Hernandez v. United States

Citation300 F.2d 114
Decision Date15 March 1962
Docket NumberNo. 17482.,17482.
PartiesBernardino Chirez HERNANDEZ, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Henry C. Thumann, Lawrence J. Sheehan and Rodney E. Nelson, Los Angeles, Cal., for appellant.

Francis C. Whelan, U. S. Atty., Thomas R. Sheridan and William D. Keller, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

Before BARNES, MERRILL and BROWNING, Circuit Judges.

BROWNING, Circuit Judge.

21 U.S.C. § 174, 21 U.S.C.A. § 1741 makes it a federal offense to import narcotic drugs illegally or to deal with such drugs knowing that they have been illegally imported. The statute provides that whenever the defendant is shown "to have * * * possession" of narcotic drugs, "such possession" shall be sufficient to convict unless explained to the satisfaction of the jury. We have held in earlier cases that a defendant has "possession" of narcotic drugs within the meaning of the statute whenever the evidence, direct or circumstantial, shows that he personally shared physical custody of the narcotic drugs or had dominion and control over them. We hold in the present case that a defendant does not "have possession" of narcotic drugs within the meaning of the statute when he has neither personal physical custody nor control over the drugs, although he has engaged in a common scheme or plan with a third person, not on trial, who did have such personal custody or control of narcotic drugs.


We turn first to the circumstances of the present case.

Defendant and Jesus Joseph Correa were charged with violations of 21 U.S.C. § 174, 21 U.S.C.A. § 174 in a three-count indictment. Count 1 charged them with conspiring to receive, conceal, transport, and sell (and to facilitate the concealment, transportation and sale) of heroin which the defendants knew had been imported contrary to law; Count 2 charged them with selling and facilitating the sale of the same heroin with the same knowledge; Count 3 charged them with receiving, concealing, and facilitating the concealment and transportation of the same heroin with the same knowledge.

Correa was a fugitive, and defendant stood trial alone. Neither the government nor the defendant has designated the transcript of the evidence as part of the record on this appeal. From the briefs it appears that the defendant arranged a sale of heroin to a government agent through a government informer and met by prearrangement with the informer and the agent in the informer's hotel room, but that he left the hotel room and was not present when Correa subsequently delivered the heroin to the government agent and collected the purchase price.

The trial court, sitting without a jury, filed findings of fact and conclusions of law which form the basis of our review. The court found that neither illegal importation of the heroin nor personal knowledge by the defendant that the heroin was illegally imported had been proved. The court further found that it had not been proved that the defendant personally had either physical possession of the heroin or power to control it. The court found that "the conspiracy to violate 21 U.S.C. § 174 21 U.S.C.A. § 174 charged in count 1 of the indictment was not proved."

Nonetheless, the court found that the defendant and the fugitive Correa were parties to "a common scheme or plan" to sell the heroin, that the heroin was sold and delivered pursuant to that common scheme or plan, and that Correa had actual physical possession of the narcotics in furtherance of the common scheme or plan. The court concluded that the actual possession of Correa was to be imputed to the defendant as a matter of law because of the common scheme or plan, and that as a matter of law this "imputed possession" was sufficient to allow conviction of the defendant under Section 174 without proof of either illegal importation of the narcotic drug or knowledge by the defendant of that illegal importation.

We are thus presented with the question of whether a defendant is "shown to have or to have had possession of the narcotic drug" for the purposes of the rebuttable presumption of guilt established by Section 174, upon proof of actual possession by one not on trial with whom defendant has participated in a common scheme or plan.


