Bradford v. United States

• Decision Date: 09 October 1959
• Docket Number: No. 15624.,15624.
• Parties: John E. BRADFORD, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

271 F.2d 58 (1959)

John E. BRADFORD, Appellant, v. UNITED STATES of America, Appellee.

No. 15624.

United States Court of Appeals Ninth Circuit.

March 9, 1959.

On Rehearing October 9, 1959.

John E. Bradford, in pro. per., Cantillon & Cantillon, Beverly Hills, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Leila F. Bulgrin, Robert John Jensen, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before FEE, BARNES and HAMLIN, Circuit Judges.

HAMLIN, Circuit Judge.

The appellant, John E. Bradford, was convicted by a jury of two counts in an indictment charging him with selling heroin on two different dates in violation of § 174, Title 21 U.S.C.A. He received a sentence of fifteen years on each count, the sentences to run consecutively.

According to a portion of the Government's testimony, the government agent Farrington made purchases of heroin on two occasions from Bradford and paid him the sum of $275.00 on each occasion. Bradford's testimony, while similar to Farrington's on many points, differed therefrom in certain particulars. Bradford admitted that he received the money from Farrington on each occasion. His story, however, was that Farrington had asked him to make a "buy" of heroin for him from a certain "Pat". The appellant testified that he was an addict and that Farrington had said that he would give him a couple of capsules of heroin if he, Bradford, made the buy for him. Bradford then testified that he contacted "Pat" and was told by "Pat" where the heroin would be and where to leave the money. Bradford further testified that he met Farrington at this place, and that Farrington picked up the heroin in a brown package in a gutter underneath an automobile.

Concerning the second transaction, Bradford testified that Farrington had likewise given him $275.00 to buy heroin, that he had contacted "Pat", and was told that the heroin would be in a brown paper bag under a palm tree at a certain address. He further testified that he and Farrington drove by the address in Farrington's car, saw the brown bag under the palm tree, and that Farrington had then brought him back to where they had started from. Farrington testified that he later went back to the palm tree, picked up the brown bag, and that it was found to contain heroin. Bradford further contended that he was a heroin addict, that he was not interested in selling narcotics, and that while Farrington had told him that he would give him a few capsules of heroin if he made the buy for him that Farrington had not lived up to his promise in this regard.

Bradford further testified that he did not know where the heroin came from or that it was imported into the United States. He testified he thought it could be legally obtained by a doctor's prescription. He also introduced testimony by a chemist that heroin was derived from morphine by a simple process, that morphine could be synthesized and this had been done at the University of Rochester in 1952; that codeine, a derivative of opium, was manufactured in the United States; and that heroin could be produced from codeine. During the trial it was stipulated by the Government and the appellant that in 1954, 1955 and 1956, many thousands of ounces of morphine alkaloids and salts had been lawfully produced in the United States from lawfully imported raw opium.

Appellant, through his Court-appointed counsel, in an opening brief of 155 pages makes many claims of error.

The statute which the appellant was convicted of violating (the Jones-Miller Act, § 174, Title 21 U.S.C.A.) reads as follows:

"Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years, and, in addition, may be fined. * * *

"Whenever on trial for a violation of this subsection the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.

"For provision relating to sentencing, probation, etc., * * *."

The appellant first attacks the constitutionality of this Act. Many cases have upheld the constitutionality of this and similar statutes. Gonzales v. United States, 9 Cir., 1947, 162 F.2d 870; Yee Hem v. United States, 1925, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904; Casey v. United States, 1928, 276 U.S. 413, 48 S. Ct. 373, 72 L.Ed. 632.

