Chavez v. United States

• Citation: 343 F.2d 85
• Decision Date: 10 March 1965
• Docket Number: No. 19365.,19365.
• Parties: Manuel CHAVEZ, a/k/a Joe Paiz, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

343 F.2d 85 (1965)

Manuel CHAVEZ, a/k/a Joe Paiz, Appellant, v. UNITED STATES of America, Appellee.

No. 19365.

United States Court of Appeals Ninth Circuit.

March 10, 1965.

Robert R. Harlan, Sacramento, Cal., for appellant.

Cecil F. Poole, U. S. Atty., Jerrold M. Ladar, Asst. U. S. Atty., San Francisco, Cal., for appellee.

Before HAMLEY, MERRILL and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge:

Manuel Chavez, also known as Joe Paiz, was convicted after a jury trial, and sentenced, on two counts of an indictment charging violations of section 2(c) of the Narcotic Drugs Import and Export Act, as amended, 70 Stat. 570 (1956), 21 U.S.C. § 174 (1958).¹ On this appeal from the judgment of conviction and sentence, Chavez presents several questions pertaining to the statutory presumption, under section 174, arising from proof that the defendant had possession of the narcotic drugs in question.

In order to convict Chavez of a violation of section 174 on either of these counts the Government needed to prove three ultimate facts: (1) that at Sacramento, on or about July 31, 1963, Chavez sold or concealed, or facilitated the sale, concealment or transportation of, the described quantity of heroin; (2) that the heroin had been imported contrary to law; and (3) that Chavez knew the heroin had been imported unlawfully. See Harris v. United States, 359 U.S. 19, 23, 79 S.Ct. 560, 3 L.Ed.2d 597; Brothers v. United States, 9 Cir., 328 F. 2d 151, 152-153.

The Government produced substantial evidence tending to prove the first of these elements. It produced no direct evidence in proof of the second and third elements. It did, however, present substantial evidence that, on the date in question, Chavez had actual possession of the quantities of heroin described in the two counts of the indictment. This proof of possession brought into operation the statutory presumption provided for in the second paragraph of section 174.² As a result, the jury was entitled to presume that the heroin had been imported contrary to law, and that Chavez knew this, unless Chavez were then able to explain his possession of the heroin to the satisfaction of the jury. See Yee Hem v. United States, 268 U.S. 178, 183-184, 45 S.Ct. 470, 69 L.Ed. 904; Brothers v. United States, supra at 153-154.

With regard to the second element of the offense, illegal importation of the heroin, Chavez made no effort to prove that the narcotics were not imported, or that they were lawfully imported. Thus there was no attempt to rebut the presumption, arising from possession, that the heroin had been imported contrary to law. As to the third element, however, namely defendant's knowledge that the drugs had been unlawfully imported, Chavez testified that he did not know the heroin had been illegally imported.

While the instructions were being settled out of the presence of the jury, the trial court indicated its view that appellant's mere denial of knowledge of unlawful importation of the heroin in question, even if believed by the jury, would not constitute an explanation of possession within the meaning of the second paragraph of section 174. The explanation would be adequate, the court ruled, only if it consisted of affirmative evidence showing legal importation or that appellant's possession was lawful.

In keeping with this view of the law, the court instructed counsel for Chavez not to argue to the jury that, if they believed Chavez' denial of knowledge of illegal importation, the presumption was overcome and Chavez should be acquitted. Also in conformity with this construction of section 174, the court, over timely objection, after referring to the presumption created by section 174, instructed the jury:

"I instruct you further that a mere denial by the Defendant that he had knowledge that the drug was illegally imported into the United States does not constitute an explanation of possession within the meaning of the statute involved, and in the absence of other evidence to show legal importation or that the Defendant\'s possession was lawful, such a denial is insufficient to overcome the presumption that the importation was illegal and that the Defendant knew the drug possessed by him was illegally imported."³

Chavez contends that the trial court erred in curtailing argument in his behalf in the manner described, in giving the quoted instruction and in refusing to give the instruction set out in note 3.

