United States v. Hernandez

• Decision Date: 14 February 1961
• Docket Number: No. 181,Docket 25604.,181
• Citation: 290 F.2d 86
• Parties: UNITED STATES of America, Appellee, v. Ramon HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

290 F.2d 86 (1961)

UNITED STATES of America, Appellee, v. Ramon HERNANDEZ, Defendant-Appellant.

No. 181, Docket 25604.

United States Court of Appeals Second Circuit.

Petitions filed September 7, 8, 1960.

Decided February 14, 1961.

COPYRIGHT MATERIAL OMITTED

S. Hazard Gillespie, Jr., U. S. Atty., S.D.N.Y., and George I. Gordon and Kevin Thomas Duffy, Asst. U. S. Attys., New York City, for petitioner United States.

David F. Dobbins, New York City, for petitioner Ramon Hernandez.

Before CLARK, WATERMAN, and MOORE, Circuit Judges.

CLARK, Circuit Judge.

The United States and the defendant-appellant both petition for rehearing of our decision of August 24, 1960, 2 Cir., 282 F.2d 71, reversing defendant's conviction of violation of the narcotics laws and remanding the case for a new trial. Our decision was based on the trial court's refusal to inspect the minutes of the grand jury testimony of Agent Newkirk, the Government's principal witness at the trial. The Government asserts that the trial court was not required to make the requested inspection because the defense counsel did not first point out a possible inconsistency between trial and grand jury testimony. Alternatively it contends that the refusal to inspect constituted harmless error. In its cross-petition defendant-appellant seeks a clarification of the applicable rule regarding the presumption arising from possession of narcotics in a prosecution under 21 U.S.C. § 174. While we adhere to our decision we think a fuller explanation desirable and shall proceed to make it in discussing the points made by the respective petitioners.

The Government's petition. The prosecution asserts that this court failed to apply properly the rule stated in United States v. Zborowski, 2 Cir., 271 F.2d 661, 665, thus: "The rule is that when the defendant points out a possible inconsistency between the trial and the grand jury testimony of a government witness and requests the trial judge to examine the witness' grand jury minutes, the trial judge must then read the minutes in camera." And it contends that this rule requires an affirmative showing by the defendant of a possible inconsistency before the trial court may honor his request and inspect the minutes. But in that very case we held otherwise, as Circuit (now Chief) Judge Lumbard pointed out, 2 Cir., 271 F.2d 661, 666:

"Even if there were no showing of possible inconsistency in the testimony of a witness in a perjury case, or indeed in any case, where the testimony of such witness is the only direct evidence against the defendant and no valid reason for secrecy exists, the court should upon request examine the grand jury minutes of such a witness for possible inconsistencies. United States v. Spangelet, supra 2 Cir., 1958, 258 F.2d 338. The reason for the necessity of such a rule is obvious. See Jencks v. United States, 1957, 353 U.S. 657, 667-668, 77 S.Ct. 1007, 1 L.Ed.2d 1103; Pittsburgh Plate Glass Co. v. United States, 1959, 360 U.S. 395, 407-410, 79 S.Ct. 1237, 3 L.Ed.2d 1323 (dissenting opinion). Surely the defendant should have access to all conflicting testimony given under oath by the one direct witness who gives him the lie. It offends all sense of fairness to first require a showing of possible inconsistency preliminary to examination of the minutes by the trial judge."

The contrary is also made clear in our decision at the same time in United States v. McKeever, 2 Cir., 271 F.2d 669, 672, note 1, where we stated: "* * * the trial judge's examination of the minutes, without requiring a showing of possible inconsistency, was the proper and desirable course." Occasional dicta may appear to suggest lack of indicated inconsistencies as additional make-weights to decision, but we have never enforced such a self-defeating condition to destroy the usefulness of this important tool of cross-examination. For neither defendant nor his counsel has the grand jury minutes (indeed the request would not be made if they had them at hand); and to require a bill of particulars in support of the request when from the nature of the situation counsel cannot know such details is to deny the rule itself. That we have not done. United States v. Spangelet, 2 Cir., 258 F.2d 338, 342; United States v. Tomaiolo, 2 Cir., 280 F.2d 411; United States v. Giampa, 2 Cir., 1961, 290 F.2d 83.

