Calderon v. United States, 6055.

• Decision Date: 30 July 1959
• Docket Number: No. 6055.,6055.
• Citation: 269 F.2d 416
• Parties: Raymond Abel CALDERON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

269 F.2d 416 (1959)

Raymond Abel CALDERON, Appellant, v. UNITED STATES of America, Appellee.

No. 6055.

United States Court of Appeals Tenth Circuit.

July 30, 1959.

V. G. Seavy, Jr., Denver, Colo., for appellant.

James C. Perrill, Asst. U. S. Atty., Denver, Colo. (Donald E. Kelley, U. S. Atty., Denver, Colo., was with him on the brief), for appellee.

Before BRATTON, Chief Judge, and HUXMAN and LEWIS, Circuit Judges.

BRATTON, Chief Judge.

Raymond Abel Calderon was convicted in the United States Court for Colorado of transporting and concealing marihuana. From a sentence of imprisonment for a period of three years, he appealed.

Error is predicated upon the action of the court in declining to sustain challenges for cause directed at certain members of the jury panel and also upon the action of the court in declining to discharge the entire jury panel then attending the trial. It was disclosed in the course of the voir dire examination of the twelve members of the panel first called into the jury box that during the preceding week a number of such prospective jurors had served as jurors in one or more of three criminal cases tried in the same court. A challenge for cause was directed at each of such jurors upon the ground of such previous service. The individual challenges were denied. Subsequent to the third peremptory challenge, a motion was made to discharge the entire jury panel and set the trial over to a new jury session for the reason that of the remaining twenty members of the panel who had not then been called into the box, ten had served as jurors in one or more of the criminal cases tried during the preceding week, and that therefore appellant could not exercise intelligently his remaining peremptory challenges. The motion was denied. It is provided by statute, 28 U.C. C. § 1869, that "In any district court, a petit juror may be challenged on the ground that he has been summoned and attended such court as a petit juror at any term held within one year prior to the challenge." Appellant seeks to maintain the position that the statute authorizes a challenge for cause of a juror who has sat as such in a previous trial in the current term of court in which the challenge is asserted. We are unable to share that view. In speaking of the term of court and of the service as a juror, the statute speaks in the past tense. It fails to contain any language couched in the present tense which fairly construed indicates a congressional purpose to include as a ground of challenge for cause service as a juror in one or more cases previously tried during the then current term of court in which the challenge is asserted. The single ground of challenge created by the statute is service as a petit juror at a previous term held within one year prior to the challenge.

Further asserted error is predicated upon the admission in evidence of a written notice and demand to produce an official order form covering the transfer of marihuana. With certain exceptions not having any material bearing here, section 2591(a) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 2591(a), provides that it shall be unlawful for any person, whether or not required to pay a special tax and register under sections 3230 and 3231, 26 U.S. C.A. §§ 3230, 3231, to transfer marihuana, except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary of the Treasury. And section 2593, 26 U.S.C.A. § 2593, provides that it shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by section 2590(a), 26 U.S.C.A. § 2590(a), to acquire or otherwise obtain any marihuana without having paid such tax; and that proof that any person shall have had in his possession any marihuana and shall have failed, after reasonable notice and demand by the collector, to produce the order form required by section 2591 to be retained by him, shall be presumptive evidence of guilt under the section. Section 4742 of the Internal Revenue Code of 1954, 26 U.S.C.A. § 4742, provides that it shall be unlawful for any person, whether or not required to pay a special tax and register under sections 4751 to 4753, inclusive, 26 U.S.C.A. §§ 4751-4753, to transfer marihuana, except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary or his delegate. And section 4744, 26 U.S.C.A. § 4744, provides that it shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by section 4741(a), 26 U.S.C.A. § 4741(a), to acquire or otherwise obtain any marihuana without having paid such tax; and that proof that any person shall have had in his possession any marihuana and shall have failed, after reasonable notice and demand by the Secretary or his delegate, to produce the order form...