United States v. Harling
| Decision Date | 19 June 1972 |
| Docket Number | 23279.,No. 23054,23054 |
| Citation | 463 F.2d 923,150 US App. DC 87 |
| Parties | UNITED STATES of America v. Michael HARLING, Appellant. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Mr. James W. Respess, Washington, D. C., (appointed by this court), for appellant.
Mr. John S. Ransom, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee. Mr. Harold H. Titus, Jr., U. S. Atty., also entered an appearance for appellee.
Before BAZELON, Chief Judge, and McGOWAN and LEVENTHAL, Circuit Judges.
In this appeal we are called upon to determine the validity of the presumptions in two federal narcotics statutes1 in the context of a case where the direct evidence of appellant's involvement with narcotic drugs was severely limited in its scope.
An analysis of the relevant Supreme Court decisions in light of the unusual circumstances of this case leads us to reverse the convictions under both statutes.
On August 6, 1968, two men in an automobile delivered appellant, then nineteen years old, to the emergency ward of a hospital in the District of Columbia, informed an attendant that he was suffering from "too much drug," and left. Appellant was near death, and showed "no vital signs as regards respiration." Antidotes for heroin overdose were immediately administered by the doctor in charge, and appellant recovered. The doctor later testified that in the course of his treatment he was surprised to note that appellant "did not have the typical hardened veins and multiple puncture sites" characteristic of frequent narcotics users, and indeed could not find any puncture marks at all on appellant.
Shortly after appellant's admission to the emergency ward, several police officers arrived. The officers searched through his trousers, which had been placed on a nearby chair, in order to determine his identity; they found six packets of marijuana and three capsules of heroin. Appellant was subsequently indicted and tried under 21 U.S.C. § 174 and 26 U.S.C. § 4704(a). The Government's case consisted of the testimony as to the finding of the narcotics in appellant's possession, and the jury, after being instructed that it might infer guilt from the evidence of possession of narcotics, returned a verdict of guilty on both counts.
Appellant's testimony at the trial concerning the events preceding his delivery at the hospital was as follows: On the evening in question, he heard a party in progress in his vicinity and, although new to the neighborhood, went to the door and asked to join. He knew none of the people present, but was nevertheless invited in and offered some beer. Some time later, several youths offered him some marijuana cigarettes, which he accepted and smoked despite his alleged unfamiliarity with the nature of the substance. Still later, these same individuals asked appellant whether he would like to get "high all the way," and, although again allegedly ignorant of precisely what they were talking about, he assented because he "was just trying to make friends and everything." The last thing appellant remembered was someone injecting a needle into his arm. He denied any knowledge of the marijuana and heroin found in his trousers pockets. In short, appellant placed before the jury the picture of a naive youth whose simple request for companionship in a strange neighborhood led him unwittingly to dangerous experimentation with drugs.
While it may be that the jury was well within its province in discrediting appellant's version of what happened, the necessity remains for the Government to have adduced proof adequately supporting the jury's verdict. The questions before us are whether, on the prosecution's evidence, the jury could conclude beyond a reasonable doubt that appellant (1) knew, for the purpose of Section 174, that the drugs he possessed were illegally imported into the United States, and (2) purchased those drugs, as contemplated by Section 4704(a), rather than acquired them by gift, theft, or otherwise.
With respect to the first of these questions, the Supreme Court in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), struck down the presumption of knowledge of illegal importation that 21 U.S.C. § 176(a) applied to possessors of marijuana.2 The decision rests principally on two grounds, namely, (1) users of marijuana are by and large only occasional users, and (2) a substantial amount of marijuana is produced in the United States. Invoking the rule that a statutory presumption is constitutionally valid only if the fact presumed "is more likely than not" to follow from the facts proven, the Court concluded that under these circumstances it was irrational to infer that a possessor of marijuana must be taken as knowing that what he possessed was illegally imported.
In Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), however, the Court upheld the presumption of § 174, at least as applied in that case to an individual found in possession of 275 bags of heroin. The basis for this holding was that the amount of heroin either produced in the United States or stolen in the United States after legal importation is so negligible that it could be stated with assurance that "heroin possessed in this country is a smuggled drug." 396 U.S. at 416, 90 S.Ct. at 652. The Court conceded that the validity of the presumption that heroin found in the United States was legally imported does not necessarily mean that its possessor knew that it was illegally imported, but concluded that in the case of an individual found in possession of 275 bags (worth, at the Court's estimation, around $5.00 per bag) the jury could properly infer that he was a dealer, and that dealers know that the source of their merchandise is outside the country. What the Court did not resolve is the question now before us, i. e., the validity of the presumption where there is nothing to suggest that the defendant is more than an "occasional user," or, indeed, more than a one-time user.
Our reading of Turner leads us to the conclusion that the Court implicitly recognized that there may be some possessors of heroin against whom the presumption could not validly operate. In this regard, certain passages from Turner are instructive:
It may be that the ordinary jury would not always know that heroin illegally circulating in this country is not manufactured here. But Turner and others who sell or distribute heroin are in a class apart. Such people have regular contact with a drug which they know cannot be legally bought or sold; their livelihood depends on its availability; some of them have actually engaged in the smuggling process. The price, supply, and quality vary widely; the market fluctuates with the ability of smugglers to outwit customs and narcotics agents at home and abroad. The facts concerning heroin are available from many sources, frequently in the popular media. "Common sense" tells us that those who traffic in heroin will inevitably become aware that the product they deal in is smuggled, unless they practice a studied ignorance to which they are not entitled. (Emphasis supplied, footnotes and citations omitted.) 396 U.S. at 416-417, 90 S.Ct. at 652.
In a footnote, the Court added:
Such a conclusion is also justified with regard to those users and addicts who frequently purchase supplies of heroin on the retail market. Such persons are of course aware of the variations in price and availability of the drug and of the fact that the success of anti-smuggling efforts of law enforcement officials affects the supply of heroin on the market. (Emphasis added), 396 U.S. at 417, n. 33, 90 S.Ct. at 653.
The Court further noted that generally the presumption would not present a problem:
Though the federal narcotics laws are in terms applicable to most possessors of illicit drugs regardless of whether the possessor is a user or a dealer, the enforcement efforts of the Bureau of Narcotics and Dangerous Drugs are directed to the development of evidence against "major sources of supply, wholesale peddlers, interstate and international violators." (citations omitted) The undisputed evidence that Turner possessed 275 glassine bags of heroin clearly shows that Turner was more than a mere user of heroin and was engaged in the distribution of the drug. (Emphasis added). 396 U.S. 416-417, n. 30, 90 S.Ct. at 652.
These expressions, we think, quite clearly indicate that, in the Supreme Court's view, the presumption of § 174 would not be valid in cases where the Government has presented no evidence suggesting that the defendant was either a dealer in, or a frequent user of, heroin. That is the case before us.
In contrast to the 275 bags of heroin found in Turner's possession, appellant was found with three capsules, which retail roughly at one dollar each. Furthermore, the physician who treated ap...
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...to 1970 by 49 jurisdictions. W. Eldridge, Narcotics and the Law 35, 45, and Appendices A and B (1962). 49 United States v. Harling, 150 U.S.App. D.C. 87, 463 F.2d 923, 928 (1972). 50 See Br. 93: "Appellant therefore relies solely upon the common law principles enunciated above, which serve ......
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