Brothers v. United States

• Decision Date: 05 February 1964
• Docket Number: No. 18763.,18763.
• Citation: 328 F.2d 151
• Parties: Franklin BROTHERS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

328 F.2d 151 (1964)

Franklin BROTHERS, Appellant, v. UNITED STATES of America, Appellee.

No. 18763.

United States Court of Appeals Ninth Circuit.

February 5, 1964.

Alexander D. Calhoun, Jr., San Francisco, Cal., for appellant.

Sidney I. Lezak, Acting U. S. Atty. for District of Oregon, and Michael L. Morehouse, Asst. U. S. Atty., Portland, Or., for appellee.

Before HAMLEY, BROWNING and DUNIWAY, Circuit Judges.

HAMLEY, Circuit Judge.

Franklin Brothers, tried on an eight-count indictment charging violations of the narcotics laws, and convicted and sentenced on six counts, takes this appeal.

We consider first the specifications of error directed against the judgment of conviction, and sentence, on Count VIII. Brothers was therein charged with having, on or about July 20, 1962, received, concealed and facilitated the transportation and concealment of a quantity of a narcotic drug, namely heroin hydrochloride, in violation of section 2(c) of the Narcotic Drugs Import and Export Act, as amended, 70 Stat. 570, 21 U.S.C. § 174 (1958).

Under this count the prosecution was obliged to prove three ultimate facts: (1) that a quantity of the drug was, on or about July 20, 1962, received or concealed by Brothers or, on or about that day, he facilitated the transportation and concealment of a quantity of the drug; (2) that this quantity of drug had been imported contrary to law; and (3) that Brothers knew of the unlawful importation. See Harris v. United States, 359 U.S. 19, 23, 79 S.Ct. 560, 3 L.Ed.2d 597.

The prosecution did not produce evidence bearing specifically upon the last two of these ultimate facts. Instead, it relied upon what it regarded as sufficient evidence of possession and the statutory presumption arising therefrom as set forth in the second paragraph of section 174, quoted in the margin.¹ Giving sanction to this manner of establishing the second and third ultimate facts necessary to be proved, the trial court instructed the jury, in effect, that proof of possession would give rise to the statutory presumption sufficient to establish, prima facie, both the fact of unlawful importation and Brothers' knowledge thereof.

On appeal appellant asserts that assuming, arguendo, that the evidence as to possession was sufficient, the statutory presumption was correctly applied as to the fact of his knowledge of the unlawful importation, but not as to the fact of unlawful importation. While conceding that many court decisions, including some by this court, hold that the statutory presumption applies to both elements, appellant argues that they were wrongly decided. The error, appellant asserts, arose when the court in Copperthwaite v. United States, 6 Cir., 37 F.2d 846, improperly interpreted the decision of the Supreme Court in Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904.² Examination of the statutory background of section 174, appellant contends, supports his view that there is no statutory presumption, arising from proof of possession, that the narcotic drug was unlawfully imported.³

Appellant presents cogent reasons why Yee Hem should not have been relied upon by the court in Copperthwaite, in holding that the section 174 presumption applies with regard to the fact of illegal importation as well as the defendant's knowledge of such unlawful importation. Nevertheless, section 174, considered on its face, is reasonably open to the construction that the presumption applies to both of the elements referred to above. Under that construction "the" narcotic drug of which an accused, under section 174, must be found possessed in order to give rise to the presumption, does not refer to a drug established as having been unlawfully imported, but to the drug, whether or not established as having been unlawfully imported, which the accused received, concealed, bought, or which he sold, or of which he facilitated the transportation, concealment or sale.

In the opium statute, referred to in note 2, the reference in the otherwise similar presumption provision, was not to "the" drug, but to "such" drug. As the court said in Copperthwaite, 37 F.2d at page 848, the use of "such opium" more strongly suggests an intent to build the inference upon actual proof of importation, than the words "the narcotic drug," as used in section 174. This may explain why Congress, five years after the original 1909 enactment, amended the opium statute to add the second explicit statutory presumption that opium within the country had been unlawfully imported.

Appellant believes this demonstrates that Congress intended a statutory presumption of importation in the case of opium but not in the case of other drugs. We think it indicates that Congress, concerned about the limitations of the first presumption where the "such" language is used, was not so concerned in the case of section 174 where "the" is used. No reason has been suggested why Congress would wish to create a statutory presumption of importation in the case of opium but not in the case of narcotic drugs.

