Jordan v. United States

• Decision Date: 14 November 1969
• Docket Number: No. 22668.,22668.
• Citation: 416 F.2d 338
• Parties: Allen Levair JORDAN and Alvina Lajan Johnson, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

416 F.2d 338 (1969)

Allen Levair JORDAN and Alvina Lajan Johnson, Appellants, v. UNITED STATES of America, Appellee.

No. 22668.

United States Court of Appeals Ninth Circuit.

September 15, 1969.

Rehearing Denied November 14, 1969.

Edward L. Cragen (argued), San Francisco, Cal., for appellants.

Larry S. Flax (argued), Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Crim. Div., Los Angeles, Cal., for appellee.

Before BARNES and MERRILL, Circuit Judges, and TAYLOR^*, District Judge:

FRED M. TAYLOR, District Judge:

The appellant Jordan has appealed from a judgment convicting him on five counts of violating Title 21 U.S.C. § 174¹, convicting him on two counts of violating Title 26 U.S.C. § 4705(a)², and convicting him on one count of violating Title 21 U.S.C. § 176a³.

Appellant Johnson has appealed from a judgment convicting her on two counts of violating Title 21 U.S.C. § 174, and convicting her on one count of violating Title 26 U.S.C. § 4705(a). Each of the appellants was sentenced to serve a term of imprisonment of five years on each count, the sentences to run concurrently. The appellants were tried jointly and have filed a joint brief on this appeal which sets forth several specifications of error.

The indictment on which appellants were tried contained eleven counts. Counts I and IV charged appellant Jordan and one Thomas Small, who did not appear or testify at the trial, with knowingly and unlawfully receiving, concealing and facilitating the concealment and transportation of heroin in violation of 21 U.S.C. § 174. The violation charged in count I was alleged to have occurred on or about April 24, 1967, and the violation charged in count IV was alleged to have occurred on or about April 28, 1967.

Counts II and V charged appellant Jordan and said Small with having, knowingly and unlawfully sold heroin to agent William Jackson of the Federal Bureau of Narotics, on the same two occasions, knowing such heroin to have been imported into the United States, contrary to 21 U.S.C. § 174.

Jordan and said Small were charged in counts III and VI with knowingly and unlawfully selling heroin to agent Jackson on the same two occasions without obtaining from Jackson a written order on a form issued for that purpose by the Secretary of the Treasury, contrary to 26 U.S.C. § 4705(a).

Appellant Johnson and said Small were charged in count VII with knowingly and unlawfully receiving, concealing and facilitating the concealment and transportation of heroin, a narcotic drug, on June 15, 1967, well knowing it had been imported, contrary to 21 U.S.C. § 174.

Count VIII charged Johnson and Small with having on the same date, June 15, 1967, knowingly and unlawfully sold and facilitated the sale of heroin to agent Jackson knowing it had been imported in violation of 21 U.S.C. § 174.

Count IX charged Johnson and said Small with knowingly and unlawfully selling heroin, a narcotic drug, on June 15, 1967, to agent Jackson without obtaining from him a written order on a form issued for that purpose, contrary to 26 U.S.C. § 4705(a).

Appellants Jordan and Johnson were jointly charged in count X with knowingly concealing, receiving and facilitating concealment and transportation of heroin and cocaine on July 27, 1967, knowing said drugs to have been imported, contrary to 21 U.S.C. § 174.

Count XI charged appellants with intent to defraud the United States, having on July 27, 1967, knowingly received, concealed and facilitated the transportation and concealment of marijuana (marihuana) which they well knew had been imported, contrary to 21 U.S.C. § 176a.

Appellant Jordan was convicted on all counts in which he was charged and appellant Johnson was convicted on counts VII, VIII and IX. The court granted a motion for a judgment of acquittal on counts X and XI as to appellant Johnson.

The record reveals that on two separate occasions, April 24 and April 28, 1967, appellant Jordan and the above mentioned Thomas Small sold heroin, a narcotic drug, to agent Jackson of the Federal Bureau of Narcotics, one of the officers who arrested appellants on July 27, 1967. It also appears that appellant Johnson and said Small sold heroin to agent Jackson on June 15, 1967.

The conviction of appellant Jordan on each of counts I, II and III was based on the transaction of April 24, 1967; his conviction on each of counts IV, V and VI was based on the transaction of April 28, 1967, and his conviction on each of counts X and XI was the result of the search of his residence and seizure of evidence as a result thereof on July 27, 1967.