The second paragraph of section 174, quoted in note 2, creates a statutory presumption making possession of the drugs in question prima facie evidence of guilt. Yee Hem v. United States, supra at 183, 184, 45 S.Ct. 470. This means that once the defendant is found to have had possession, the fact finder may deem each of the three elements of a section 174 offense, set forth above, prima facie proved. Brothers v. United States, 9 Cir., 328 F.2d 151, 153-154; Hernandez v. United States, 9 Cir., 300 F.2d 114, 118-119.

But, as the term prima facie indicates, the statute does not establish a conclusive presumption. It is rebuttable. Rosenberg v. United States, 9 Cir., 13 F.2d 369; Griego v. United States, 10 Cir., 298 F.2d 845, 848. Nor does the presumption, when applicable, shift to the defendant the burden of proof as to any element of the crime. United States v. Sorenson, 2 Cir., 330 F.2d 1018, 1021. It merely shifts to the defendant the burden of going forward with his defense. Roviaro v. United States, 353 U. S. 53, 63, 77 S.Ct. 623, 1 L.Ed.2d 639; United States v. Gibson, 2 Cir., 310 F.2d 79, 81.

How, then, is the defendant to rebut this presumption? Ordinarily a fact, established prima facie by operation of a presumption, may be rebutted by evidence that the fact is otherwise. But the difficulty with the section 174 presumption is that the statutory language is somewhat cryptic. The second paragraph of that section does not provide, in clear-cut terms, that proof of possession establishes prima facie each element of the offense. Instead, it provides that "* * * such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."

The words "to the satisfaction of the jury," considered by themselves, provide nothing in the way of a general standard or guide. So far as this language is concerned, each jury would be left at large to decide what it will accept as an explanation of possession sufficient to avoid conviction. But clearly Congress did not intend to leave it to each jury to convict or acquit in accordance with its particular notion as to what kind of an explanation would be acceptable. See Rivera v. United States, 1 Cir., 327 F.2d 791, 792. Nor could such a construction of the statute withstand a constitutional challenge.⁴ Courts have therefore found it necessary to give meaning and content to this statutory language by specifying what kind of an explanation a jury may accept as adequate, and what kind it may reject as inadequate.

As stated above, the trial court solved the problem by holding that the only kind of an explanation of possession which a jury may accept as adequate is one consisting of substantial evidence showing that the drug had been legally imported or that defendant's possession of it was lawful. There is language in two decisions of this court which lend some support to this view, although in neither case was the question of whether the presumption could be overcome by testimony denying such knowledge specifically in issue. See Hernandez v. United States, 9 Cir., 300 F.2d 114, 118; Rosenberg v. United States, 9 Cir., 13 F.2d 369, 370. In Jackson v. United States, 8 Cir., 330 F.2d 679, the court approved an instruction similar to the kind given here, but in discussing the matter seemed to be primarily concerned with the constitutional problem.

A contrary view was expressed by this court in Bradford v. United States, 9 Cir., 271 F.2d 58. We there said, at page 62:

"If the defendant\'s contention had been that he had had possession of the heroin, but had not known that it was unlawfully imported, * * * 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."

In Bradford, as in the Hernandez and Rosenberg cases, the issue was not specifically before the court. But it was definitely in issue in Griego v. United States, 10 Cir., 298 F.2d 845, 848-849; United States v. Feinberg, 7 Cir., 123 F.2d 425, 427; and United States v. Turner, 2 Cir., 65 F.2d 587, 588. In each of those cases it was held that testimony by the defendant that he did not know the drugs were illegally imported, if believed, may be accepted by the jury as rebutting the presumption, arising from a finding of possession, that he had such knowledge.

The latter view finds support in what the Supreme Court said in Harris v. United States, 359 U.S. 19, 79 S.Ct. 560, 3 L.Ed.2d 597. In that case, while the defendant took the witness stand, he offered no explanation of his possession because he denied possession, relying on an alibi. The court there said, at page 23, 79 S.Ct. at page 564:

"* * * under the second count based on section 174, the prosecution was

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