Pierriero v. United States

• Citation: 271 F. 912
• Decision Date: 04 February 1921
• Docket Number: 1861.
• Parties: PIERRIERO v. UNITED STATES.
• Court: U.S. Court of Appeals — Fourth Circuit

271 F. 912

PIERRIERO v. UNITED STATES.

No. 1861.

United States Court of Appeals, Fourth Circuit.

February 4, 1921

J. S Barron, of Norfolk, Va., for plaintiff in error.

Hiram M. Smith, Sp. Asst. U.S. Atty., of Richmond, Va.

Before KNAPP and WOODS, Circuit Judges, and WEBB, District Judge.

KNAPP Circuit Judge.

Plaintiff in error, herein called defendant, was convicted of a violation of section 1 of the Harrison Narcotic Act, as amended by section 1006 of the Revenue Act of 1918 (Comp. St. Ann. Supp. 1919, Sec. 6287g).

Defendant is an engineer, and at the time of his arrest was employed by the United Dredging Company. He had leased the premises known as Nos. 215 and 217 Court street, Norfolk, Va., but had rented No. 215 to one John Corey, who in turn had sublet certain rooms to men named Price and Meeks. Meeks was jointly indicted with defendant, but as to him the indictment was nolle prossed. Pierriero lived in an upstairs front room of No. 217, renting other rooms in that house to different men. There was a connecting door on the ground floor between No 215 and No. 217, and defendant stated that the room occupied by him was always unlocked and open to any one who desired to enter.

Revenue officers testified that on March 16, 1920, between 6:30 and 6:45 p.m., they saw defendant, carrying a black handbag, come from the rear up a narrow alley which ran alongside No. 215 and enter that house by a side door. These officers were standing on the opposite side of Court street some 80 feet distant. An hour or two later, with the aid of certain policemen, they raided the premises, arrested Pierriero in his room, and took possession of an unlocked handbag, which was discovered protruding from a closet, and which was similar in appearance to the one that defendant was seen carrying. In the handbag was found a large quantity of unstamped cocaine and gum opium, of the estimated value of $60,000 or more, at prices said to be paid by addicts. One of the officers, unknown to defendant, secured a bunch of keys which the latter had taken from his belt. When these keys were shown him at the trial, he said they belonged to his wife, who had left them when she went to New York, and pointed out one which he declared he had not seen before, and which was found to fit the lock on the handbag. He had previously stated that his keys were in the possession of his brother-in-law. He also said that the handbag did not belong to him, that he had never seen it before, and that he did not know it was in his room.

The amended section under which defendant was indicted imposes a tax on certain named drugs, to be represented by appropriate stamps so affixed to the container as to securely seal the same, and provides:

'It shall be unlawful for any person to purchase, sell, dispense, or distribute any of the aforesaid drugs except in the original stamped package or from the original stamped package; and the absence of appropriate tax paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this section by the person in whose possession same may be found.'

1. It is contended that defendant was wrongfully convicted because the government attempted to prove nothing more than possession, and possession cannot of itself be made a crime. United States v. Jin Fuey Moy, 241 U.S. 394, 36 Sup.Ct. 658, 60 L.Ed. 1061, Ann. Cas. 1917D, 854. But beyond doubt possession may be made prima facie evidence of some other offense, and the courts have frequently so held. Luria v. United States, 231 U.S. 9, 25, 34 Sup.Ct. 10, 58 L.Ed. 101; Gee Woe v. United States, 250 F. 428, 162 C.

C.A. 498; Baender v. United States, 260 F. 832, 171 C.C.A. 558; Dean v. United States (C.C.A.) 266 F. 694. The last-named case arose under the statute here involved and is directly in point.

2. It is also contended that to convict under the amended section it must be alleged and proved 'that the accused is one of those persons required to register and pay the special tax,' even if untaxed and unstamped drugs be found in his possession. We are not of that opinion. The clause above quoted includes, not only those who purchase, but also those who sell and dispense, and the latter are specifically required to register and pay the special tax. Therefore an indictment in the language of the statute, charging that defendant 'did sell, dispense and distribute,' as in this case, alleges by necessary implication that he is within the class required to register. And if there be proof that unstamped drugs were found in his possession, the clause in question creates the presumption that he has violated the amended section. The burden is then upon him to show that he is not in the class required to register, and that his possession was not unlawful, as was held to be the case in United States v. Wilson (D.C.) 225 F. 82.

3. Exception is taken to following instruction to the jury:

'The court charges you that if you believe from the evidence that the inhibited article mentioned in the indictment not in the original stamped package, or from the original stamped package, without appropriate tax-paid stamps thereon, was in the possession of the defendant-- that is to say, in a place in the room occupied by him in his residence and place of business-- then such possession constitutes prima facie evidence of the purchase, sale, dispensing, and distribution of the drugs in question by the accused, as charged in the indictment, and would warrant his conviction of the offense charged.'

The contention here is that the facts recited in this instruction, 'that is to say, in a place in the room occupied by him in his residence and place of business,' were in effect held to establish defendant's possession of the unstamped drugs as matter of law, and thus to virtually direct a verdict of guilty. Whether or not the defendant was in possession of the handbag found in his room was of course the principal matter in dispute, and if nothing else had been said to the jury on the subject of possession a somewhat serious question would be presented. But immediately following the paragraph quoted the learned judge further said:

'In determining whether the drugs in question, not from the original package and in the unstamped condition in question were found in the possession of the defendant, you should take into account all the facts and circumstances in the case including the fact, if such you believe to be true, that persons other than the accused had access to the room in which the drugs were found and give such consideration thereto as you think the circumstances warrant. * * *

'The court further charges you that you must consider this question in the light of all the facts and circumstances detailed to you and the reasonable and fair inferences to be drawn therefrom. You should take into account the manner and deportment of the witnesses when on the stand, their interest, if any, to give or withhold the truth, the reasonableness or unreasonableness of the explanation made of the possession of the drugs, as well at the time of the search of the premises and finding of the drugs as that made upon the witness stand, and if, upon the whole testimony, you are satisfied that the drugs found belong to the

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