United States v. Holman

• Decision Date: 08 December 1970
• Docket Number: No. 23282.,23282.
• Citation: 436 F.2d 863
• Parties: UNITED STATES of America, Appellee, v. Juan Conrad HOLMAN, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

436 F.2d 863 (1970)

UNITED STATES of America, Appellee, v. Juan Conrad HOLMAN, Appellant.

No. 23282.

United States Court of Appeals, Ninth Circuit.

December 8, 1970.

COPYRIGHT MATERIAL OMITTED

Neil A. Ray, of Cary, Durning, Prince & Smith, Seattle, Wash., for appellant.

Robert L. Meyer, U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief, Criminal Division, Edward J. Wallin, Asst. U.S. Atty., Los Angeles, Cal., for appellee.

Before MERRILL, KOELSCH and CARTER, Circuit Judges.

JAMES M. CARTER, Circuit Judge.

Appellant was convicted in a non-jury trial of ten counts charging violations of federal narcotics and marihuana laws and sentenced to eight years on each count to run concurrently. The issues on appeal are (1) the constitutional validity of the statutes on which the convictions were based, and (2) whether appellant was denied effective representation by counsel. We hold that the convictions are valid on six counts and invalid on three counts. As a matter of judicial convenience, we decline to pass on the validity of the conviction on one count. We hold that appellant was not denied effective representation by counsel.

I.

The Constitutionality of the Statutes.

The facts are set forth in detail in part II. Suffice it to state here that appellant engaged in two transactions wherein a narcotic agent and an informer met with him, and the agent, in the presence of the informer, purchased marihuana, heroin and cocaine. No tax stamps existed on any of the contraband, and no order forms were supplied by the agent to the appellant.

Appellant was charged in twelve counts. Counts 9 and 10 were dismissed. Appellant was convicted on the remaining counts.

Counts 1 and 2 charged appellant with concealing and selling heroin in violation of 21 U.S.C.A. § 174. The elements of these offenses are that appellant (1) knowingly concealed or sold heroin, (2) which was illegally imported, and (3) which he knew was illegally imported. Here, the Government proved the first element. Appellant concedes that the statutory inference of § 174 of the latter two elements from possession is constitutional in case of heroin. Turner v. United States (1970) 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610. The convictions under counts 1 and 2 are affirmed.

Count 3 charged that appellant transferred heroin and count 11 that he transferred cocaine without obtaining a written order form in violation of 26 U. S.C.A. § 4705(a). Count 7 charged that appellant transferred marihuana without obtaining a written order form in violation of 26 U.S.C.A. § 4742(a). Neither § 4705(a) nor § 4742(a) deprived appellant of his Fifth Amendment privilege against self-incrimination. Minor v. United States (1969) 396 U.S. 87, 90 S. Ct. 284, 24 L.Ed.2d 283. The convictions under counts 3, 7 and 11 are affirmed.

Count 4 charged that appellant violated 26 U.S.C.A. § 4704(a). This section makes it unlawful (1) to purchase, sell, dispense, or distribute narcotic drugs (2) except in the original stamped package or from the original stamped package. The section provides that absence of the appropriate tax stamps shall be prima facie evidence of a violation by a person in whose possession the narcotic drugs are found. In Turner v. United States, supra, 396 U.S. pp. 420-421, 90 S.Ct. 642 the Supreme Court, in the face of a constitutional challenge, held the evidence of distributing heroin, not in or from a stamped package was sufficient, and affirmed a conviction for violation of § 4704(a). It also held that the instruction to the jury on the statutory presumption was harmless. Here, the evidence that appellant sold heroin not in or from the original stamped package was sufficient. The conviction under count 4 is affirmed.

Count 12 charged appellant with selling and distributing cocaine not in or from its original stamped package in volation of § 4704(a). In Turner v. United States, supra, the defendant was charged in count 4 with purchasing, possessing, dispensing and distributing cocaine not in or from the original stamped package in violation of 26 U.S. C.A. § 4704(a). Only possession was proved. The presumption that a violation could be based on possession became critical p. 423 and the conviction on count 4 was reversed.

In the instant case as to count 12, appellant was charged with selling and distributing cocaine, and the government proof showed he did. But appellant denied the transaction ever occurred. Since the trial judge did not have the benefit of Turner, it is not surprising that the record does not clearly show he did not rely on the presumption. Had he so indicated we would have no problem. In view of the fact this opinion affirms convictions with sentences concurrent with that under count 12, as a matter of judicial convenience we exercise our discretion not to pass on the validity of count 12. Hirabayashi v. United States (1943) 320 U.S. 81, 105, 63 S.Ct. 1375, 87 L.Ed. 1774.

