Erwing v. United States

• Decision Date: 17 October 1963
• Docket Number: No. 18440.,18440.
• Citation: 323 F.2d 674
• Parties: Haywood ERWING, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

323 F.2d 674 (1963)

Haywood ERWING, Appellant, v. UNITED STATES of America, Appellee.

No. 18440.

United States Court of Appeals Ninth Circuit.

October 17, 1963.

Edgar Paul Boyko, Los Angeles, California, for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan, Asst. U. S. Atty., Chief, Criminal Section, and Russell R. Hermann, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, JERTBERG and KOELSCH, Circuit Judges.

JERTBERG, Circuit Judge.

Appellant appeals from his conviction on the second count of a two count indictment charging appellant in Count 1 with selling and facilitating the sale of 9 grams and 300 milligrams of cocaine, and in Count 2 with receiving, concealing, transporting and facilitating the transportation and concealment of the same cocaine on the same day, both offenses in violation of Title 21 U.S.C.A. § 174.¹

The present appeal is from a retrial of the case, this Court having reversed the previous conviction. See Erwing v. United States, 296 F.2d 320 (9 Cir., 1961).

Appellant's specification of errors are

"I. The trial court lacked jurisdiction of the subject matter of this case, in that there was no evidence of unlawful importation of the drug cocaine hydrochloride, nor could such importation be legally or constitutionally inferred in this case without violating due process of law.

"II. The trial court lacked jurisdiction of the subject matter of this case because there was no clear and convincing evidence of possession by the appellant of any narcotic drug, such possession being a jurisdictional fact.

"III. The judgment and verdict on Count 2 of the indictment were contrary to the weight of the evidence and unsupported by substantial evidence.

"IV. The appellant was deprived of a trial by a fair and impartial jury because of his inability to adequately examine prospective jurors on their voir dire, and because of the trial court\'s denial of his motions with respect thereto, which constituted an abuse of the trial court\'s discretion under the special circumstances of this case. Moreover, and as a direct result thereof, the appellant was deprived of a trial by a fair and impartial jury by reason of the fact that the trial jury so selected was either unable or unwilling to, and did not in fact, follow the instructions of the trial court with respect to the law applicable to this case.

"V. The indictment herein failed to state facts sufficient to constitute an offense against the United States and, therefore, appellant\'s motions to dismiss the same and in arrest of judgment should have been granted."

We will first discuss appellant's first specification of error.

21 U.S.C.A. § 174 is designed to control the unlawful importation into the United States of "any narcotic drug." The term is defined in 21 U.S.C.A. § 171 (a).² The matter relevant to this case appears in § 4731.³

The uncontradicted evidence as to the narcotic drug involved in this case established that it was cocaine hydrochloride. Such substance was received in evidence and marked Exhibit 4. On this subject the testimony of two expert witnesses was received, one of whom testified on behalf of appellee and the other one on behalf of appellant. We have examined the summaries of the testimony of these two witnesses as they appear in appellant's opening brief and appellee's brief, against the testimony appearing in the transcript. The following summary of the testimony of each witness has been taken mainly from the appellant's opening brief but supplemented in instances by resort to the appellee's brief.

Herman Meuron was produced as a witness in behalf of the Government and states that he is a chemist employed by the U. S. Treasury Department and previously by the United States Food and Drug Administration; that his specialty is in the field of organic analysis and that he has conducted numerous analyses of substances to detect the presence of narcotics; that he examined Government Exhibit No. 4 for the presence of narcotic substances; that he tested the same for opium alkaloids and found none present; that he tested it for procaine or novocaine and that these tests likewise were negative. That thereafter, he conducted several tests for cocaine and that as a result of these tests he found the exhibit to contain pure cocaine; that cocaine is prepared from the leaves of the coca plant, which plant is commercially grown in Peru, Ecuador and Java; that all of the cocaine he had examined while a Government chemist was found to be pure unadulterated cocaine.

