Reyes v. United States, No. 15756

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: BARNES and HAMLEY, Circuit , and CLARK
• Parties: Theodulo Nava REYES, Appellant, v. UNITED STATES of America, Appellee. Federico PEREZ, Appellant, v. UNITED STATES of America, Appellee.
• Docket Number: 15851.,No. 15756
• Decision Date: 17 July 1958

258 F.2d 774 (1958)

Theodulo Nava REYES, Appellant,
v.
UNITED STATES of America, Appellee.
Federico PEREZ, Appellant,
v.
UNITED STATES of America, Appellee.

Nos. 15756, 15851.

United States Court of Appeals Ninth Circuit.

July 17, 1958.

258 F.2d 775

15756:

Louis S. Katz, San Diego, Cal., for appellant.

Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., William A. Seavey, San Diego, Cal., Lloyd F. Dunn, Asst. U. S. Attys., Los Angeles, Cal., for appellee.

258 F.2d 776

15851:

Irwin Gostin, San Diego, Cal., for appellant.

Before BARNES and HAMLEY, Circuit Judges, and CLARK, District Judge.

BARNES, Circuit Judge.

Each appellant was convicted of a violation of 18 U.S.C. § 1407. This statute became effective as of July 18, 1956.

I. The Statute

Because of the language used in that statute, and particularly in its preamble, we quote the entire section:

"§ 1407. Border crossings — narcotic addicts and violators.

"(a) In order further to give effect to the obligations of the United States pursuant to the Hague convention of 1912, proclaimed as a treaty on March 3, 1915 (38 Stat. 1912), and the limitation convention of 1931, proclaimed as a treaty on July 10, 1933 (48 Stat. 1571), and in order to facilitate more effective control of the international traffic in narcotic drugs, and to prevent the spread of drug addiction, no citizen of the United States who is addicted to or uses narcotic drugs, as defined in section 4731 of the Internal Revenue Code of 1954, as amended (except a person using such narcotic drugs as a result of sickness or accident or injury and to whom such narcotic drug is being furnished, prescribed, or administered in good faith by a duly licensed physician in attendance upon such person, in the course of his professional practice) or who has been convicted of a violation of any of the narcotic or marihuana laws of the United States, or of any State thereof, the penalty for which is imprisonment for more than one year, shall depart from or enter into or attempt to depart from or enter into the United States, unless such person registers, under such rules and regulations as may be prescribed by the Secretary of the Treasury with a customs official, agent, or employee at a point of entry or a border customs station. Unless otherwise prohibited by law or Federal regulation such customs official, agent, or employee shall issue a certificate to any such person departing from the United States; and such person shall, upon returning to the United States, surrender such certificate to the customs official, agent, or employee present at the port of entry or border customs station.

"(b) Whoever violates any of the provisions of this section shall be punished for each such violation by a fine of not more than $1,000 or imprisonment for not less than one nor more than three years, or both." Emphasis added.

Appeals from the convictions below lie here. 28 U.S.C. § 1291.

II. Facts

It was stipulated in the lower court that Reyes, a citizen of the United States, pleaded guilty on June 4, 1943, to a charge of possession of marijuana then proscribed by § 11160 (now § 11500) of the Health and Safety Code of the State of California. Reyes was charged with a felony, but sentenced to only sixty days in the County Jail. Reyes, subsequent to the passage of § 1407 of Title 18, never registered as a narcotic violator, nor did he apply for the "departure" certificate mentioned in said section. No such certificate was issued. On the morning of March 4, 1957 Reyes left the United States for Mexico and returned, entering the United States on that date without registering or otherwise complying with the statute.

At the trial three questions were asked Reyes — as to his knowledge of the law; whether he had an intent to violate it; and, whether or not he had seen any signs at the border requiring him to register. The United States Attorney objected that knowledge and intent were immaterial. The objections were sustained.

It was stipulated below that Perez, a United States citizen, did not at any

258 F.2d 777

time register or apply for a "departure" certificate, nor was any certificate issued. There was no evidence of the date when Perez left this country, but it was stipulated that with respect to his entry to the United States on April 28, 1957, Immigration Inspector Maxon would testify Perez told him "he had been convicted for `marks' (addiction) in Los Angeles in 1956;" that he had used narcotics that day in Mexico; that Maxon saw numerous apparent needle scars on Perez' arm; that when examined by flashlight the pupils of Perez' eyes did not react naturally; that in Maxon's opinion Perez was then under the influence of narcotics. It was stipulated a doctor would have testified Perez was under the influence of narcotics the day of his entry; Perez would have testified he was illiterate, could not read or write, and had no knowledge of § 1407 and no intent to violate it

On such stipulated facts the district court judge found each appellant guilty as charged.