In any event, the section 174 presumption has, from the beginning, been consistently construed by the courts as applying both to the fact of illegal importation, and the defendant's knowledge thereof. A long line of decisions in this court, beginning as early as Hooper v. United States, 9 Cir., 16 F.2d 868, decided in 1926, and continuing down to the 1960's have so held.⁴ As recently as Harris v. United States, 359 U.S. 19, 23, 79 S.Ct. 560, 3 L.Ed.2d 597, the Supreme Court indicated that the fact of illegal importation as well as the defendant's knowledge of the unlawful importation, could be established through utilization of the section 174 presumption.

If this is not the construction Congress intended, it is likely that it would have said so, by statutory amendment, a long time ago.

We therefore hold that the trial court did not err in telling the jury that the presumption was available as to both elements stated above. For the same reasons we hold that the judgment of conviction on Count VIII is not invalid because of the lack of evidence bearing specifically upon the fact of unlawful importation, assuming that the evidence as to possession was sufficient to give rise to the section 174 presumption, a matter to be inquired into below.

Next, as to Count VIII, appellant argues that there was no evidence of actual or constructive possession.

We recount the relevant facts bearing upon possession, viewing the evidence, as we must, in the light most favorable to the Government.⁵

On July 11, 1962, Northern J. Cooks, a special employee of the Government, in a transaction other than that described in Count VIII, purchased some narcotic drugs from Brothers on a street in Portland, Oregon. About 11:00 P.M. on the evening of July 19, 1962, Cooks placed a telephone call to the residence of Sidney Washington in Portland and asked to speak to Brothers. Brothers came to the telephone and when Cooks indicated that he wished to purchase more narcotic drugs, the two arranged to meet at the Flamingo Club, a Portland tavern.

Following this conversation Cooks and James W. Parker, a federal narcotics agent, went to the Flamingo Club and sat down at the bar. Brothers came in a few minutes later and sat down beside Cooks. The two discussed the narcotics transaction and a price of fifty dollars for five capsules was agreed upon. Cooks turned to Parker and Parker gave Cooks fifty dollars in currency. Cooks slid this money along the counter to Brothers who then counted it. Brothers then told Cooks to follow him.

Leaving Parker at the bar, Brothers and Cooks walked east along Russell Street to Williams Street where they turned left and went about half a block to the Cathay Market. They stopped at this point and Brothers counted the money again. Brothers then looked around and Sidney Washington was seen standing nearby. Brothers then stepped to the curb, pointed to the curb, and told Cooks to pick up a Lucky Strike package. Cooks did so and Brothers then told Cooks to look in the package and see if the five capsules were there. Cooks looked in the package and found five gelatin capsules inside the cellophane inner wrapping of the Lucky Strike package.

Cooks removed the cellophane containing the capsules, discarded the rest of the Lucky Strike package, and returned to the Flamingo Club which he had left about five minutes previously. Entering the tavern, Cooks gave the five capsules to Parker. It was then about 1:05 A.M. on July 20, 1962. As Cooks and Parker left the tavern Brothers and Washington were seen driving away in Washington's car. The whitish powder contained in the five capsules was found to be heroin hydrochloride.

Under the facts summarized above Brothers was not shown to have had actual possession of the narcotics in question. However, proof of actual physical possession is not required in order to give rise to the section 174 presumption. Constructive possession is sufficient, and this may be shown by direct or circumstantial evidence that the person charged with possession had dominion and control of the drugs.⁶

The dominion and control which will constitute constructive possession may be exclusive, or it may be joint dominion and control with another or others. Arellanes v. United States, 9 Cir., 302 F.2d 603, 606. On the other hand, mere proximity to the drug, mere presence on the property where it is located, or mere association, without more, with the person who does control the drug or the property on which it is found, is insufficient to support a finding of possession.⁷

When Brothers, having arranged to sell five capsules of heroin hydrochloride to Cooks, took the latter with him on a walk up the street, pointed to a package by the curb, and told Cooks to pick it up and see if it did not contain five capsules, he exerted effective dominion and control over that package and the narcotics contained therein.

It is immaterial whether Brothers,...