The Government also argues that this court should make an independent study of the grand jury minutes to determine whether or not any inconsistencies exist. It argues that no inconsistencies of consequence will be found, and that the error below can then be dismissed as harmless error. We are referred to United States v. Kirby, 2 Cir., 273 F.2d 956, where the trial court failed to inspect the grand jury minutes and this court nevertheless affirmed the conviction. True, we there examined the minutes contained in the record on appeal and stated that we found no inconsistencies. But the ground of our decision was the defendant's abandonment of his demand for inspection after the Assistant United States Attorney said they were not available. And by so examining the minutes which had been unavailable at the time of trial, we did not purport to sanction a procedure whereby the trial court could refuse to inspect minutes which were at hand. Moreover, that was a case of trial to the court, as was the situation in the more recent case of United States v. Santore, 2 Cir., Oct. 2, 1959, 290 F.2d 51, where the appellate panel asked the trial court for a later review and report.¹ The proper time for inspection is at trial, when any inconsistencies discovered may be used for cross-examination. A complete failure by the trial court to inspect the minutes of grand jury testimony by the Government's major witness cannot be remedied by inspection by the appellate court, at least in a jury case, where the possible effect of a searching cross-examination cannot be appraised as perhaps it may be by a trial judge sitting alone. The doctrine of harmless error cannot be extended so far if the announced rule is to retain any vitality whatsoever. We deny the Government's petition for rehearing.

Petition of the defendant-appellant. The cross-petition seeks clarification of the question whether or not possession of narcotics by the alleged co-conspirators is sufficient to permit application to appellant of the presumption of guilt which 21 U.S.C. § 174 raises upon proof of possession. That important statute makes it a crime to receive, conceal, buy, or sell any narcotic drug which the defendant knows was illegally imported into the United States. It also punishes any person who, with knowledge of the illegal importation, conspires to commit the above crime or facilitates it. In United States v. Santore, 2 Cir., Nov. 16, 1960, 290 F.2d 51, a majority of this court on a rehearing in banc held that a defendant could be convicted for aiding and abetting, 18 U.S.C. § 2, the commission of the crime defined in 21 U.S.C. § 174. Since an aider and abettor must have the same knowledge and intent required of the principal, however, proof of knowledge of illegal importation is also necessary to a conviction for aiding and abetting. This is pointed out in the opinions of Judges Waterman and Friendly in the Santore case, supra.

Instead of proving the separate elements of 21 U.S.C. § 174, including knowledge of importation, the prosecution may take advantage of the statutory presumption stated in the statute thus: "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." Thus a person who facilitates, aids or abets, or conspires in violation of 21 U.S.C. § 174, and who can be shown to have had possession of the drug, can be convicted without independent proof of knowledge of illegal importation. The difficult problem presented in the present case is the meaning of "possession."

It is well established that possession can exist without physical contact so long as the defendant has dominion and control over the drug. United States v. Cox, 2 Cir., 277 F.2d 302, 303. Such dominion and control without physical custody has been termed "constructive," as opposed to actual, possession. Physical custody by an employee or agent whom one dominates, or whose actions one can control, is sufficient to constitute such constructive possession by the principal. United States v. Maroy, 7 Cir., 248 F.2d 663, certiorari denied 355 U.S. 931, 78 S.Ct. 412, 2 L.Ed.2d 414. Moreover, a person who is sufficiently associated with the persons having physical custody so that he is able, without difficulty, to cause the drug to be produced for a customer can also be found by a jury to have dominion and control over the drug, and therefore possession. Cellino v. United States, 9 Cir., 276 F.2d 941; United States v. Malfi, 3 Cir., 264 F.2d 147, certiorari denied Malfi v. United States, 361 U.S. 817, 80 S.Ct. 57, 4 L.Ed.2d 63; United States v. Moia, 2 Cir., 251 F.2d 255; cf. Gallegos v. United States, 10 Cir., 237 F.2d 694. On the other hand, the casual facilitator who knows that a given principal peddles narcotics, but who does not have a working relationship with that principal which would enable him to assure delivery, lacks dominion and control and does not have possession.

Possession, actual or constructive, must be shown with respect to each individual conspirator, facilitator, or aider and abettor. Possession by another defendant by itself is not sufficient. See United States v. Santore, supra, 2 Cir., Nov. 16, 1960, 290 F.2d 51, opinions by Judges Waterman and Friendly. It is true that three of the six members of the court in the Santore case held the contrary view that possession by a codefendant was sufficient to sustain conviction of an aider and abettor, even though the latter did...