United States v. Allen

• Decision Date: 12 April 1972
• Docket Number: No. 71-1193.,71-1193.
• Citation: 457 F.2d 1361
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry Earl ALLEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

457 F.2d 1361 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Earl ALLEN, Defendant-Appellant.

No. 71-1193.

United States Court of Appeals, Ninth Circuit.

April 12, 1972.

Thomas R. Owens (argued), Oakland, Cal., for appellant.

Michael L. Morehouse, Asst. U. S. Atty. (argued), Charles H. Turner, Asst. U. S. Atty., Portland, Or., for appellee.

Before WRIGHT and CHOY, Circuit Judges, and CROCKER,^* District Judge.

CROCKER, District Judge:

On May 12, 1970, appellant was convicted by jury trial of two counts for violation of Title 21 U.S.C. § 174 (receiving, concealing and facilitating transportation and concealment of a narcotic drug, to wit: heroin), and two counts for violation of Title 21 U.S.C. § 4704(a) (purchasing a narcotic drug, to wit: heroin). He was sentenced to six years on each of the four counts, said sentences to run concurrently.

On appeal, we are asked to determine first, whether the judge in charging the jury as to the statutory inferences contained in § 174 committed prejudicial error when he allegedly took judicial notice of an "official investigation" report concerning importation of heroin; secondly, whether error was committed when ruling that appellant's veracity as a witness could be impeached by the introduction of a prior felony conviction which was pending an appeal.

Appellant contends that the court in charging the jury took judicial notice of an "official investigation" which in essence concludes that possession of heroin in the United States implies illegal importation because heroin is not made or the derivatives grown here. Consequently, this violated Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L. Ed.2d 610 (1970), which states that the § 174 inference (guilt by possession) is a rebuttable presumption—not conclusive.

A reading of the instruction given shows that no judicial notice was taken by the trial court.¹ Although the instruction makes reference to an "official investigation" the question of importation was not taken from the jury as appellant contends. Instead, the judge clearly charged that the jury could either accept or reject the inference.

United States v. Crespo, 422 F.2d 718, at 721 (2d Cir. 1970), cert. denied 398 U.S. 914, 90 S.Ct. 1716, 26 L.Ed.2d 77, sets out the applicable standard when dealing with inferences:

"To avoid any misunderstanding on the jury\'s part that it is somehow bound by the statutorily prescribed inferences unless they hear countervailing evidence, the wiser practice is to spell out expressly that the jury is not only authorized to infer the elements in question but is authorized also not to infer such elements."

Appellant argues that the recent Ninth Circuit case of United States v. Bagby, 451 F.2d 920 (1971), rejected the Crespo rationale when this court overturned a § 174 conviction due to the trial judge's instruction concerning "the legislative fact-finding on which the § 174 presumption rests." (Bagby, at page 928).

Bagby is distinguishable from the case at hand. Our main reason for reversal in Bagby is set out at page 927:

"Finally, we find the instructions so confusing and so clearly erroneous as to amount to plain error under Rule 52(b), F.R.Crim.P."

No such confusion exists in this case.

Appellant's reliance on Bagby is misplaced. It was there said:

"The court may not instruct the jury that all heroin is imported. Any discussion of the likelihood that the heroin involved was imported should make it clear that the court is only stating reasons why the inference is a reasonable one, but that the jury is still free not to draw the inference. Cf. Turner v. United States, supra, 396 U.S. at 406, 90 S.Ct. 642." Bagby at 929.

The instruction here complained of was clear in that it did not take from the jury the right to make the ultimate determination whether or not the drug was imported. The jury was not required, as in Bagby, to draw any inference, but only permitted to. And, as suggested in Bagby, the court did make it clear (by referring to recent official investigations) why the inference is a reasonable one.

Finally, appellant argues that it was error for the district court to rule that he would admit evidence of appellant's prior felony conviction, which was pending on appeal, if he took the stand and testified.

It is the majority view and the law in this circuit that until the judgment of the lower court is reversed, the conviction will stand and the defendant may be questioned regarding that conviction for purposes of impeachment. United States v. Griffin, 434 F.2d 978 (9th Cir. 1971), cert. denied Sub Nom. Andrews v. United States, 402 U.S. 995, 91 S.Ct. 2170, 29 L.Ed. 160 (1971); Bloch v. United States, 226 F.2d 185 (9th Cir. 1955), cert. denied 350 U.S. 948, 76 S.Ct. 323, 100 L.Ed. 826 (1956); United...