United States v. Campbell

• Decision Date: 14 October 1960
• Docket Number: No. 12903.,12903.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John CAMPBELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

282 F.2d 871 (1960)

UNITED STATES of America, Plaintiff-Appellee, v. John CAMPBELL, Defendant-Appellant.

No. 12903.

United States Court of Appeals Seventh Circuit.

October 14, 1960.

Julius Lucius Echeles, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before HASTINGS, Chief Judge, and DUFFY and CASTLE, Circuit Judges.

HASTINGS, Chief Judge.

Defendant John Campbell was charged with a violation of Title 21, U.S.C.A. § 174. It was alleged that he received, concealed and facilitated the importation of a narcotic drug previously imported into the United States contrary to law, knowing the same to have been unlawfully imported.

Following a trial by jury, defendant was found guilty and sentenced to a term of fifteen years and fined in the sum of $10,000 and costs.

Defendant's motions for mistrial, for acquittal and in arrest of judgment were denied. This appeal followed.

Defendant charges error on the part of the trial court in limiting his cross-examination and direct examination of certain witnesses and further charges prejudicial misconduct on the part of Government counsel in the examination of certain witnesses, including defendant.

Defendant does not challenge the sufficiency of the evidence to support the conviction. He does not now rely on the defense that he was "framed," that question having been resolved against him by the jury. There is no claim of entrapment.

A government witness, Endriz, a chemist, testified on direct examination that certain Government exhibits contained a high concentration of heroin of approximately 22%. Other than stating his duties and professional qualifications, his direct examination was limited to establishing that fact. Upon cross-examination, Endriz was asked:

"Q. Mr. Endriz, during this time you observed the contents of the 14 packages of the diacetyl morphine commonly known as heroin, could you make any determination or is there any test by which you could determine that the narcotics in question was sic illegally imported into the United States? A. No, sir."

Following the negative answer to this question, the trial court sustained a Government objection. No motion was made thereafter to strike the answer. The court then sustained Government objections to subsequent questions asking whether large quantities of opium are legally imported into the United States; whether pharmaceutical houses in the United States import large quantities of opium under government license; and whether there are pharmaceutical houses in the United States that manufacture morphine from opium imported into the United States. Subsequently, defendant was permitted to make Endriz his own witness, and he testified that he could not identify heroin by country of origin; that the opium poppy was introduced into the United States; that morphine used for medical purposes is obtained from opium; and that opium may come into the United States legally.

Defendant charges that he was thus prejudicially precluded from rebutting the statutory presumption of unlawful possession of the narcotic drug imposed under 21 U.S.C.A. § 174.¹

Defendant's claim of prejudicial error on this limitation is wholly without merit. The cross-examination was not within the scope of the direct examination. The witness testified he could not establish the country of origin of the narcotic drug by any test. The witness was a chemical expert, and the question of the legal importation of opium is not one of chemistry. Defendant later took the stand and attempted to explain his possession of the heroin. It is apparent that the jury did not believe him. We have examined the instructions given to the jury by the trial court; they fully and correctly cover the questions of possession and illegal importation.

The presumption statute has been construed by the courts in numerous cases. See, Roviaro v. United States, 1957, 353 U.S. 53, 63, 77 S.Ct. 623, 1 L.Ed.2d 639; United States v. White, 7 Cir., 1956, 228 F.2d 832; United States v. Chiarelli, 7 Cir., 1952, 192 F.2d 528, certiorari denied 342 U.S....