Recently, this Court in considering a similar attack upon the constitutionality of a similar section § 176(a) Title 18 U.S.C. covering the importation, possession and sale of marihuana said in Caudillo v. United States, 1958, 253 F.2d 513, 515:

"The Supreme Court (Yee Hem v. United States, 1925, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904) and this Court (Hooper v. United States, 9 Cir., 1926, 16 F.2d 868; Rosenberg v. United States, 9 Cir., 1926, 13 F. 2d 369) have held the presumption of unlawful importation of narcotic drugs arising from possession not unconstitutional. `The statute has laid down a rule, not of substantive law * * * but merely of evidence.\' Stein v. United States, 9 Cir., 1948, 166 F.2d 851, certiorari denied 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768; Ng Choy Fong v. United States, 9 Cir., 1917, 245 F. 305, 307. Requirement of proof `to the satisfaction of the jury\' is not unconstitutional; Gonzales v. United States, 9 Cir., 1947, 162 F.2d 870, 871. It is not unconstitutional as forcing defendant to testify; Yee Hem v. United States, supra; Dear Check Quong v. United States, 1947, 82 U.S.App.D.C. 8, 160 F.2d 251; Mullaney v. United States, 9 Cir., 1936, 82 F.2d 638, 641; Rosenberg v. United States, supra."

We hold the statute to be constitutional.

Appellant makes an attack upon the instructions given by the Court concerning this statute.

Before examining these instructions, it must be remembered that the appellant at all times denied that he possessed the heroin at any time. His contention was that at the instigation of the government agent, Farrington, he contacted by telephone a certain "Pat", and that as a result, the heroin was found by the appellant and Farrington, on one occasion in a gutter beneath the wheel of an automobile, and upon another occasion was observed by the appellant and Farrington to be under a tree. On each occasion, according to appellant, Farrington personally took the heroin without the appellant touching it at all. On the occasion where the heroin was observed by Farrington and the appellant to be under the tree, Farrington later, by himself and without the appellant being present, went to the tree and picked up the package containing the heroin.

At no time did appellant attempt to "explain the possession (of the heroin) to the satisfaction of the jury." On the contrary, at all times he denied its possession.

In this posture of the case, the Court gave certain instructions to the jury concerning the statute, which are set out in the footnote.¹

We agree that these instructions are not a model to follow. While certain of these instructions set out the proper rule (1-A, 1-F, 1-G, 1-H and 1-I), certain parts of the others may be said to be contradictory thereof. If the defendant's contention had been that he had had possession of the heroin, but had not known that it was unlawfully imported, or that he had been informed that it was legally obtained through a prescription or otherwise, or had given some other explanation of its possession, — then the instructions of the Court that "there is no explanation in the United States for the possession of heroin" would have been clearly prejudicial.

A defendant has a right to have the jury pass upon his explanation of possession. As stated in United States v. Feinberg, 7 Cir., 123 F.2d 425, at page 427:

"By force of the statute, possession of narcotics gives rise to an inference that the narcotics were imported contrary to law, and a further inference that the person in possession had knowledge of such unlawful importation. True it is, a defendant on trial may overcome these inferences by satisfactory proof that in his case possession of narcotics did not involve a violation of the statute, either because the narcotics were not imported contrary to law or because he had no knowledge of unlawful importation. The explanation of possession, however, if it is to serve the defendant\'s purpose, must not only be believed by the jury but must also be one that shows a possession lawful under the statute."

In United States v. Roviaro, 353 U.S. 53, at page 63, 77 S.Ct. 623, at page 629, 1 L.Ed.2d 639, the Court said:

"Petitioner contends that the Government in all cases must make a further affirmative showing that the accused knew he possessed narcotics. He argues that his failure to do so here entitles him to an acquittal. That contention, however, has been decided against petitioner in the cases cited * * *." Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 373, 72 L.Ed. 632; United States v. Chiarelli, 7 Cir., 192 F.2d 528, 531; Landsborough v. United States, 6 Cir., 168 F.2d 486; Stoppelli v. United States, infra.

This court, in Stoppelli v. United States, 9 Cir., 1950, 183 F.2d 391, approved an instruction reading as follows:

"The law further provides that when on trial for concealment or facilitating the concealment of heroin the defendants have shown to have had possession of such heroin, such possession shall be deemed sufficient evidence to authorize the defendants\' conviction, unless the defendants explain their possession to

...