Griego v. United States, No. 6826.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtLEWIS and BREITENSTEIN, Circuit , and CHRISTENSON
Citation298 F.2d 845
PartiesDaniel Harold GRIEGO, Appellant, v. UNITED STATES of America, Appellee.
Decision Date10 January 1962
Docket NumberNo. 6826.

298 F.2d 845 (1962)

Daniel Harold GRIEGO, Appellant,
v.
UNITED STATES of America, Appellee.

No. 6826.

United States Court of Appeals Tenth Circuit.

January 10, 1962.


298 F.2d 846

Eugene Deikman, Denver, Colo., for appellant.

Lawrence M. Henry, U. S. Atty. for District of Colorado, Denver, Colo., for appellee.

Before LEWIS and BREITENSTEIN, Circuit Judges, and CHRISTENSON, District Judge.

BREITENSTEIN, Circuit Judge.

Appellant-defendant Griego appeals from a judgment entered on a jury verdict finding him guilty on all four counts of an indictment charging the receipt, concealment, and sale of unlawfully imported narcotic drugs in violation of 21 U.S.C.A. § 174. The sole ground urged

298 F.2d 847
for reversal is that the trial court erred in its instructions to the jury

So far as pertinent Section 174 reads:

"Whoever * * * knowingly * * * receives, conceals, buys, sells, * * * any such narcotic drug after being imported * * * knowing the same to have been imported * * * contrary to law * * * shall be imprisoned * * *.
"Whenever * * * the defendant is shown to * * * have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."

Evidence for the government was that defendant told a federal narcotics agent that he could obtain heroin for the agent and did so on four occasions with money furnished by the agent. On each occurrence the defendant withheld some of the heroin to use in the satisfaction of his own addiction. The defendant took the stand in his own defense, admitted the transactions in question, and denied knowledge of the unlawful importation of the heroin.

In his instructions the trial judge, after referring to the second paragraph of Section 174, told the jury that denial of knowledge of unlawful importation, standing alone, was not a defense and that the only sufficient explanation was one which convinced the jury that the defendant came into possession of the heroin legally.1 Timely and adequate objections were made by defense counsel to this portion of the charge.

The constitutionality of Section 174 has consistently withstood challenge.2 The government urges that denial of knowledge, standing alone, is not sufficient as a matter of law to require submission of the question of knowledge to the jury because it is not accompanied by an assertion of legal possession.3 Additionally the government contends that

298 F.2d 848
the Narcotic Control Act of 19564 by declaring all heroin to be contraband makes lawful possession impossible and hence precludes the possibility of a satisfactory explanation

The essential elements of the crime charged are: (1) receipt, concealment, or sale of heroin by the defendant; (2) unlawful importation of the heroin by some one; and (3) the defendant's knowledge of such unlawful importation.5 Receipt, concealment and sale of the heroin were established by the prosecution's evidence and are not controverted by the defendant. To sustain the presence of the other two elements the government relies on the second paragraph of Section 174. While the provisions of that paragraph have been referred to as a statutory presumption, actually they do no more than make proof of possession prima facie proof of the elements of the crime. Such was our holding in Velasquez v. United States.6 Prima facie proof is always rebuttable. The effect of the second paragraph is to insulate the prosecution against the hazard of a directed verdict when nothing more than possession is proved and to authorize, but not require, conviction when possession, not satisfactorily explained, is established.

If, as the government contends, the satisfactory explanation provision of that second paragraph requires evidence of lawful possession which cannot be made because heroin is contraband, then proof of knowing possession7 with dominion and control over the heroin8 is conclusive, not prima facie, proof of the commission of the crime. Such construction involves constitutional difficulties. Congress no doubt has broad powers pertaining to the receipt of evidence in federal courts and may make proof of one fact prima facie proof of another fact as a matter of public policy when there is a rational connection between the fact proved and the fact inferred.9 Still, by the use of that power, Congress may not go beyond the powers delegated to the federal government under the Constitution of the United States. Congress may control traffic in narcotic drugs in accordance with its power over interstate and foreign commerce and under its tax power but its ability to declare mere possession of a narcotic drug unlawful is doubtful. In this connection it should be noted that the Narcotic Control Act of 1956, while declaring heroin to be contraband, imposes penalties only for border crossings and the use of communication facilities.

