United States v. Davis, 354

• Decision Date: 05 March 1964
• Docket Number: Docket 28681.,No. 354,354
• Citation: 328 F.2d 864
• Parties: UNITED STATES of America, Appellee, v. James Rufus DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

328 F.2d 864 (1964)

UNITED STATES of America, Appellee, v. James Rufus DAVIS, Defendant-Appellant.

No. 354, Docket 28681.

United States Court of Appeals Second Circuit.

Argued February 14, 1964.

Decided March 5, 1964.

Leon B. Polsky, New York City (Anthony F. Marra, New York City), for appellant.

Martin R. Gold, New York City (Robert M. Morgenthau, U. S. Atty., for the Southern District of New York) (James M. Brachman, Asst. U. S. Atty.), for the United States of America.

Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge:

This was a typical narcotics prosecution for violating and conspiring to violate 21 U.S.C. §§ 173 and 174. The Government's evidence, presented through agent Broadnax and a surveilling agent, was to the following effect: Broadnax and an informant met one Ivey on W. 115th St. near Lenox Ave. about 12:30 P.M. on February 14, 1961. When Broadnax was represented to be interested in buying heroin, Ivey told him to go to the Regent Restaurant nearby to await Ivey's arrival. Ivey then went to a building at 114 W. 115th St. which he left in the company of appellant Davis and a female known as "Dot." The two groups met at the Regent Restaurant, where they sat on opposite sides of a horseshoe bar. After Ivey told Broadnax he had an ounce of heroin for sale for $175, Davis came over and asked Broadnax to enter the men's room. Davis there handed him a glassine envelope containing some 11½ grams of heroin and received the $175. On leaving the men's room Davis gave this to Ivey, who solicited further business from Broadnax and, in Davis' presence, wrote on a brown paper bag the address 114 W. 115th St., apartment 1-E, and the word "Dot." Ivey, Davis and Dot then left the restaurant and returned to 114 W. 115th St. Davis denied the entire story, except that he admitted being acquainted with Ivey and having been a frequent patron of the restaurant.

Davis' argument that his "possession" was insufficient to trigger the familiar provision in 21 U.S.C. § 174, whereby possession of narcotics "shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury," is insubstantial in view of the evidence of his furtive men's-room exchange of a glassine envelope containing white powder for the suspiciously high sum of $175. This was entirely sufficient to warrant the jury's finding that he knew the substance to be a narcotic, and it is hard to see how any possession could be more purposive than one incident to delivery and collection of the price. Cf. United States v. Barrington, 291 F.2d 481 (2 Cir. 1961). Beyond this the appeal is directed at several aspects of the charge — none of which, with one qualification noted below, was made the subject of exception, as F.R.Crim.Proc. 30 requires.

We start with the instructions as to the statutes. The judge first explained that 21 U.S.C. § 173 prohibits the importation of narcotics save under government regulations; in the course of doing this he said "Narcotics of this nature are not indigenous to this country. They must, of course, be brought in from some other country, and for that reason this particular section was passed by the Congress to prevent the importation of these narcotics except for legitimate purposes." This is claimed to have taken the issue of illegal importation from the jury. But the judge later told the jury on two occasions that in order to convict they must find precisely that. It is evident that the remarks now criticized, but not then objected to, were intended and taken merely as an explanation of the general background of the statute and not as a curtailment of the jury's freedom to decide on illegal importation — on which, in accordance with usual practice, no evidence was submitted by either side. We are asked also to find "plain error," F.R.Crim.Proc. 52 (b), in an instruction "that when narcotics are found in the possession of someone, unless they come forward and prove to you that something other than this particular state or condition exists, namely, that the narcotics are imported or there is other evidence in the case to indicate otherwise, then there is a difference, but until that happens the government has the right to rely on the presumption that in fact it was imported, and that the defendant knew that it was imported." This charge was far from ideal, and we cannot understand why, if it is deemed desirable to embroider on the clear language of the statute, a standard instruction conforming precisely to its interpretation in such cases as United States v. Mont, 306 F.2d 412, 416-17 (2 Cir.), cert. denied, 371 U.S. 935, 83 S.Ct. 310, 9 L.Ed.2d 272 (1962), and United States v. Evans, 312 F.2d 556 (2 Cir. 1963), is not prepared and followed. That would avoid appeals, like this one, on an aspect of the offense that is almost never litigated since the Government generally relies entirely on the proof of possession and the defendant denies he ever had it. However, in contrast to Evans, the judge here had earlier made the completely correct statement that "the possession of the narcotic gives you the right to infer that the narcotics were imported contrary to law, and further gives you a right to infer that the defendant, if you find that in fact he had possession, had knowledge of such unlawful importation"; and the challenged...