Jones v. United States, No. 18584.
| Court | United States Courts of Appeals. United States Court of Appeals (8th Circuit) |
| Writing for the Court | VOGEL, , and GIBSON and HEANEY, Circuit |
| Citation | 377 F.2d 742 |
| Parties | Maurice JONES, Appellant, v. UNITED STATES of America, Appellee. |
| Docket Number | No. 18584. |
| Decision Date | 01 June 1967 |
377 F.2d 742 (1967)
Maurice JONES, Appellant,
v.
UNITED STATES of America, Appellee.
No. 18584.
United States Court of Appeals Eighth Circuit.
June 1, 1967.
Norman S. London, St. Louis, Mo., for appellant.
William C. Martin, Asst. U. S. Atty., St. Louis, Mo., Richard D. FitzGibbon, Jr., U. S. Atty., St. Louis, Mo., for appellee.
Before VOGEL, Chief Judge, and GIBSON and HEANEY, Circuit Judges.
VOGEL, Chief Judge.
Maurice Jones, appellant herein, was tried and found guilty by a jury on a two-count indictment charging violations of 26 U.S.C.A. § 4704(a), which provides as follows:
"(a) General Requirement. — It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package; and the absence of appropriate taxpaid stamps from narcotic drugs taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found." (Emphasis supplied.)
Count 1 of the indictment provided:
"The Grand Jury charges:
"That on or about the 8th day of October, 1965, in the City of St. Louis, in the State of Missouri, within the Eastern Division of the Eastern District of Missouri,
MAURICE JONES,
the defendant, did unlawfully purchase from a person whose name is to the Grand Jury unknown, at and for a price to the Grand Jury unknown, a certain narcotic drug, to wit, 4.773, more or less, grams of heroin, which said narcotic drug the defendant did purchase other than in or from the original stamped package containing the same.
"In violation of Section 4704(a), Title 26, United States Code."
The second count charged a similar violation on or about the 22nd day of October, 1965, and involved 7.63 grams of heroin.
The government's testimony indicated that on October 8, 1965, and also on October 22, 1965, the appellant, after making arrangements with one Dudley Brown to sell him the narcotics referred to, brought the narcotics to Brown's home where, in the presence of Brown and under the observation of an agent of the Federal Bureau of Narcotics, he, on the first occasion, placed the narcotics on a coffee table and took the $150 left thereon in payment. On the second occasion Brown handed the money ($125) to the appellant, who handed the narcotics to him. Appellant chose to testify in his own behalf. He was his only witness. He denied the sales, denied that he was in Brown's home on the two occasions referred to, and claimed to have been elsewhere. Obviously, the jury chose to disbelieve him.
It is Jones' contention on appeal that the District Court erred in overruling his motions for judgment of acquittal at the close of the government's case and again at the close of the entire case because the evidence presented was at variance and did not correspond with the indictment. In other words, he argues that he was specifically charged with an unlawful purchase of narcotics but that the evidence offered by the government was completely at a variance in that it dealt only with the sale of narcotics. Factually, the appellant's statement is correct. The government's entire evidence disclosed possession and unlawful sales by the appellant. For establishment of unlawful purchases it relies on the statutory presumption contained in § 4704(a), supra, in that "possession" of narcotic drugs without the appropriate taxpaid stamps is prima facie evidence of a violation of the statute. Appellant cites to us a number of cases, but only one of which lends credence or support to his contention. It is from this court, Hood v. United States, 8 Cir., 1926, 14 F.2d 925, certiorari denied, 273 U.S. 765, 47 S.Ct. 570, 71 L.Ed. 880. In that case the appellant
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United States v. Liguori, No. 350
...789 (1967) (21 U.S.C. Section 174); United States v. Gibson, 310 F.2d 79 (2d Cir. 1962) (21 U.S.C. Section 176a); Jones v. United States, 377 F.2d 742 (8th Cir.), cert. denied, 389 U.S. 885, 88 S.Ct. 157, 19 L.Ed.2d 183 (1967) (26 U.S.C. Section 4704(a)). Under the circumstances the failure......
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Taylor v. United States, No. 18872.
...narcotics. This is because possession establishes prima facie evidence of the act proscribed by the statute. Jones v. United States, 377 F.2d 742, 745 (8 Cir. 1967), cert. denied 389 U.S. 885, 88 S.Ct. 157, 19 L.Ed.2d 183. The evidence here is undisputed, and in fact was admitted by Taylor ......
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U.S. v. Furina, Nos. 82-5584
...the records .... in potential criminal or civil proceedings against plaintiff." 397 F.2d at 269. See also Smith v. United States, 377 F.2d at 742. This reasoning also led us to dismiss the appeal in In re Grand Jury Proceedings (FMC Corporation), 604 F.2d 806 (3d Cir.1979). The appella......
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Shea v. Gabriel, No. 75-1096
...the issue of when a criminal prosecution is in esse 7 within the meaning of Page 882 DiBella. Compare Smith v. United States, supra, 377 F.2d at 742 (prosecution in esse because petition sought to enjoin certain action by Government and U. S. Attorney looking toward possible indictments), w......
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United States v. Liguori, No. 350
...789 (1967) (21 U.S.C. Section 174); United States v. Gibson, 310 F.2d 79 (2d Cir. 1962) (21 U.S.C. Section 176a); Jones v. United States, 377 F.2d 742 (8th Cir.), cert. denied, 389 U.S. 885, 88 S.Ct. 157, 19 L.Ed.2d 183 (1967) (26 U.S.C. Section 4704(a)). Under the circumstances the failure......
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Taylor v. United States, No. 18872.
...narcotics. This is because possession establishes prima facie evidence of the act proscribed by the statute. Jones v. United States, 377 F.2d 742, 745 (8 Cir. 1967), cert. denied 389 U.S. 885, 88 S.Ct. 157, 19 L.Ed.2d 183. The evidence here is undisputed, and in fact was admitted by Taylor ......
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U.S. v. Furina, Nos. 82-5584
...the records .... in potential criminal or civil proceedings against plaintiff." 397 F.2d at 269. See also Smith v. United States, 377 F.2d at 742. This reasoning also led us to dismiss the appeal in In re Grand Jury Proceedings (FMC Corporation), 604 F.2d 806 (3d Cir.1979). The appella......
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Shea v. Gabriel, No. 75-1096
...the issue of when a criminal prosecution is in esse 7 within the meaning of Page 882 DiBella. Compare Smith v. United States, supra, 377 F.2d at 742 (prosecution in esse because petition sought to enjoin certain action by Government and U. S. Attorney looking toward possible indictments), w......