Hooper v. United States

• Decision Date: 20 December 1926
• Docket Number: No. 4945.,4945.
• Citation: 16 F.2d 868
• Parties: HOOPER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

16 F.2d 868 (1926)

HOOPER et al. v. UNITED STATES.

No. 4945.

Circuit Court of Appeals, Ninth Circuit.

December 20, 1926.

R. B. McMillan, of San Francisco, Cal., for plaintiff in error Haanstra.

Soren X. Christensen, of San Francisco, Cal., for plaintiff in error Hooper.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.

Before GILBERT and RUDKIN, Circuit Judges, and JAMES, District Judge.

GILBERT, Circuit Judge.

The plaintiffs in error were defendants in an indictment, the first count of which charged them with violation of the provisions of the Harrison Narcotic Act (Comp. St. §§ 6287g-6287q) by selling 150 grains of opium, and the second count charged that on the same day they violated the Jones-Miller Narcotic Act (42 Stat. 596) by willfully, etc., receiving, concealing, buying, selling, and facilitating the transportation and concealment after importation of two packages of morphine and three packages and two capsules of cocaine which they knew had been imported into the United States contrary to law. The defendant Hooper was found guilty on both counts. Haanstra was found guilty only on the first count.

The defendant Hooper presents to this court the single contention that section 2 of Act Feb. 9, 1909, as amended by section 1, subdivision (f), of the Jones-Miller Act (Comp. St. § 8801) was insufficient to contain all the elements of the crime charged, and that it was necessary to prove affirmatively that the narcotics had been unlawfully imported and adduce evidence that the drug was in fact imported. The constitutionality of that provision of the law was sustained in Yee Hem v. United States, 268 U. S. 178, 45 S. Ct. 470, 69 L. Ed. 904. It is argued that the decision in that case is not controlling here, for the reason that the court held only that the possession of smoking opium might lawfully sustain a presumption of unlawful importation, and it is contended that the section has no application to a case such as this which involves narcotic drugs other than smoking opium for the reason that morphine and cocaine may lawfully be imported under certain regulations, whereas the importation of smoking opium is absolutely prohibited. We find no ground for the alleged distinction. The presumption of unlawful importation may attach in either case, for it is a prima facie presumption only, leaving with the accused the burden of proving lawful possession. Ng Sing v. United States (C. C. A.) 8 F.(2d) 919; Rosenberg v. United States (C. C. A.) 13 F.(2d) 369.

The defendant Haanstra contends that the Harrison Anti-Narcotic Act is unconstitutional, and he relies upon the fact that, while in United States v. Doremus, 249 U. S. 86, 39 S. Ct. 214, 63 L. Ed. 493, the majority of the court held the act constitutional, the finality of that decision was questioned in United States v. Daugherty, 269 U. S. 360, 46 S. Ct. 156, 70 L. Ed. 309, where it was intimated that more recent decisions of the court might thereafter necessitate a review of that question. But as yet there has been no such review, and we are bound by the decision in the Doremus Case. Its conclusiveness was recognized in Teter v. United States (C. C. A.) 12 F.(2d) 224, of which decision it is to be noted that the Supreme Court has...