Agobian v. United States
Decision Date | 16 October 1963 |
Docket Number | No. 18635.,18635. |
Citation | 323 F.2d 693 |
Parties | Albert AGOBIAN and Albert Egishian, Appellants, v. UNITED STATES of America, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Peter J. Hughes, San Diego, Cal., for appellants.
Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, and Jo Ann Dunne, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before BARNES and DUNIWAY, Circuit Judges, and PENCE, District Judge.
Appellants were convicted by a jury on one count of possession of heroin. 21 U.S.C. § 174. Appellants urge, as grounds for reversal:
(1) That the last sentence of § 174 requiring defendant, once having been proved to have possession of narcotics to explain that possession, is unconstitutional.
(2) That the evidence is insufficient to sustain the conviction.
We have repeatedly upheld the constitutionality of § 174, as it applies to heroin and other opium derivatives, and to certain marijuana, at least. The Supreme Court of the United States has instructed us to do so. White v. United States, 9 Cir., 1963, 315 F.2d 113; Cellino v. United States, 9 Cir., 1960, 276 F.2d 941, 943-946; Yee Hem v. United States, 1925, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904. But see Erwing v. United States, 9 Cir., 1963, 323 F.2d 674.
We have previously refused, and continue to refuse, to reverse our position where the factual situation is as it here exists.
As to the sufficiency of the evidence, we are required, of course, to examine the evidence and the inferences that can be drawn therefrom most favorable to the government on this appeal. Glasser v. United States, 1941, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; Sandez v. United States, 9 Cir., 1956, 239 F.2d 239.
Was there a reasonable inference at the time of appellants' arrest that appellants had had possession of the heroin? We are not limited in our factual analysis to the precise moment of arrest, or the moment that the officers announced themselves to the appellants. That Agobian's hands were seen to drop the heroin at the moment of panic and flight does not preclude a joint constructive possession of the narcotics by both parties in the one automobile.
We quote from the factual recital in the government's brief:
The dominion and control exercised by the appellants jointly over the narcotics, if the government witnesses were to be believed (as they were, by the jury) is a far cry from the unknowledgeable "momentary grasp" mentioned by the reversing court in United States v. Santore, 2 Cir., 1960, 290 F.2d 51. The doctrine enunciated in that case is not here applicable, and we cannot follow it.
Nor are we convinced by arguments of amici curiae that the court's instruction, in the exact language contained in ...
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