United States v. Crespo, 456

• Decision Date: 25 February 1970
• Docket Number: No. 456,Docket 33451.,456
• Citation: 422 F.2d 718
• Parties: UNITED STATES of America, Appellee, v. Nelson CRESPO, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

422 F.2d 718 (1970)

UNITED STATES of America, Appellee, v. Nelson CRESPO, Appellant.

No. 456, Docket 33451.

United States Court of Appeals, Second Circuit.

Argued January 16, 1970.

Decided February 25, 1970.

Certiorari Denied May 18, 1970.

Jon A. Sale, James D. Zirin, Asst. U. S. Attys., Robert M. Morgenthau, U. S. Atty., for appellee.

Marilyn Elaine Meadors, Milton Adler. New York City, for appellant.

Before MEDINA, WATERMAN and SMITH, Circuit Judges.

Certiorari Denied May 18, 1970. See 90 S.Ct. 1716.

WATERMAN, Circuit Judge:

This is an appeal from a judgment of conviction, after a three-day jury trial in the United States District Court for the Southern District of New York, for the knowing receipt, concealment, transportation and sale of illegally imported heroin, in violation of 21 U.S.C. §§ 173, 174, and conspiracy to commit such acts.¹ The defendant, a second narcotics offender, was sentenced to concurrent ten year terms of imprisonment.

The facts follow the usual pattern in narcotics cases — Federal Bureau of Narcotics agent meets informant; informant arranges meeting with narcotics salesmen; agent negotiates buys; narcotics salesmen are arrested. There is no issue as to the sufficiency of the evidence. Appellant on appeal raises two points: (1) the Section 174 inferences, illegal importation of heroin and defendant's knowledge of that fact, are constitutionally impermissible, and (2) the court's instruction to the jury relating to the elements of importation and knowledge was worded in such a way as to render the statutory inferences, if constitutionally valid, conclusive presumptions. We confine our discussion to appellant's latter point inasmuch as the inferences authorized by § 174 with respect to heroin were recently upheld. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).

As part of the Government's case in chief, testimony was offered to establish the fact that a tinfoil package containing approximately 14.80 grams of heroin hydrochloride was found in appellant's pocket at the time of his arrest. Taking the stand in his own defense appellant denied he was in possession of the alleged narcotics at the time of his arrest. Thus, since the jury accepted the Government's version, as evidenced by the verdict, and no evidence was offered to explain defendant's possession of the drug, proof of at least two elements of the crime, the illegally imported character of the heroin and knowledge of such, must rest exclusively upon the statutory inferences.

The statute does not require the jury to convict once possession of the narcotic is established, even in a case where the evidence negates any doubt that the defendant lawfully or innocently possessed the drug. See, e. g., United States v. Peeples, 377 F.2d 205, 210-211 (2 Cir. 1967).

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. 21 U.S.C. § 174 (emphasis supplied).

If the defendant or the evidence from other sources² "explains the possession to the satisfaction of the jury,"³ it follows that the statutory inferences do not operate. On the other hand, if the defendant or the evidence viewed as a whole does not so "explain," the statute merely permits the jury to view the fact of possession of the narcotic (heroin) as evidence from which to infer the ultimate facts of illegal importation and knowledge. Section 174 does not operate as a displacement of the jury's duty to be convinced beyond a reasonable doubt that the ultimate facts are true before it can convict.

As pointed out in Turner v. United States, supra at 647, the jury may conclude that "* * * heroin is not produced in the United States and that any heroin possessed here must have originated abroad * * * based on its own store of knowledge, * * *." and infer therefrom that the defendant "* * * was equally well informed." Or, being uninformed as to the sources of heroin, the jury may reach the same conclusions "* * * reasoning that the statute represented an official determination by Congress that heroin is not a domestic product." The statute, therefore, provides the jury with a fact, a fact judicially noticed by the Court in Turner, that heroin is not a domestic product. "To possess heroin is to possess imported heroin." Id. at 652 (emphasis in original). The jury, as the sole judge of the facts, may, if it chooses, reject this legislative factfinding, as it may likewise reject any other evidence tending to establish any other fact sought to be proved in a criminal case. Coupled with the fact that the defendant had knowing possession of the heroin, the jury may infer that the heroin in question was illegally⁴ imported and that the defendant knew as much, for "* * * those who traffic in heroin will inevitably become aware that the produce they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled." Turner v. United States, supra at 653.

In a case of this sort, it is important for the trial judge carefully to instruct the jury as to the principles outlined above if the statutory inferences are relied upon to prove the elements to which they relate. Otherwise, a jury may be too easily lulled into a belief that the statutory inferences are conclusively binding upon them unless the defendant successfuly explains his possession by bringing out rebutting evidence.

We now turn to the charge challenged on this appeal. The trial court instructed the jury with reference to the substantive count:

As to the third and fourth essential elements of the government\'s proof, ladies and gentlemen, it will doubtless occur to you that the prosecution has not offered any direct evidence to establish illegal importation into this country of the substances referred to in the indictment or any direct evidence of either one of the two defendants\' knowledge that these substances were imported or brought into the United States contrary to law. However, another portion of Section 174 of the Code which I read to you a few moments ago comes into play here or may come into play depending on how you assess the facts.

This portion of Section 174 provides in relevant part that if during the course of the trial a 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 evidence explains the possession of that defendant to the satisfaction of the jury. Thus under the law proof of possession of narcotics gives rise to an inference that the narcotics were imported contrary to law and the further inference that the person who had possession of such narcotics knew of such illegal importation into this country.

In short, this means that you would be authorized to convict a defendant if there has not been any legitimate explanation of his possession of the narcotics or if there was an explanation which you disbelieve. In other words, if the government demonstrates beyond a reasonable doubt that a given defendant had possession of what is in fact a narcotic drug and there is no satisfactory explanation in the case of this possession, you would be entitled to infer that the narcotic in question was illegally imported and that the defendant shown to have possession thereof knew it was illegally imported.

On the other hand, if you find from the evidence that this inference is not justified, or, to put it in other words, that there is a satisfactory explanation, an innocent explanation, from the evidence, then you would be entitled not to draw this inference which the law provides.

The defense did not except to the above instruction and, therefore, is precluded from prevailing on appeal unless plain error can be shown....