United States v. Birmingham, No. 694-70 to 700-70.

• Decision Date: 16 February 1972
• Docket Number: No. 694-70 to 700-70.
• Citation: 454 F.2d 706
• Parties: UNITED STATES of America, Appellee, v. Roy Milton BIRMINGHAM et al., Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

454 F.2d 706 (1971)

UNITED STATES of America, Appellee, v. Roy Milton BIRMINGHAM et al., Appellants.

Nos. 694-70 to 700-70.

United States Court of Appeals, Tenth Circuit.

November 30, 1971.

Rehearing Denied February 16, 1972.

Ben F. Baker, Asst. U. S. Atty. (Nathan G. Graham, U. S. Atty., on the brief), for appellee.

David M. Thornton, Tulsa, Okl., for appellants.

Before HILL, McWILLIAMS and BARRETT, Circuit Judges.

McWILLIAMS, Circuit Judge.

The seven appellants in this consolidated appeal, along with four others, were jointly indicted in count one of a two count indictment with unlawfully conspiring to receive, conceal, buy, sell and facilitate the distribution of heroin after such had been imported into the United States contrary to law, with knowledge on the part of the named defendants of such unlawful importation, all in violation of 21 U.S.C. § 174. In count two of the indictment the defendants were charged with unlawfully conspiring to sell, barter, exchange and give away heroin not in pursuance of a written order written for that purpose as provided by 26 U.S.C. § 4705(a).

One of the present appellants, Roy Milton Birmingham, on rearraignment pleaded guilty to both counts and was sentenced to ten years on each count, with the sentences to run concurrently. Birmingham thereafter filed a notice of appeal and his position in this court is that his plea of guilty was improperly received by the trial court in that the trial court failed to comply with the mandatory provisions of Rule 11 of the Federal Rules of Criminal Procedure, citing McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). We agree.

In McCarthy, it was held that Rule 11 not only requires the trial judge before accepting a tendered plea of guilty to make inquiry as to the defendant's understanding of the nature of the charge and the consequences of the plea, but also requires the trial judge to satisfy himself that there is a factual basis for the plea. The record discloses that such inquiry was not made by the trial court in accepting Birmingham's plea of guilty. McCarthy also held that noncompliance with Rule 11 required that the defendant's plea of guilty be set aside and the case remanded for another hearing at which he would plead anew.

The rule of McCarthy was applied by us in United States v. Sanders, 10 Cir., 435 F.2d 1282 (1970), in a factual setting closely akin to the present one. Sanders, like Birmingham, was charged with a narcotics violation, and each was arraigned before the same trial judge within three months of each other. Coincidentally, Sanders, though not a party to this proceeding, was one of the eleven named in the indictment, and his name was mentioned by several of the witnesses in the trial of the instant case. In short, the arraignment proceedings in Sanders are the same as those that occurred when Birmingham pleaded guilty. In Sanders, we held that because the trial court failed to inquire as to whether the defendant understood the nature of the charge, the plea of guilty previously entered should be vacated and the defendant permitted to plead anew. Sanders dictates a similar result as concerns Birmingham's request that his plea of guilty be vacated and that he too be permitted to plead anew.

The other six appellants, namely, Jo Ann Chiles, John Lee Johnson, N. J. Johnson, Elmer Gene Manuel, Troy Newton, and Charlie Smith, pleaded not guilty and stood trial. Upon trial each was convicted by the jury on both counts of the indictment and all now seek reversal of the judgments and sentences imposed upon the verdicts thus returned. Grounds urged for reversal are: (1) the trial court's instruction regarding inferences to be drawn from unexplained possession of heroin was prejudically erroneous; (2) the evidence is legally insufficient to support the guilty verdicts returned by the jury; and (3) error by the trial court in denying motions filed by the defendants seeking disclosure of matters occurring before the grand jury, including an inspection of grand jury records and proceedings.

Instruction No. 11 given the jury provides that if the jury found from the evidence beyond a reasonable doubt that a defendant did have possession of heroin, the fact of such possession alone, unless otherwise explained to the satisfaction of the jury by evidence in the case, would permit the inference that the heroin in question was imported into the United States contrary to law and would permit the further inference that the defendant having such possession had knowledge that the heroin had been imported into the United States contrary to law. This instruction was based on the following language contained in 21 U.S.C. § 174:

"Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury."

In Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the United States Supreme Court upheld an instruction based on 21 U.S.C. § 174 which permitted the jury to infer knowledge of illegal importation from the unexplained possession of heroin. The court declared that permitting such an inference did not violate the defendant's right to be convicted only on a finding of guilt beyond a reasonable doubt and did not place impermissible pressure on him to testify in his own defense. In thus holding, the court noted that since little, if any, heroin is made in this country and that virtually all heroin consumed in the United States is illegally imported, § 174 is valid insofar as it permitted the jury in Turner to infer that the heroin possessed was a...