United States v. Gregory

• Decision Date: 29 October 1962
• Docket Number: Docket 27533.,No. 41,41
• Citation: 309 F.2d 536
• Parties: UNITED STATES of America, Appellee, v. William P. GREGORY and Albert Sumpter, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

309 F.2d 536 (1962)

UNITED STATES of America, Appellee, v. William P. GREGORY and Albert Sumpter, Defendants-Appellants.

No. 41, Docket 27533.

United States Court of Appeals Second Circuit.

Argued October 3, 1962.

Decided October 29, 1962.

La Muriel Morris, New York City, for defendant-appellant William P. Gregory.

Joseph I. Stone and Rudolph L. Zalowitz, Elizabeth, N. J., for defendant-appellant Albert Sumpter.

Robert J. Geniesse, Asst. U. S. Atty., Southern District of New York, New York City (Vincent L. Broderick, U. S. Atty., and Arthur I. Rosett, Asst. U. S. Atty., on the brief), for appellee.

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

LUMBARD, Chief Judge.

William P. Gregory and Albert Sumpter appeal from their convictions by Judge Cashin, sitting without a jury, in the District Court for the Southern District of New York, for violation of the narcotics laws, 21 U.S.C. §§ 173, 174. Each appellant claims the evidence was insufficient to prove possession and to raise the statutory presumption of knowledge of illegal importation. Finding no merit in these contentions, we affirm.

The government presented evidence that at about 2:30 A.M. on December 5, 1961, Gregory drove himself and Sumpter in Gregory's 1961 Oldsmobile convertible to the Kimberly Hotel on West 74th Street in New York City. Gregory parked the car across the street from the hotel marquee which was lit. While being watched from a distance by several federal narcotics agents, Gregory got out of the car and entered the hotel, leaving Sumpter in the vehicle. Ten minutes later, Gregory came out of the hotel, carrying a brown paper bag. He reentered the car and, at the same time, the agents approached to make the arrest. One of the agents, Ward, was known to Sumpter,¹ and, when Ward came into view, the window on Sumpter's side of the car opened, an arm, holding the bag, slid "surreptitiously" out of the window, and the bag was dropped in the gutter.

The agents arrested Gregory and Sumpter, tested the contents of the bag disposed of through the window, finding heroin, and searched defendants and the automobile. No other bag was found.

There was ample evidence to sustain a finding that Gregory actually possessed the brown bag and carried it from the hotel to the car. Further, since no other bag was found at the scene, it was reasonable to infer that the bag Gregory carried was the same as the one containing heroin which was dropped from the car seconds later. Since the possession proved was reasonably related to the ultimate fact sought to be presumed — transportation of narcotics known to be unlawfully imported, United States v. Santore, 290 F.2d 51, 64, 79 (2 Cir., 1960) — the brevity of the possession is irrelevant. See United States v. Barrington, 291 F.2d 481 (2 Cir., 1961).

There was ample evidence that Sumpter held the bag and dropped it out of the car window into the gutter. Sumpter argues, however, that his possession, like that of Narducci in United States v. Santore, supra, did not involve that type of control from which it could reasonably be inferred "that the possessor was going to commit one or more of the specified acts which have been declared criminal." 290 F.2d at 64. We disagree.

We do not understand Judge Kaufman's suggestion that Sumpter might have disposed of the narcotics on Gregory's order without knowing what they were. Since the attempt to dispose of the narcotics was made in full view of agents Bailey and Carrozo, who were approaching the car from the rear, it is most reasonable to suppose that they had not been seen by the defendants and that the disposal was prompted by the sight of Ward and the recognition of him as a government agent. The window from which the package was dropped was hidden from Ward, who was approaching from in front of the car on the driver's side. So far as the record indicates, it was Sumpter who recognized Ward. Therefore, it is reasonable to suppose that unless Sumpter already had possession of the narcotics when he saw Ward and, acting independently, disposed of them, he knew what Gregory's package contained, and for that reason communicated the fact of Ward's presence to Gregory. The evidence is thus convincing that the attempt to dispose of the narcotics originated with Sumpter.

Narducci's possession, in the Santore case, supra, never became effective; before he had an opportunity to do anything with the narcotics, he relinquished his grasp, and the narcotics stayed where they were. Sumpter's possession, although also brief, was more complete. As indicated above, it is reasonable to infer from the evidence that he took possession for the purpose of attempting to conceal the narcotics and that he accomplished his purpose, although the attempt failed. The distinction is not, as our dissenting brother argues, merely between "putting back" and "throwing out," but rather between a grasp so fleeting that nothing is or is attempted to be accomplished and a possession which enables the possessor to do, for aught that appears, everything which he intended to do when he took possession. In these circumstances, we think the statutory presumption is applicable.

Affirmed.

KAUFMAN, Circuit Judge (concurring and dissenting).

I agree with my brothers in affirming the conviction of Gregory, but for the reasons I shall set forth I find it necessary to dissent from the affirmance of Sumpter's conviction.

I shall accept the evidence offered by the Government which may be summed up in this fashion. At approximately 2:30 of the morning in question, both defendants were in a car which pulled up opposite the Kimberly Hotel, at which Gregory had been living. Gregory was driving and Sumpter was seated next to him. Gregory entered the hotel and emerged approximately ten minutes later carrying a brown paper bag. Agents Ward and Ripa approached the car from the front. Sumpter knew Ward. He rolled down the right window and surreptitiously lowered a paper bag, apparently handed him by Gregory, and caused it to fall to the ground. It was agreed that Sumpter's participation lasted "only a matter of seconds."

Sumpter's case presents a difficult problem for me. Since there was no independent proof of his knowledge of the contents of the paper bag or of any conscious implication in a narcotics conspiracy, the problem we have to decide is whether the statutory presumption of 21 U.S.C. § 174¹ may be invoked merely upon proof of the momentary grasp of the bag and its lowering out of the car window. I do not challenge Judge Cashin's finding that such did in fact occur; my difficulty is with the legal conclusions he drew therefrom. Judge Cashin believed that Sumpter had possession of the narcotics long enough to invoke the statutory presumption.

That notorious irritant Mr. Narducci of United States v. Santore, 290 F.2d 51 (2d Cir., 1960), cert. denied 365 U.S. 834, 81 S.Ct. 745, 5 L.Ed.2d 743 (1961), seems naturally to provide the focus of our analysis. This Court, speaking of defendant Narducci, stated:

"In order to make the statutory presumption contained in that section meet the test of validity we must define `possession\' as used therein so as to include only that type of control from which it could not unreasonably be inferred that the possessor was going to commit one or more of the specified acts which have been declared criminal." (290 F.2d p. 64)

The statutory presumption is merely a rule of evidence which shifts the burden to the defendant of explaining his possession of the narcotics. It is usually reasonable to assume that one having possession of narcotics — in the sense of ability to control — knows that he has narcotics and knows that they were procured illegally....