Bass v. United States

• Decision Date: 22 January 1964
• Docket Number: No. 17257.,17257.
• Citation: 326 F.2d 884
• Parties: James BASS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

326 F.2d 884 (1964)

James BASS, Appellant, v. UNITED STATES of America, Appellee.

No. 17257.

United States Court of Appeals Eighth Circuit.

January 22, 1964.

Samuel Raban, St. Louis, Mo., made argument and filed brief for appellant.

John Newton, Asst. U. S. Atty., St. Louis, Mo., made argument for appellee and filed brief with Richard D. Fitz-Gibbon, Jr., U. S. Atty., St. Louis, Mo.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and HANSON, District Judge.

HANSON, District Judge.

This is an appeal from a conviction in a criminal case. The defendant was charged in one Count which reads:

"That on or about the 21st day of August, 1962, in the City of St. Louis, in the State of Missouri, within the Eastern Division of the Eastern District of Missouri, James Bass did unlawfully acquire from a person whose name is to the Grand Jury unknown a certain quantity of marihuana, to wit, 467 grams, 640 milligrams, more or less; he, James Bass, being a transferee required to pay the transfer tax imposed by Section 4741(2), Title 26, United States Code, not having paid said tax imposed by said Section 4741(a). In violation of Section 4744(a), Title 26, United States Code."

At the trial there was testimony that James Snokhous, a Treasury Agent, went to an apartment at 5963 Oakherst Place, St. Louis, Missouri, and arranged to have Robert Vaughn call the defendant on the telephone in an attempt to get reefer from the defendant. Later the defendant came to the apartment in a cab. Shortly thereafter, the defendant was arrested and a bag containing marihuana was discovered. The cab driver, Clarence Butts, testified that the defendant asked to be taken from the corner of Sarah and St. Louis to 5963 Oakherst and that the defendant told him another man was expected. Shortly thereafter, the defendant directed the cab driver to pick up Vernell Booker at a point about one-half of a block from where the defendant got into the cab. The defendant rode in the back seat and Mr. Booker rode in the front seat with the cab driver. There was evidence that it was Mr. Booker who put the marihuana in the cab and the marihuana was found in the front seat of the cab. The defendant was arrested shortly after he arrived at 5963 Oakherst and while the cab, the driver, and Mr. Booker were still at that address. There was strong evidence that the defendant intended to sell the marihuana to James Snokhous.

The Government relied, at least in part, upon the law that proof that any person had in his possession any marihuana and failed after reasonable notice and demand to produce the required order form is presumptive evidence of guilt.

The defendant in this appeal raised the following contentions:

1. The evidence was insufficient to support a verdict of guilty. The defendant's "Motion for a Judgment of Acquittal" should have been sustained.

2. The Government failed to establish affirmatively that the marihuana in the actual possession of Booker and introduced as evidence, was contraband or illegal.

3. Proof of possession of a narcotic drug in defendant may not be established by circumstantial evidence when the undisputed direct proof establishes possession continuously in some other person (Booker).

4. The arrest of defendant was illegal, without probable cause, and without a warrant for his arrest and it was error not to sustain defendant's "Motion to Quash the Indictment."

5. The Court in error and to the prejudice of the defendant permitted the Government to elicit and introduce into evidence, hearsay and improper testimony and evidence over the objections of the defendant.

6. The Court in error and to the prejudice of the defendant restricted the defendant in his cross-examination in various aspects, preventing the defendant from eliciting relevant facts and testimony and thereby deprived the defendant of a fair trial.

It is settled law that knowledge of presence plus control over the marihuana amount to possession sufficient to raise the presumption of guilt of the defendant. Evans v. United States, 9 Cir., 257 F.2d 121; People v. Antista, 129 Cal.App.2d 47, 276 P.2d 177; Guevara v. United States, 5 Cir., 242 F.2d 745, 746. Mere proximity to the narcotic, or mere association without more with a person having control over the narcotic or mere presence on the property where the narcotic is found is not sufficient proof of possession. In applying this rule to the facts of the present case, it is clear that there is strong evidence that the defendant had knowledge of the marihuana and that the defendant was controlling it. The defendant was bringing the marihuana or causing it to be brought to 5963 Oakherst Place to be sold. There was much more than mere proximity to the marihuana or presence in the premises where the marihuana was found. Also there was much more than mere association with Mr. Booker. There is strong evidence that the defendant either controlled Mr. Booker or that the defendant and Mr. Booker were in joint control over the marihuana. The evidence is clear that it was the defendant alone who had control over the cab by his directions given to the driver.

In Evans v. United States, supra, People v. Antista, supra, and Arellanes v. United States, 9 Cir., 302 F.2d 603, the courts held that control over the apartment or automobile where the narcotic is found is strong evidence of control over the narcotic. It does not have to be exclusive control over the premises if there is other evidence to show control over the marihuana. Other cases on this point are Richards v. United States, 107 U.S.App.D.C. 197, 275 F. 2d 655; Braswell v. United States, 5 Cir., 200 F.2d 597; Manning v. United States, 5 Cir., 274 F.2d 926 (This case was reversed on a different point as indicated in 5 Cir., 280 F.2d 422. This was done in light of Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1431, 4 L.Ed.2d 1669, and Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688.) Power to dispose of the narcotic and power to produce the drug is evidence of control. Arellanes v. United States, supra; Hernandez v. United States, 9 Cir., 300 F.2d 114. The possession may be joint. Wilson v. United States, 10 Cir., 218 F.2d 754; Gallegos v. United States, 10 Cir., 237 F.2d 694.

The appellant's second contention is that Booker had actual possession of the marihuana and that the Government never proved that Booker did not have lawful possession. However, the evidence would support a finding that Booker was not the one who had the control over the marihuana. It was in the cab where either the defendant or Booker had access to it. There was evidence that the defendant was intending to effect its sale. The evidence would also sustain a finding of joint control. Control may be received through an agent. Wilson v. United States, supra; United States v. Santore, 2 Cir., 290 F.2d 51; Rodella v. United States, 9 Cir., 286 F. 2d 306; Hernandez v. United States, supra; Teasley v. United States, 9 Cir., 292 F.2d 460. In the present case, there was considerable circumstantial evidence tending to show that Booker did not have lawful possession and this is a fact which may be established by such evidence. Grabenheaimer v. United States, 6 Cir., 194 F.2d 447; Symons v. United States, 9 Cir., 178 F.2d 615. These cases are not factually the same as the present in that it was the defendant in those cases whose unlawful possession was established by evidence other than by refusal to produce the required documents. Nonetheless the basic issue is the same and the evidence did tend to show Booker's unlawful possession. Other cases on this issue are Gondron v. United States, 5 Cir., 256 F.2d 205; Manning v. United States, supra.

The defendant's contention is that if there is lawful possession in Booker, there could not be unlawful possession in the defendant. In the present case, this contention is answered by the fact that there is substantial evidence that the marihuana was contraband and the possession in Booker was unlawful. The defendant cites Griego v. United States, 10 Cir., 298 F.2d 845, but in the present case there is no claim that any presumption was made conclusive or that the defendant was denied the right to offer evidence to rebut any presumption. In United States v. Mills, 3 Cir., 293 F.2d 609, cited by defendant, the court held there was insufficient proof of the heroin in question. The present case is factually different. The defendant cites Perez v. United States, 5 Cir., 297 F.2d 12, which was reversed because of an error in the instructions. That case stands for the rule that both control and knowledge are necessary for possession.

The defendant's third contention is that where Booker was in continuous possession of the marihuana, possession of the same marihuana by the defendant may not be established by circumstantial evidence. There are many cases saying that constructive possession may be established by circumstantial evidence. United States v. Santore, supra; Teasley v. United States, supra; Hernandez v. United States, supra (dicta); Williams v. United States, 9 Cir., 290 F. 2d 451; Rodella v. United States, supra; Evans v. United States, supra; Johnson v. United States, 9 Cir., 270 F.2d 721. No cases say that circumstantial evidence cannot be used to show constructive possession if its sufficiency is established. The statement in United States v. Landry, 7 Cir., 257 F.2d 425, that "But no court, so far as we are aware, has held that proof of possession by one person may be established by circumstantial evidence when the undisputed direct proof places that possession in some other person" is an inaccurate statement if the court meant to say that constructive possession cannot be established by circumstantial evidence. Evidently, what that court meant is that when possession is solely in one person, circumstantial evidence would be insufficient to show possession in another. In the present case, there was certainly evidence to find that...