sustain the statutory inference of possession with intent to distribute rather than possession for personal use. 396 U.S. at 422-423, 90 S.Ct. 642. The amount involved was a package weighing 14.68 grams containing a mixture of cocaine and sugar, 5% of which was cocaine. Thus only .73 of one gram of cocaine was in issue.

The court also concluded in Turner, 396 U.S. at 420, 90 S.Ct. at 654, and fn. 30, that the amount of heroin in issue warranted the statutory inference with respect to the distribution of heroin under § 4704(a). The facts were that the heroin was in a package weighing 48.25 grams containing a mixture of which 15.2% was heroin. The mixture was contained within the package in 275 glassine bags.

Here appellant was in possession of 197.75 grams of cocaine en route from South America to Atlanta. We judicially know that it had a high value, worth in the neighborhood of $2,500 delivered. See United States v. Smart, 2 Cir., 1971, 448 F.2d 931, where 1,000 grams was worth from $12,000 to $13,000 delivered in New York from...