He further testified that he is familiar with the United States Pharmacopoeia, which is a book containing a compilation of chemicals and substances which are used by doctors in treating diseases or which are dispensed by druggists and which also lists minimum standards of purity and composition of such drugs and pharmaceuticals which are sold or prescribed in the United States or manufactured in the United States; that the United States Pharmacopoeia contains a listing for the drug known as cocaine and its approved standard of purity and composition. That it is not the drug cocaine which comes from Peru, Bolivia and Java, but rather the coca leaves which are commercially grown in those countries (and from which the raw material for the drug is extracted); that some so-called crude commercial cocaine is also imported from these countries, but not pure, refined cocaine hydrochloride; that the raw materials for cocaine are mainly imported from South America in one of two ways, namely, either the coca leaves themselves which are then processed in this country and (2) a kind of crude commercial cocaine which has been made by a very rough treatment of chopped up coca leaves in those foreign countries. That Government's Exhibit No. 4 does not contain coca leaves nor crude untreated cocaine extract from the leaves, but rather virtually pure cocaine, or rather a salt of the alkaloid cocaine known as cocaine-hydrochloride; that cocaine is an alkaloid which is a complicated organic compound, extracted from the coca leaves, and when so extracted is not in the form of the hydrochloride; that before the hydrochloride can be obtained, it is necessary to take the crude commercial cocaine and treat it with hydrochloric acid; that by such treatment a pure crystalline compound is obtained which is more soluble and therefore more readily administered for medical purposes. That he has no knowledge whether this country ever imports any cocaine hydrochloride from any of the foreign countries which he had previously mentioned; that he doesn't know which domestic companies manufacture cocaine hydrochloride; that he doesn't know whether coca leaves have been grown, in recent years, in the Gulf of Mexico states; that he is not familiar with the specific provisions in the United States laws which permit the lawful importation of coca leaves; that he has no knowledge whether or not cocaine hydrochloride, being the substance which he found in Government's Exhibit No. 4, is ever imported from any foreign country; that he did not make any tests to determine whether the cocaine hydrochloride in Government's Exhibit No. 4 was manufactured in the United States or imported from some foreign country and that he does not know any such tests that can be made.

Mr. Meuron further testified that cocaine may be legitimately used in this country for medicinal purposes; that he has read about its being used medically as a local anesthetic and in connection with eye examinations and dental treatments; that cocaine is not absolute contraband and unlawful to be manufactured or possessed in this country as is for instance heroin; that he does not know whether or not cocaine is an addicting drug in the same way as opium derivatives. That cocaine when used medically must be dispensed on a doctor's prescription. That the cocaine hydrochloride he found in Government's Exhibit No. 4 appeared to be pure and that he had no basis for, nor could he state affirmatively, that this particular sample that he examined did not come from a pharmacy or drug store or hospital dispensary in this country. That he "assumed" that pure or substantially pure cocaine may be produced in foreign countries; that he "imagined" that it is commonly in use throughout the world; that he has never seen crude cocaine, but "guesses" that the same contains impurities, including coloring, and does not consist of white crystals; that he does not know whether any cocaine is exported from the United States; that he does not know of any tests that would tell where cocaine contained in Government's Exhibit 4 would come from or where it would have been manufactured in the pure state.

That pure or crude cocaine on the one hand and cocaine hydrochloride on the other are entirely different things and that no amount of removing of impurities, coloring or vegetable substances from crude cocaine would turn it into cocaine hydrochloride; that cocaine must be treated with hydrochloric acid before it forms the hydrochloride, which is an additional compound and which is chemically different; that cocaine hydrochloride is not found free in nature in the coca leaf or in any other place to his knowledge; that cocaine hydrochloride is a man-produced pharmaceutical drug.

Andrew William Phillips, produced as a witness in behalf of defendant, testified as follows: He is a pharmacist registered in the State of California, licensed as such; that he also is licensed as a pharmacist and so registered in the State of Texas; that he holds two kinds of pharmacist's licenses in the State of California, namely, a pharmaceutical manufacturer's license and a registered pharmacist's license, which authorize and license him to both dispense and manufacture pharmaceuticals; that he is a graduate of an accredited school of pharmacy and that ever since graduation he has been engaged in that field, mostly in retail and manufacturing. That in his work as a...