United States v. Febre

• Decision Date: 08 January 1970
• Docket Number: No. 329,Docket 33241.,329
• Citation: 425 F.2d 107
• Parties: UNITED STATES of America, Appellee, v. Ralph FEBRE, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

425 F.2d 107 (1970)

UNITED STATES of America, Appellee, v. Ralph FEBRE, Appellant.

No. 329, Docket 33241.

United States Court of Appeals Second Circuit.

Argued November 10, 1969.

Decided January 8, 1970.

Joseph J. Marcheso, New York City (David Wallenstein and Bauman & Marcheso, New York City, on the brief), for appellant.

Daniel J. Sullivan, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., and David A. Luttinger, Asst. U. S. Atty., New York City, on the brief), for appellee.

Before MOORE, KAUFMAN and HAYS, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

In order to convict a defendant for the concealment or transportation of illegally imported narcotics under 21 U.S.C. § 174, the government must prove that he knew the narcotics to be illegally imported. Since this subjective element of knowledge is often difficult to establish by direct evidence, the government generally relies upon the presumption contained in § 174, which provides that unexplained possession of narcotics shall be deemed sufficient evidence of knowledge of illegal importation. In this case we are called upon to resolve several questions concerning the employment of this presumption: whether the prosecution offered evidence of possession sufficient to invoke the presumption, whether the court properly instructed the jury on its consideration of the presumption, and, finally, whether the Constitution prohibits the application of the presumption in cases involving the transportation of heroin.

I. Facts

At approximately 9 o'clock on the evening of February 20, 1967, an unnamed informant employed by the Federal Bureau of Narcotics placed a telephone call to Joseph Pego.¹ Clarence Cook, a Special Agent of the Bureau, who had once previously purchased narcotics from Pego, monitored that call. The informant told Pego that Cook wished to purchase an ounce of heroin. Pego replied that he did not have this amount of heroin and would have to get it. He directed Cook and the informant to proceed to the informant's residence where he would telephone them when he had obtained the heroin.

Twenty minutes after he received the call, Pego left his residence in the Bronx and proceeded by taxi to the Bat Cave Bar in Manhattan. Pego arrived at the Bat Cave at 9:35, ordered a drink, and then walked to the back of the bar where he talked with a group of customers who were playing pool. At 10:15 appellant Ralph Febre entered the bar and talked briefly with Pego. After five minutes, Febre and Pego left the Bat Cave together and continued their conversation in Febre's car, which was parked in front of the bar. Just before 10:30, Pego returned to the bar alone, then immediately telephoned the informant to tell him that "he had the stuff" and would deliver it to Cook at the corner of 170th Street and Jerome Avenue in half an hour. Pego then returned to the car and drove off with Febre, who dropped him at the corner where the sale was to occur. When Cook arrived, Pego gave him an ounce of heroin and received in return $50 Cook owed for a previous purchase and $1200 of the $1400 price of the ounce.

Agent Cook arranged to pay the remaining $200 to Pego on February 23, 1967 at the corner of 57th Street and 9th Avenue. Pego was driven to the meeting place by Febre, to whom he handed a "wad of money" after he had received payment from Cook. This series of events formed the basis of count two of the indictment, the first substantive offense with which Febre was charged.²

Cook and Pego met once again at the corner of 170th Street and Jerome Avenue on the evening of March 8. At this time Cook complained about the quality of the heroin he had purchased, and after discussion, it was agreed that Pego would provide Cook with a sample before Cook made further purchases and that this sample would be delivered later that evening. Pego proceeded to 1551 Walton Avenue where he entered Apartment 5B, the residence of Ralph Febre's brother Joseph. Five minutes later he was observed leaving the building in the company of Ralph Febre. He then left Febre and delivered the sample to Cook himself.

Cook apparently considered the sample satisfactory for five days later he negotiated with Pego for the purchase of a quarter kilogram of heroin. Pego set the price at $8700 and promised to deliver the "quarter" within forty-five minutes. After a visit to Apartment 5B at 1551 Walton Avenue Pego returned to the place where Cook was waiting to inform him that there would be a delay. Pego then returned to 1551 Walton Avenue. Two hours later Ralph Febre also entered the building. After fifteen minutes, Pego emerged, returned to Cook, and told Cook that "his people were unable to get the half a kilogram from which Cook's "quarter" was to come and to see him in a couple of weeks." Count three of the indictment arose out of these facts.