Unhappily, this court has had more frequent occasion than most to consider the meaning of the term "possession" in 21 U.S.C. § 174, 21 U.S.C.A. § 174. We early held that "possession" of narcotic drugs sufficient to support the inference of guilt under the statute meant "having the narcotic drugs in one's control or under one's dominion." Mullaney v. United States, 82 F.2d 638, 642 (9th Cir. 1936), and we have recently reexamined and re-affirmed this basic position. Rodella v. United States, 286 F.2d 306 (9th Cir. 1960), cert. denied 365 U.S. 889, 81 S.Ct. 1042, 6 L.Ed.2d 199.2 As the Rodella opinion and the authorities which it cites amply demonstrate, it follows from this definition of "possession" in Section 174 that so long as the evidence establishes the requisite power in the defendant to control the narcotic drugs, it is immaterial that they may not be within the defendant's immediate physical custody, or, indeed, that they may be physically in the hands of third persons — "possession" as used in this statute includes both actual and constructive possession. The power to control an object may be shared with others, and hence "possession" for the purposes of Section 174 need not be exclusive, but may be joint.3 Moreover, like other facts relevant to guilt, "possession," actual or constructive, may be proven by circumstantial evidence. We have not hesitated to uphold convictions under Section 174 wherever either actual or constructive possession by the defendant could be honestly, fairly and conscientiously inferred.4 This interpretation of the statute, equating the term "possession" with dominion and control, and permitting proof of dominion and control by circumstantial evidence, has been adopted in other circuits as well.5

We believe that the construction which we have given to the term "possession" in Section 174 is supported by the language, the structure, and the purpose of the statute.

Control over property may be exercised either by personal physical dominion or through agents, and "it is well recognized both in civil and criminal law that the word `possession' may encompass both types of control." United States v. Santore, 290 F.2d 51, 60 (2d Cir. 1960).6 Giving the term "possession" in Section 174 this recognized legal meaning extends criminal responsibility to all those who possess power over the narcotic drugs, and thus avoids freeing the principal who does not have manual possession while punishing the agent who does.7 It effectuates, in a rational way, the clear congressional purpose to deal sternly with those who engage in an evil traffic.8

In most prosecutions under Section 174 in which the statutory presumption arising from "possession" is relied upon, if not in all, the element of the offense sought to be established by the presumption is the illegal importation of the narcotic drugs and the defendant's knowledge that the drugs were illegally imported. Direct or circumstantial proof of the other elements of the offense is almost invariably available.9 Thus the function of "possession" in the statutory scheme is to shift to the defendant the burden of identifying the legitimate source of the narcotic drugs, if, indeed, they were not illegally imported. This statutory rule of evidence10 rests upon (1) the rational relationship between "possession" of narcotic drugs by the defendant and knowledge on his part that a substance which is normally imported and rarely imported legally,11 was in fact imported contrary to law, plus, (2) as a corollary, the consideration that the "possessor" of the narcotic drugs has so much more convenient access to the facts as to their source that it is not unreasonable to require him to come forward with an explanation.12 Clearly, both rational relationship and relative convenience support an interpretation of "possession" which extends the presumption to all who have dominion and control over particular narcotic drugs.


We are convinced, on the other hand, that an interpretation of the term "possession" in Section 174, which would include the possession of a third person, not on trial, with whom defendant has entered into a common scheme or plan or whom he has aided or abetted, but whose possession of narcotic drugs he has neither shared nor controlled, would be inconsistent with the language, the structure, and the purposes of the statute.

In most prosecutions under Section 174, conviction rests ultimately upon proof that defendant had "possession" of the narcotic drug. The term must be defined with precision and restraint for in effect we are defining the basis upon which punishment will be imposed.13 It is well to be reminded, too, that the term "possession" is a highly ambiguous one in the law, and hence "so fraught with danger that the courts must scrutinize its use with all diligence * *." Guevara v. United States, 242 F.2d 745, 747 (5th Cir. 1957).

But even the most generous definition of the term "possession," as such, would not justify the construction of the statute urged by the government. As we have seen, a definition of "possession" in terms of dominion and control is amply supported by authority; constructive possession is as much a form of legal possession as is physical custody. But "possession" of a third person "imputed" to the defendant is not, in legal terminology, "possession" of the person to whom it is attributed at all. It is instead the physical or constructive possession of another, for which the defendant is to be made liable. Thus the use of the phrase "imputed possession" begs the question at issue, which is precisely whether the defendant is to be made liable...

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