The acceptance of the government's position would make it impossible for a defendant, in a case such as this, to controvert...

To continue reading

Request your trial
37 practice notes
  • U.S. v. de Francisco-Lopez, FRANCISCO-LOPE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 17, 1991
    ...avoid enlightenment, i.e. to avoid knowledge of the narcotics concealed in the vehicle. Glick, 710 F.2d at 642; Griego v. United States, 298 F.2d 845, 849 (10th Cir.1962). 4 Actual or positive knowledge is unnecessary. Turner v. United States, 396 U.S. 398, 417, 90 S.Ct. 642, 652-53, 24 L.E......
  • Turner v. United States, No. 190
    • United States
    • United States Supreme Court
    • January 20, 1970
    ...States v. Peeples, 377 F.2d 205 (C.A.2d Cir. 1967); Chavez v. United States, 343 F.2d 85 (C.A.9th Cir. 1965); Griego v. United States, 298 F.2d 845 (C.A.10th Cir. 1962). Even when the defendant challenges the validity of the inference as applied to his case, the instruction on the statutory......
  • U.S. v. Jewell, No. 74-2832
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 27, 1976
    ...not entitled." 396 U.S. at 417, 90 S.Ct. at 653, 24 L.Ed.2d at 624. (footnotes omitted, emphasis added), citing Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962). Griego remanded a section 174 charge for a new trial, stating, "In the circumstances of this case the jury should be i......
  • United States v. Austin, No. CR 84-151-01.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 19, 1985
    ...v. Glick, 710 F.2d 639, 643-44 (10th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 995, 79 L.Ed.2d 229 (1983); Griego v. United States, 298 F.2d 845, 849 (10th Cir.1962); United States v. Cincotta, 689 F.2d 238, 243-44 (1st Cir.), cert. denied, 459 U.S. 991, 103 S.Ct. 347, 74 L.Ed.2d 387 (19......
  • Request a trial to view additional results
37 cases
  • U.S. v. de Francisco-Lopez, FRANCISCO-LOPE
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • July 17, 1991
    ...avoid enlightenment, i.e. to avoid knowledge of the narcotics concealed in the vehicle. Glick, 710 F.2d at 642; Griego v. United States, 298 F.2d 845, 849 (10th Cir.1962). 4 Actual or positive knowledge is unnecessary. Turner v. United States, 396 U.S. 398, 417, 90 S.Ct. 642, 652-53, 24 L.E......
  • Turner v. United States, No. 190
    • United States
    • United States Supreme Court
    • January 20, 1970
    ...States v. Peeples, 377 F.2d 205 (C.A.2d Cir. 1967); Chavez v. United States, 343 F.2d 85 (C.A.9th Cir. 1965); Griego v. United States, 298 F.2d 845 (C.A.10th Cir. 1962). Even when the defendant challenges the validity of the inference as applied to his case, the instruction on the statutory......
  • U.S. v. Jewell, No. 74-2832
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • February 27, 1976
    ...not entitled." 396 U.S. at 417, 90 S.Ct. at 653, 24 L.Ed.2d at 624. (footnotes omitted, emphasis added), citing Griego v. United States, 298 F.2d 845, 849 (10th Cir. 1962). Griego remanded a section 174 charge for a new trial, stating, "In the circumstances of this case the jury should be i......
  • United States v. Austin, No. CR 84-151-01.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 19, 1985
    ...v. Glick, 710 F.2d 639, 643-44 (10th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 995, 79 L.Ed.2d 229 (1983); Griego v. United States, 298 F.2d 845, 849 (10th Cir.1962); United States v. Cincotta, 689 F.2d 238, 243-44 (1st Cir.), cert. denied, 459 U.S. 991, 103 S.Ct. 347, 74 L.Ed.2d 387 (19......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT