United States v. Coke, No. 431

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: HAYS, ANDERSON and FEINBERG, Circuit
• Citation: 364 F.2d 484
• Decision Date: 18 July 1966
• Docket Number: Docket 29975.,No. 431
• Parties: UNITED STATES of America, Appellee, v. Simeon Jessamy COKE, Appellant.

364 F.2d 484 (1966)

UNITED STATES of America, Appellee,
v.
Simeon Jessamy COKE, Appellant.

No. 431, Docket 29975.

United States Court of Appeals Second Circuit.

Argued June 14, 1966.

Decided July 18, 1966.

Robert Kamenshine, New York City (Anthony F. Marra, New York City, on the brief), for appellant.

Daniel Donnelly, Asst. U. S. Atty., Southern Dist. of New York (Robert M. Morgenthau, U. S. Atty., and John A. Stichter, Asst. U. S. Atty., Southern Dist. of New York, on the brief), for appellee.

Before HAYS, ANDERSON and FEINBERG, Circuit Judges.

ANDERSON, Circuit Judge:

This appeal is from a judgment of conviction entered upon a jury verdict which found the appellant guilty on each of three counts of an indictment charging him with the sale and possession of cocaine hydrochloride in violation of 21 U.S.C. §§ 173 and 174. The appellant is before this court for the second time on appeal following an earlier reversal of his conviction and a remand for a new trial. United States v. Coke, 339 F.2d 183 (2d Cir. 1964).

The issue on this appeal is limited to the claim that the presumption in § 174 which authorizes the jury to infer the facts of illegal importation and knowledge thereof from the mere fact of possession, where the defendant has not explained the possession to the satisfaction of the jury, is unconstitutional where the narcotic drug found in his possession is cocaine hydrochloride. There was no proof by the Government at the trial which would tend to show that the cocaine hydrochloride possessed by Coke was illegally imported or that he had knowledge that it was illegally imported. The case went to the jury on those issues solely on the basis of the statutory presumption.

Erwing v. United States, 323 F.2d 674 (9th Cir. 1963), is apparently the first case in which this specific claim came before a court. In that case, the court applied the "rational connection" test of

364 F.2d 485

Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943) in evaluating the constitutional validity of the presumption as applied in a case where the narcotic drug was cocaine hydrochloride. Extensive expert testimony was introduced at the trial in Erwing to the effect that all of the cocaine hydrochloride dispensed in California in the area of Los Angeles came from domestic sources. The Court of Appeals concluded from this that there was no rational connection between the basic fact of possession and the presumed facts of illegal...