Mason v. United States

• Decision Date: 01 November 1967
• Docket Number: No. 9420-9423.,9420-9423.
• Citation: 383 F.2d 107
• Parties: Hubert MASON, Appellant, v. UNITED STATES of America, Appellee. Charles Albert GARRETT, Jr., Appellant, v. UNITED STATES of America, Appellee. Samuel Lewis GLADNEY, Appellant, v. UNITED STATES of America, Appellee. Frank WILSON, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

383 F.2d 107 (1967)

Hubert MASON, Appellant, v. UNITED STATES of America, Appellee.

Charles Albert GARRETT, Jr., Appellant, v. UNITED STATES of America, Appellee.

Samuel Lewis GLADNEY, Appellant, v. UNITED STATES of America, Appellee.

Frank WILSON, Appellant, v. UNITED STATES of America, Appellee.

Nos. 9420-9423.

United States Court of Appeals Tenth Circuit.

October 13, 1967.

Rehearing Denied November 1, 1967.

William L. Rice, Denver, Colo., for appellant, Hubert Mason.

Virginia Malloy, Denver, Colo., for appellant, Charles Albert Garrett, Jr.

E. M. Heppenstall, Denver, Colo., for appellant, Samuel Lewis Gladney.

Barkley Clark, Denver, Colo., for appellant, Frank Wilson.

Milton C. Branch, Asst. U. S. Atty. (Lawrence M. Henry, U. S. Atty., on the brief), for appellee.

Before LEWIS and SETH, Circuit Judges, and BRATTON, District Judge.

Rehearing Denied in No. 9423 November 1, 1967.

SETH, Circuit Judge.

The four appellants were convicted by a jury of conspiring to knowingly import narcotics into the United States and to conceal, sell, and facilitate transportation of such narcotics with knowledge of illegal importation in violation of 21 U.S.C. § 174, and have taken this appeal.

The primary issues on appeal concern the sufficiency of the trial court's instructions to the jury, and the sufficiency of the evidence bearing on the essential elements of a conspiracy under 21 U.S.C. § 174.

Appellants contend that the court's instructions to the jury were erroneous because under 21 U.S.C. § 174 the court failed to instruct that the evidence must show that each defendant had knowledge that the narcotics were illegally imported, and that knowledge of one defendant could not be imputed to the other defendants. Section 174 creates a statutory presumption allowing the jury to convict upon proof that the defendants had possession of narcotics absent a satisfactory explanation of such possession. The statutory presumption relieves the Government of the burden of proving the defendants' actual knowledge of illegal importation. Appellants contend that the court mentioned the statutory presumption at the wrong place in the instructions; failed to give an adequate explanation of how the statutory presumption operates; failed to explain actual and constructive possession; and failed to explain that possession of one defendant could not be imputed to the other defendants.

Appellants also assert that their motions for acquittal should have been granted because the evidence was insufficient to prove that any defendant had knowledge of illegal importation or possession.

The following excerpts from the trial court's instructions on the point are material to the issues raised on appeal:

"* * * It is not necessary for the the Government to prove that all the means or methods set forth in the indictment were agreed upon to carry out the conspiracy or that all such means or methods were actually used. But, it is necessary that the evidence establish beyond a reasonable doubt that one or more of the means or methods described in the indictment was agreed upon to be used in an effort to affect or accomplish some object or purpose of the conspiracy as charged in the indictment. Now, one may become a member of a conspiracy without full knowledge of all of the details of the conspiracy. On the other hand, one who has no knowledge of a conspiracy in its object, but which who happens to act in a way which furthers the object or purpose of conspiracy, does not thereby become a conspirator. Before a jury may find that a defendant has become a member of a conspiracy, the evidence must show beyond a reasonable doubt that the conspiracy was formed and that the defendant who is claimed to have become a member, knowingly and wilfully participated in the unlawful plan with the intent to advance or further some object or purpose of the conspiracy.

"* * * I repeat once again that you must be convinced of existence of the conspiracy first. You must be convinced of the knowing participation by the individual conspirator, then and only then do the acts and statements of co-conspirators made during the continuation of the conspiracy — And by the way, acts made before would be binding upon the declarant and acts made after the termination of it — arrest usually terminates it. But, during the continuation of the conspiracy, conspirators are agents, one or the other, in effect. Their acts and statements are binding upon the other.

"* * * Now another section of the United States Code in effect forbids the wilful importation, transportation, sale, receipt or concealment of a narcotic drug in any way or manner except through legitimate medicinal purposes. Restricted importation, transportation and sale of narcotic drugs by a limited group, such as physicians and druggists, is permitted by law in order to provide a supply for use in alleviating pain and suffering. Otherwise, to import, to sell, to transport a narcotic drug is invalid, and possession of a narcotic drug imports knowledge of its illegal importation. Now, this possession can be actual or constructive, that is to say, possession doesn\'t mean that it has to be physical or actual possession. Possession can be constructive or through someone else if you

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