Johnson v. United States

• Decision Date: 30 January 1970
• Docket Number: No. 17366.,17366.
• Citation: 422 F.2d 555
• Parties: Robert Burns JOHNSON, Petitioner-Appellant, v. UNITED STATES of America et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

422 F.2d 555 (1970)

Robert Burns JOHNSON, Petitioner-Appellant, v. UNITED STATES of America et al., Respondents-Appellees.

No. 17366.

United States Court of Appeals Seventh Circuit.

January 30, 1970.

Robert Burns Johnson, pro se.

Thomas A. Foran, U. S. Atty., Chicago, Ill., John Peter Lulinski, Michael B. Nash, Wayne R. Cook, Asst. U. S. Attys., of counsel, for appellee.

Before DUFFY, Senior Circuit Judge, and SWYGERT and FAIRCHILD, Circuit Judges.

DUFFY, Senior Circuit Judge.

On October 8, 1965, after a trial by jury, defendant Johnson, the petitioner herein, was found guilty on six counts of an indictment charging him with the sale and possession of heroin. (26 U.S. C. § 4705(a), 21 U.S.C. § 174). He was sentenced to the custody of the Attorney General for a period of six years.

An appeal was taken from the judgment of conviction. This Court appointed Barry E. Fink, Esq. as counsel to represent defendant on the appeal. Mr. Fink informed this Court that after an intensive study of the record and the transcript of proceedings in the District Court, he was unable to find anything which could be reversible error, and that he did not wish to urge legal propositions on this Court which he believed to be without merit. Thereafter, on April 5, 1966, this Court granted the motion of Attorney Fink to withdraw as counsel for the defendant. We affirmed the District Court's judgment, stating in part: "We have examined the complete record in this case including the transcript of the evidence. We are unable to discover any procedural or substantive error in the proceedings of the District Court. In our opinion, the instant appeal is frivolous and wholly without merit." United States v. Johnson, (7 Cir., No. 15577) Unpublished Memorandum Opinion April 5, 1966.

About one year later, the District Court granted petitioner's motion to file his application pursuant to Title 28 U. S.C. § 2201 seeking injunctive relief from his alleged "unconstitutional restraint." That application was treated as a motion pursuant to 28 U.S.C. § 2255.

The issues raised by defendant on this appeal are 1) whether the presumptive feature of Title 21 U.S.C. § 174 as applied to the possession of heroin is constitutional; 2) whether the defendant had the effective assistance of counsel; 3) whether the theory of entrapment first urged on this appeal required the Government's informer to be produced as a witness at the trial, and 4) whether the trial court's instructions to the jury violated defendant's constitutional rights.

21 U.S.C. § 174 makes it a crime to sell or import, "fraudulently or knowingly" any imported narcotic drug, and provides "Whenever on trial for a violation of this section the defendant is shown to have or 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."

The defendant did not attack the constitutionality of this statute in the District Court. In United States v. Hoskins, 406 F.2d 72, 74-75 (7 Cir., 1969) this Court held such issue should first be raised in the trial court. However, assuming that such issue can be raised for the first time before us on an appeal, we hold defendant's argument in this respect cannot be sustained.

Johnson argues that the heroin he possessed and sold could have come from domestic rather than foreign sources, and that he had no way of knowing that the heroin was imported. He argues that since heroin is produced domestically, the presumption of § 174 has no "* * * rational connection between the fact proved and the ultimate fact presumed * * *" and that "* * * The inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience." Tot v. United States, 319 U.S. 463, 467-468, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519 (1942). He cites Erwing v. United States, 323 F.2d 674, 682 (9 Cir., 1963) where it was held that the presumption of § 174 was unconstitutional with reference to cocaine hydrochloride. However, it appears from the record in that case that a considerable amount of cocaine hydrochloride is produced in this country. This is not true of heroin. Verdugo v. United States, 402 F.2d 599, 604 (9 Cir., 1968).

In Leary v. United States, 395 U.S. 6, 45 (1969) in footnote 92, 89 S.Ct. 1532, 23 L.Ed.2d 57, the Supreme Court deferred any decision as to the constitutionality of the presumption contained in 21 U.S.C. § 174 as it relates to "hard" narcotics, though it struck down the presumption as to marihuana. The Court recognized that there are essential differences between marihuana and "hard" narcotics and it follows the rational connection between fact presumed and fact proved may be valid in our case, as to heroin, and not valid as to some other narcotic drug.

The claim which petitioner (defendant) makes here that the statutory presumption is unconstitutional as to heroin has been rejected many times. A partial list of such decisions in which we now join, is Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1924); Pool v. United States, 344 F.2d 943, 944 (9 Cir., 1965), cert. den. 382 U.S. 832, 86 S.Ct. 73, 15 L.Ed.2d 76 (1965); United States v. Savage, 292 F.2d 264 (2 Cir., 1961), cert. den. 368 U.S. 880, 82 S.Ct. 129, 7 L.Ed.2d 80 (1961); Lujan v. United States, 348 F. 2d 156, 157 (10 Cir., 1965); Walker v. United States, 285 F.2d 52, 58-60 (5 Cir., 1960).

The Supreme Court has granted certiorari (June 2, 1969), 395 U.S. 933, 89 S.Ct. 2001, 23 L.Ed.2d 448 in Turner v. United States, 404 F.2d 782, 784-785 (3 Cir., 1968), which raises the issue of the constitutionality of the presumption section as it relates to cocaine hydrochloride and heroin hydrochloride. However, the pendency in Turner need not bar a decision on the point in this case in view of our recent holding in United States v. Lawler, 413 F.2d 622, 627 (7 Cir., 1969), which reaffirmed the constitutionality of 26 U.S.C. § 4705(a) although the identical question was before the Supreme Court in another case.

We think, and so hold, that defendant's claim that he did not have effective use of counsel, is without merit. It is not clear whether defendant's claim is directed only to Mr. Fink, his counsel on appeal,...