The conviction of appellant Johnson on each of counts VII, VIII and IX rose out of the transaction on June 15, 1967.

The assignments of error raised by the appellants in regard to that part of Title 21 U.S.C. § 174 which provides that a defendant's possession of a narcotic drug shall be deemed sufficient evidence that the narcotic drug was illegally imported into the United States, and that the defendant knew of the illegal importation, unless the defendant explains his possession to the satisfaction of the jury, and the like provision pertaining to marijuana contained in Title 21 U.S.C. § 176a, will be considered together.

In light of the recent Supreme Court decision in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L. Ed.2d 57 (May 19, 1969), the conviction of appellant Jordan on count XI which charged him with a violation of 21 U.S. C. § 176a cannot be upheld. Said count charged Jordan with knowingly receiving and concealing 1,018.95 grams of marijuana which he knew had been imported into the United States contrary to law. The Government relied on the presumption of knowledge aspect of § 176a to prove that the marijuana was illegally imported into the United States in order to obtain the conviction of Jordan on count XI. In Leary the court said at 1556:

"We conclude that the `knowledge\' aspect of the § 176a presumption cannot be upheld without making serious incisions into the teachings of Tot, Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; Gainey, United States v. Gainey, 380 U. S. 63, 85 S.Ct. 754, 13 L.Ed.2d 658; and Romano, United States v. Romano, 382 U.S. 136, 86 S.Ct. 279, 15 L.Ed.2d 210. In the context of this part of the statute, those teachings require that it be determined with substantial assurance that at least a majority of marijuana possessors have learned of the foreign origin of their marijuana through one or more of the ways discussed above."

The holding in the Leary decision may give some cause to challenge the constitutionality of the "knowledge" aspect of 21 U.S.C. § 174 presumption. However, the Supreme Court specifically stated that it was not considering that problem. In Footnote 92 of its opinion the court stated:

"In refusing to follow this aspect of the reasoning in Yee Hem, Yee Hem v. United States, 268 U.S. 178, 45 S. Ct. 470, 69 L.Ed. 904, we intimate no opinion whatever about the continued validity of the presumption relating to `hard\' narcotics, which was sustained in Yee Hem and is now found in 21 U.S.C. § 174. As will appear, our holding that the § 176a `knowledge\' presumption is unconstitutional rests entirely upon a detailed inquiry into the available facts about the state of mind of marijuana users. The facts regarding `hard\' narcotics may well be significantly different."

Until the Supreme Court holds otherwise we shall adhere to the prior decisions of this court which have held the presumption concerning knowledge of illegal importation of narcotic drugs contained in § 174 is constitutional. See Verdugo v. United States, 402 F.2d 599, 604 (9 Cir. 1968); Morgan v. United States, 391 F.2d 237 (9 Cir. 1968); Nutter v. United States, 412 F.2d 178 (9 Cir., decided May 29, 1969).

Appellants further contend that their conviction for violating 26 U.S.C. § 4705(a) should be set aside on the theory that this section violates their right against self-incrimination protected by the Fifth Amendment to the Constitution. In support of this contention the appellants rely on the cases of Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968); Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1969). Title 26 U.S.C. § 4705(a) makes it unlawful to sell narcotic drugs unless the purchaser furnishes "a written order * * * on a form * * * issued in blank for that purpose by the Secretary or his delegate."

The United States Court of Appeals for the 2nd Circuit considered the constitutionality of 26 U.S.C. § 4705(a) in light of Marchetti, Grosso and Haynes, in the case of United States v. Minor, 398 F.2d 511 (1968). The issue before the court in that case was:

"Whether the Fifth Amendment privilege against self-incrimination affords a defense to a prosecution for selling narcotic drugs without the mandatory written order form required by 26 U.S.C. § 4705(a)." Id. at 512.

In resolving said question the court concluded that compliance with § 4705(a) did not subject Minor to the risk of self-incrimination. In so deciding the court found the issue they considered was significantly different from those before the Supreme Court in Marchetti, Grosso and Haynes. Id. at 514. The issues raised in the Minor case in regard to the constitutionality of Section 4705(a) were identical to those raised by appellants in this cause.⁴

Appellants also urge that they were denied due process of law because of the lapse of time between the sales of heroin and their arrest. As heretofore stated, the appellant Jordan sold heroin to agent Jackson on two separate occasions, the first being April 24, 1967, and the second on April 28, 1967, and the Indictment was returned and filed on August 16, 1967. Appellants argue that because of this time element they were prejudiced in the preparation and defense of their case. They claim that...