United States v. Childs, 71-1629.

• Decision Date: 13 July 1972
• Docket Number: No. 71-1629.,71-1629.
• Citation: 463 F.2d 390
• Parties: UNITED STATES of America, Appellee, v. Harriott H. CHILDS, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

463 F.2d 390 (1972)

UNITED STATES of America, Appellee, v. Harriott H. CHILDS, Appellant.

No. 71-1629.

United States Court of Appeals, Fourth Circuit.

Argued May 11, 1972.

Decided July 13, 1972.

Robert T. Hall, Fairfax, Va., for appellant.

James J. Tansey, Atty., Department of Justice (Brian P. Gettings, U. S. Atty., on brief), for appellee.

Before CRAVEN and RUSSELL, Circuit Judges, and BLATT, District Judge.

DONALD RUSSELL, Circuit Judge.

The defendant was convicted under the Assimilative Crime Act¹ of knowing possession of marihuana with intent to distribute, in violation of Section 54-524.101(a) of the Code of Virginia (1950), as amended. The marihuana, carefully packed in a trunk in the form of bricks weighing about a half pound each, was shipped by airline from Los Angeles, California, to Washington National Airport in Arlington County, Virginia. After receipt of the trunk for shipment, the Air Freight supervisor in Los Angeles for some reason, not explained in the record on appeal, became suspicious and had the trunk opened. Inside, under a layer of mothballs, were discovered sixteen (16) marihuana bricks. The federal narcotic officers were advised of the discovery and, apparently with the approval of such officers, the shipment was forwarded to its destination to the Washington National Airport. The trunk was addressed to "Pamela Feldman". When the shipment arrived at the Washington National Airport, the defendant presented the airline with the claim bill for the trunk, and, after signing "Pamela Feldman" to the receipt therefor, was given possession of the trunk. When the trunk was placed in defendant's car, the officers, alerted by the information received from Los Angeles, arrested her and prosecution followed. Convicted, the defendant has appealed contending that the District Court erred (1) in not finding the statute under which she was convicted unconstitutional, (2) in not granting her motion for an acquittal on the grounds of insufficiency of evidence, and finally (3) in the instructions given the jury on the proof necessary to establish the element of intent to distribute.

It is not necessary to tarry long on the defendant's claim of invalidity of the statute under which she was indicted and convicted. She does not and could not assail for vagueness the substantive provision of Virginia statute which made it an offense to possess marihuana with intent to distribute. After establishing and defining the offense itself, the statute concluded with the following subsidiary provision on sufficiency of evidence:

"A conviction for a violation of this § 54-524.101(a) may be based solely upon evidence as to the quantity of any controlled drug or drugs unlawfully possessed."

It is this subsidiary provision on sufficiency of evidence against which the defendant directs her claim of unconstitutionality. The mere fact, however, that this subsidiary provision may be invalid for vagueness, as defendant contends (a conclusion on which we venture no opinion), would not render the earlier substantive section creating the crime itself unconstitutional.² The relevance of the subsidiary provision would attach merely to the issue whether the evidence adduced by the prosecution was sufficient to permit submission to the jury and to the correctness of the Court's jury instructions on what proof was required to support a finding of intent to distribute. We shall accordingly address ourselves to those issues.

The contention that her motion for acquittal should have been granted because of insufficiency of proof of intent to distribute is palpably without merit. Intent is not susceptible of direct proof;³ it must be proved by circumstances. The circumstances establishing such intent in a narcotic prosecuti...