Appellant also attacks his convictions under § 4704(a) on the ground that the penalties imposed by 26 U.S.C. A. § 7237(a) constitute cruel and unusual punishment, proscribed by the Eighth Amendment. "Appellate courts have no control over a sentence which is within statutory limits. * * * If, however, the sentence prescribed by statute is cruel and unusual within the meaning of the Eighth Amendment, the statute itself is unconstitutional and any sentence imposed thereunder must be set aside." Gallego v. United States (9 Cir. 1960) 276 F.2d 914, 918. The test is whether the penalty is "so out of proportion to the crime committed that it shocks a balanced sense of justice." Id. p. 918; Halprin v. United States (9 Cir. 1961) 295 F.2d 458, 460. The sentence under § 7237(a) for violating § 4704(a) does not shock our sense of justice, which we assume is balanced.

Appellant compares the punishment under § 7237(a) for a violation of 26 U. S.C.A. § 4704(a) and the punishment for purchasing, receiving or possession of tobacco without proper stamps in violation of 26 U.S.C.A. § 5751(a), which is imprisonment for no more than one year and a fine of no more than $1000 under 26 U.S.C.A. § 5762(b). The acts proscribed may be similar, but the circumstances to which those acts relate are sufficiently distinguishable in social effect to justify different treatments by Congress.

Appellant also contends that the penalties for violating § 4704(a), added as part of a "shotgun approach" to those under the "basic offenses," constitute cruel and unusual punishment. We agree with the other circuits that have rejected similar arguments in cases in which there were longer sentences than here. The Eighth Circuit held that a sentence of 25 years imposed on violations of two counts of § 4704(a) and two counts of § 4705(a) was not cruel and unusual punishment. McWilliams v. United States (8 Cir. 1968) 394 F.2d 41, 48, cert. denied (1969) 393 U.S. 1044, 89 S.Ct. 643, 21 L.Ed.2d 593. The District of Columbia Circuit held that a ten year sentence for violating § 4704(a) and § 174 was not cruel and unusual punishment. Hutcherson v. United States (D.C. Cir. 1965) 345 F.2d 964, 967, cert. denied (1965) 382 U.S. 894, 86 S.Ct. 188, 15 L. Ed.2d 151. See also Hawkins v. United States (D.C.Cir. 1969) 288 F.2d 122.

Counts 5 and 6 charged appellant with concealing and selling marihuana in violation of 21 U.S.C.A. § 176a. The government concedes the infirmity of the convictions on these counts under Leary v. United States (1969) 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57. Without further inquiry, we reverse the convictions on counts 5 and 6.

Count 8 charged appellant with acquiring marihuana without paying the tax imposed by 26 U.S.C.A. § 4741(a), in violation of 26 U.S.C.A. § 4744(a). The government concedes the infirmity of that conviction on this count under Leary v. United States, supra. Without further inquiry, we reverse the conviction on count 8.

Appellant contends that he was so prejudiced by being convicted and sentenced under unconstitutional statutes that his concurrent sentences under constitutional convictions must be reversed as deprivations of due process. He argues that the trial judge, in setting the concurrent sentences on the valid counts, was influenced by the unconstitutional convictions. We disagree.

The concurrent sentence doctrine of Hirabayashi, supra, has not been abolished by Benton v. Maryland (1969) 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. After Benton this court, as a matter of judicial convenience, has not considered problems with counts, the punishments for which are sentences to be served concurrently with sentences imposed on valid counts. Jordan v. United States (9 Cir. 1969) 416 F.2d 338, cert. denied (1970) 397 U.S. 920, 90 S.Ct. 930, 25 L. Ed.2d 101, reh. den. 397 U.S. 1018, 90 S.Ct. 1232, 25 L.Ed.2d 433; Keith v. United States (9 Cir. 1970) 421 F.2d 1295; Johnson v. United States (9 Cir. 1970) 427 F.2d 537; United States v. Tamayo (9 Cir. 1970) 427 F.2d 1072. In United States v. Wong (9 Cir. 70) 425 F.2d 1077, where concurrent sentences of five years were imposed on three counts under § 4705(a) and on six other counts, this court declined to consider constitutional defects in the other six counts.

Appellant has not demonstrated any prejudice to him. In sentencing appellant, the trial judge referred to the overwhelming evidence, appellant's concocted alibis, and the profit motivation for engaging in the transactions. Further, the minimum sentence was five years. The trial judge sentenced appellant to concurrent sentences of eight years, a fraction of the maximum penalty provided.

In summary we affirm the conviction on counts 1, 2, 3, 4, 7 and 11, subject to our discussion of appellant's contention in Part II, infra. We reverse the conviction on counts 5, 6 and 8. We decline to rule on the conviction in count 12.

II.

Alleged Ineffective Representation by Counsel.

The appellant's reply brief includes material centering on apt. #2 at 2834 Sycamore Street, Los Angeles....