Martone v. United States, No. 7632.
| Court | United States Courts of Appeals. United States Court of Appeals (1st Circuit) |
| Writing for the Court | COFFIN, Circuit |
| Citation | 435 F.2d 609 |
| Parties | John Defino MARTONE, Defendant, Appellant, v. UNITED STATES of America, Appellee. |
| Decision Date | 07 December 1970 |
| Docket Number | No. 7632. |
435 F.2d 609 (1970)
John Defino MARTONE, Defendant, Appellant,
v.
UNITED STATES of America, Appellee.
No. 7632.
United States Court of Appeals, First Circuit.
December 7, 1970.
John Defino Martone, pro se.
Julio Morales Sanchez, Acting U. S. Atty., Beatrice Rosenberg, and Colleen C. Kollar, Attys., U. S. Dept. of Justice, on brief for appellee.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
COFFIN, Circuit Judge.
Petitioner was convicted in 1967 of unlawfully purchasing cocaine not in an original, government-stamped package, a violation of 26 U.S.C. § 4704(a), and of knowingly purchasing cocaine that had been brought into the United States illegally, a violation of 21 U.S.C. § 174. He appealed that conviction to this court unsuccessfully, Defino Martone v. United States, 396 F.2d 229 (1st Cir.1968), and has since been serving concurrent seven-year prison terms. He now moves pursuant to 28 U.S.C. § 2255 to vacate his conviction. The district court denied the motion, and petitioner has appealed.1
The only evidence against petitioner was that he was discovered flushing cocaine down a toilet. The precise quantity of cocaine that petitioner had in his possession is unknown since he successfully disposed of all but a small amount which remained on the side of the toilet. At his trial, the fact that petitioner had some cocaine in his possession created certain evidentiary presumptions. Under 26 U.S.C. § 4704(a) possession of cocaine is "prima facie evidence" of purchase from a source other than the original, stamped package.2 Possession is sufficient evidence to authorize a jury to convict a defendant of knowingly purchasing illegally imported cocaine, under 21 U.S.C. § 174. Both of these presumptions operated at petitioner's trial. On the charge of violating 26 U.S.C. § 4704(a), the trial court charged, "if you find it has been shown beyond a reasonable doubt that the defendant was in possession of cocaine in approximately the quantity charged, however little or much that may be, this is in itself prima facie evidence of a violation of the subsection that was referred to. * * *" The court also charged on the 21 U.S.C. § 174 count that if it was proven that petitioner "has had in the past or has had it at the time possession of a narcotic drug * * * from the fact of possession it may be inferred that he had made a purchase of it contrary to the law."
Subsequent to petitioner's conviction becoming final, the Supreme Court decided the cases of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L. Ed.2d 57 (1969), and Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L. Ed.2d 610 (1970). The former case struck down, as a violation of due process, presumptions similar to the ones operating in petitioner's case, and Turner extended the Leary doctrine to evidentiary presumptions of the same two statutes under which petitioner was convicted, insofar as those presumptions are based on the possession of cocaine. The Court held that because some cocaine was made legally in the United States and was placed in...
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Mottram v. Murch, Civ. No. 11-138.
...California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Subilosky v. Moore, 443 F.2d 334 (1st Cir., 1971); Martone v. United States, 435 F.2d 609, 611 (1st Cir. 1970). In the body of his charge, the judge correctly and comprehensively instructed the jury that the State had the burden ......
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U.S. v. Martinez-Torres, MARTINEZ-TORRE
...rule of the circuit is futile, inasmuch as the trial court cannot overrule authority binding on it." Id.; accord Martone v. United States, 435 F.2d 609, 610-11 (1st Cir.1970). There was no binding rule in this circuit such as necessarily foredoomed an objection to magistrates' empaneling. A......
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United States v. Liguori, No. 350
...States v. Lopez, 414 F.2d 272 (2d Cir. 1969); United States v. Scott, 425 F.2d 55 (9th Cir. 1970 in banc); Martone v. United States, 435 F.2d 609 (1st Cir. 438 F.2d 666 II. In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Supreme Court held that the presumptio......
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U.S. v. Travers, No. 148
...would apparently have been futile. Compare United States v. Liguori, supra, 438 F.2d at 665, citing, inter alia, Martone v. United States, 435 F.2d 609 (1 Cir. 1970); see also United States v. Scott, 425 F.2d 55, 57-58 (9 Cir. 1974). The difficulty is that the same argument as to the futili......
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U.S. v. Martinez-Torres, MARTINEZ-TORRE
...rule of the circuit is futile, inasmuch as the trial court cannot overrule authority binding on it." Id.; accord Martone v. United States, 435 F.2d 609, 610-11 (1st Cir.1970). There was no binding rule in this circuit such as necessarily foredoomed an objection to magistrates' empaneling. A......
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U.S. v. Travers, No. 148
...would apparently have been futile. Compare United States v. Liguori, supra, 438 F.2d at 665, citing, inter alia, Martone v. United States, 435 F.2d 609 (1 Cir. 1970); see also United States v. Scott, 425 F.2d 55, 57-58 (9 Cir. 1974). The difficulty is that the same argument as to the futili......
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United States v. Liguori, No. 350
...States v. Lopez, 414 F.2d 272 (2d Cir. 1969); United States v. Scott, 425 F.2d 55 (9th Cir. 1970 in banc); Martone v. United States, 435 F.2d 609 (1st Cir. 438 F.2d 666 II. In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Supreme Court held that the presumptio......
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Mottram v. Murch, Civ. No. 11-138.
...California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Subilosky v. Moore, 443 F.2d 334 (1st Cir., 1971); Martone v. United States, 435 F.2d 609, 611 (1st Cir. 1970). In the body of his charge, the judge correctly and comprehensively instructed the jury that the State had the burden ......