Caudillo v. United States, 15734.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation253 F.2d 513
Docket NumberNo. 15734.,15734.
PartiesAmbrose Badillo CAUDILLO, Joe Romero, Appellants, v. UNITED STATES of America, Appellee.
Decision Date26 March 1958

253 F.2d 513 (1958)

Ambrose Badillo CAUDILLO, Joe Romero, Appellants,
v.
UNITED STATES of America, Appellee.

No. 15734.

United States Court of Appeals Ninth Circuit.

March 26, 1958.


253 F.2d 514

Claude Vibart Worrell, Frank E. Loy, Los Angeles, Cal., for appellants.

Laughlin E. Waters, U. S. Atty., Rembert T. Brown, Lloyd F. Dunn, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before FEE and BARNES, Circuit Judges, and HAMLIN, District Judge.

BARNES, Circuit Judge.

Caudillo appeals from his conviction on three counts (two of sale and one of possession), and Romero appeals from his conviction on two counts (both of possession), charging violations of 21 U.S.C.A. § 176a.1 Appellants were tried and convicted by a jury.

21 U.S.C.A. § 176a prohibits the importation of marihuana, or the receipt, sale or concealment, or the facilitation in any manner of the sale or transportation or concealment of such illegally imported marihuana. It also contains, after a description of the proscribed crime, the following language:

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

Both appellants urge that the provision above is unconstitutional because there is no rational connection between the statutory presumption and the facts proved thereby. Caudillo alone urges as a second ground that any presumption

253 F.2d 515
was defeated as a matter of law by evidence received in rebuttal

There is an almost identical provision contained in 21 U.S.C.A. § 174, creating a presumption relating to possession of any narcotic drugs,2 and a somewhat similar provision in 21 U.S.C.A. § 181, creating the same presumption with respect to opium prepared for smoking.3

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.

The essence of appellants' joint claim of unconstitutionality is that marihuana, unlike opium, can be, and is grown in California and other southwestern states of the United States, and hence it cannot rationally be inferred from mere possession that that particular marihuana was knowingly illegally imported.

The evidence without question identifies the substance possessed and sold by the defendants as marihuana, and that neither defendant upon demand, produced the certificate or form relating to the taxation of the transfer of marihuana required by Internal Revenue Code § 4744.4 No direct evidence was produced as to whether the marihuana was grown within or without the United States.

However, there was testimony that the marihuana was "unmanicured," i. e., it had seeds and stems and sticks mixed with the marihuana leaves. The seeds, stems and sticks would indicate the marihuana was at least partly made up from the flowering top of a marihuana plant and not solely from the leaves. The plant so flowers at maturity. Very few mature

253 F.2d 516
marihuana plants are found growing in California. In the grower's haste to secure the marihuana, the leaves are used when the plants are immature and before they go to seed. A Los Angeles County Deputy Sheriff, called as an expert witness by defendants, testified he knew of about a dozen seizures of plants during the year before the trial in Los Angeles County. The number of plants seized ranged from one or two small plants to one seizure of two hundred and eighteen plants two years before. Only once had a mature (nine foot) plant with flowering top been seized to the memory of defendants' expert. In the manicured state one cannot tell the difference between marihuana grown in the United States and that grown outside it

From the foregoing, there existed a factual situation from which the jury could draw the inference that it was extremely unlikely that parts of flowering tops would be found in marihuana grown in the State of California.

The jury was instructed that they must weigh the evidence produced by defendants as to the origin of the marihuana, and that the ultimate burden was on the government — that the statutory presumption merely created an inference in the government's favor.5

Appellants correctly argue that the second paragraph of § 176a creates a presumption which if followed supplies two elements of the crime charged: (1) illegal importation of the marihuana, and (2) knowledge by the defendants of the illegal character of the marihuana. Pon Wing Quong v. United States, 9 Cir., 1940, 111 F.2d 751.

Both appellants rely heavily in their constitutional defense on Tot v. United States, 1943, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519. There, Section 2(f) of the Federal Firearms Act made it unlawful for one convicted of a crime of violence or who was a fugitive from justice to receive any firearms or ammunition which had been transported in interstate commerce, and that "the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act."6

The appellants there, as here, attacked the presumption created by the statute on the ground that there is no rational connection between the facts proved and the ultimate fact presumed, and that the statute casts an unfair and practically impossible burden on a defendant.

253 F.2d 517

The Supreme Court states in the Tot case:

"A statutory presumption cannot be sustained if there be no rational
...

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    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 12 Abril 1972
    ...the precise language used had been, and was to be, specifically approved by several Courts of Appeals, at least. See, Caudillo v. United States, 9 Cir., 1958, 253 F.2d 513; Leary v. United States, 5 Cir., 1967, 383 F.2d 851, 868-70; Costello v. United States, 9 Cir., 1963, 324 F.2d 260, 263......
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    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 6 Marzo 1970
    ...wall of circuit court authority, including our own, sustaining the presumption against constitutional attack. (E. g., Caudillo v. United States (9th Cir. 1958) 253 F.2d 513, cert. denied sub nom. Romero v. United States (1958) 357 U.S. 931, 78 S.Ct. 1375, 2 L.Ed.2d 1373; Costello v. United ......
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    • 15 Marzo 1962
    ...9 There is no legal obstacle to inferring the requisite intent as well from circumstantial evidence. Compare Caudillo v. United States, 253 F.2d 513, 517 (9th Cir. 1958), cert. denied 357 U.S. 931, 79 S.Ct. 1375, 2 L.Ed.2d 1373. Three potential difficulties have been suggested where evidenc......
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