III. The Assignments of Error

As to each defendant, error is charged — first, in the court's refusal to permit evidence of defendant's lack of knowledge of the statute and lack of intent to violate it; second, that the statute is unconstitutional because it is indefinite, arbitrary and capricious, and violates due process safeguards because (a) of its uncertainty, and (b) its restriction on a citizen's right to travel; and third, the statute is unconstitutional because it deprives affected persons of their privilege against self-incrimination.

As to Reyes alone, it was additionally urged that his two months sentence was not a conviction of a violation of a narcotic law, "the penalty for which is imprisonment for more than one year," as the statute requires.

IV. The Reyes Conviction Was Within the Statute

We first dispose of Reyes' individually claimed error. Former section 11160 of the California Health and Safety Code (now section 11500) made possession of marijuana a crime. Section 11712 of that same code made punishment for conviction of possession "imprisonment in the county jail for not more than one year, or in the state prison for not more than 10 years."

Thus the penalty for the crime of which Reyes was convicted was imprisonment for a period of time which could be either under or over one year. The court saw fit to fix the penalty as imprisonment for two months. It could have fixed the penalty as two years, or ten years. Either sentence could not have been attacked by Reyes as unlawful. The length of sentence was within the discretion of the trial court.

Section 1407 does not say that the section applies only if "the penalty imposed is imprisonment for more than one year." It says if "convicted of a violation * * * the penalty for which is imprisonment for more than one year." At the time of Reyes' conviction, he had been convicted of a violation the penalty for which was imprisonment for more than one year. That the Superior Court judge, at the time of sentence, saw fit to give Reyes a lesser sentence did not affect the fact of his conviction of a crime, the penalty for which was in excess of one year.¹

This point was carefully considered in the able opinion rendered by United States District Judge Carter in United States v. Eramdjian, D.C.S.D.Cal., 1957, 155 F.Supp. 914, 931.²

With his reasoning and conclusions we agree. Reyes was convicted of violation

258 F.2d 778

of a narcotic law, the penalty for which was imprisonment for more than a year

V. Constitutionality of the Statute

We next consider the alleged error that the statute is unconstitutional because indefinite, arbitrary and capricious, because it violates due process in requiring one by registration to incriminate himself, and because it interferes with his right to travel.

We are satisfied these arguments were adequately met and answered in the opinion in the Eramdjian case, to which we have heretofore referred. In disposing of these issues, we adopt such portion of that opinion as is quoted in the margin.³

258 F.2d 779

A proper consideration of the constitutional contentions focuses attention on the precise language of the indictments before us. In the Reyes indictment, No. 15756, the defendant is charged as a citizen and a convicted narcotic violator

258 F.2d 780

with returning to and entering the United States "without registering with a customs official * * * and without surrendering the certificate."

The Perez indictment, No. 15851, similarly charged, except that the defendant was brought within the statute by being identified as a citizen "who was then addicted to and used narcotic drugs."

Considering what is charged in the indictments, a further portion of Judge Carter's opinion in Eramdjian is pertinent:

"Thus each indictment charges `return to and enter into the United States * * * without registering * * * and without surrendering the certificate.\' When read without considering the regulations describing the registration, it might appear that the `registering\' referred to registration when leaving the United States. But when the regulation is taken into account it is clear that the `registering\' referred to is that required on returning to the United States." 155 F.Supp. 923.

Judge Carter then discusses the essentials of proof: (a) citizenship; (b) the defendant's return to and entering into the United States; (c) the lack of registration at the time of return and entry; (d) in violation cases, certified copies of a prior conviction; and in addiction and user cases, either admissions, evidence of present use, and/or expert testimony to support addiction or use. He concludes that the alleged incriminating registration slip is not used against the defendant — he is prosecuted for not registering and for not surrendering the certificate; he is not prosecuted for making the certificate or for any fact appearing therein.

The court continues in the...