Cook did see Pego again three weeks later. On this occasion, April 4, 1967, it was agreed that on the following evening Pego would provide Cook with the quarter kilogram of heroin he had previously been unable to obtain. The next evening, after directing Cook to await delivery at the Port Authority Bus Terminal at 178th Street and Broadway, Pego joined Febre and one Edward Bless, named as a defendant in Count Four, at the Bat Cave Bar. After ascertaining that Pego had seen Cook, Febre asked, "What does he want?" When Pego replied "a quarter" Febre turned to Bless and asked "if he could handle it." Bless said that he could and that it would take about forty-five minutes. A few minutes later he left the bar. After Bless' departure, Febre and Pego continued their conversation which centered on experiences in the Armed Forces. At one point in the conversation, however, Febre remarked, "Things were going to be much better now that Willy was dead because Eddie was a much better guy to get along with."

One hour after he had left the bar, Bless returned and told his colleagues, "It can't be done tonight. It has to be tomorrow." Although Febre seemed to object to this statement, Bless apparently prevailed, and the sale did not occur until the next afternoon, April 6. These events gave rise to the fourth count of the indictment.

Pego was arrested as he transferred the quarter kilogram of heroin to Cook on April 6. Subsequently both Bless and Febre were also arrested. On November 1, 1968, following a five-day trial before Judge Metzner and a jury Febre was convicted of the substantive crimes set forth in counts two through four of the indictment and also for conspiring with Pego and Bless to violate § 174, the charge contained in Count Five of the indictment.³ Judge Metzner sentenced him to four concurrent six-year sentences.

II. Possession

Febre concedes that the evidence presented by the government sufficed to prove that he had facilitated the transportation of heroin. However, he contends that the prosecution failed to show that he knew this heroin to have been illegally imported, an essential element of the crimes for which he was charged and convicted. Admittedly, there was no direct evidence of knowledge of illegal importation. But Febre also claims that the government's proof failed to show that he ever "possessed" the heroin, and accordingly that the statutory presumption of knowledge of illegal importation was inapplicable.

Although the law is established that the "possession" required to invoke the presumption need not be actual physical custody of narcotics, we believe it appropriate to begin our analysis with a consideration whether the jury could properly have found that Febre physically possessed the heroin involved in the charges against him. Viewing the evidence in a light most favorable to the government, as we are required to do on this appeal from the conviction, we conclude that the evidence on count two supports an inference that Febre actually possessed the heroin Pego sold to Cook on February 20, 1967.⁴ We recall that on February 20 Cook made known his desire to purchase an ounce of heroin. At the time Cook made this request, Pego stated that he did not have the heroin and would telephone Cook as soon as he obtained it. Pego then spent approximately thirty minutes at the Bat Cave Bar talking with several patrons. At no time during this period did he attempt to contact Cook. However, the evidence reveals that as soon as he had finished speaking with Febre, who had arrived at the bar in his own car and in which he was the sole occupant, Pego immediately informed Cook that he now had the "stuff." Febre and Pego then proceeded to the place where the sale occurred in Febre's car. Pego's entire course of conduct on this occasion leads one to the reasonable conclusion that he had arranged to have the narcotics requested by Cook delivered to the Bat Cave Bar. The jury could also fairly and reasonably have concluded that Febre had personally delivered the ounce of heroin to Pego and accordingly, had actually possessed it.

On counts three and four, however, the evidence of actual possession was far weaker, indeed almost nonexistent. The only heroin involved in the transaction which gave rise to count three was the small sample, a quantity of little more than one gram, which Pego delivered to Cook on the evening of March 8. Febre's only and tenuous connection with this sample was that he was seen emerging from an apartment building with Pego when Pego was on his way to deliver the sample to Cook. Since his entry into the apartment building apparently preceded that of Pego (Febre was not seen entering), Febre could not be charged with personally having transported the sample to the apartment at Pego's request. Even if the jury had concluded that Febre and Pego had been in the same apartment, it had no way of knowing whether Febre actually handed the sample over to Pego, whether someone else who may have been in the apartment did so, whether Pego obtained the sample himself from a stock of heroin he knew to be in the apartment or...