United States v. King

• Decision Date: 29 August 1973
• Docket Number: No. 72-1425.,72-1425.
• Citation: 485 F.2d 353
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Larue KING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

485 F.2d 353 (1973)

UNITED STATES of America, Plaintiff-Appellee, v. Charles Larue KING, Defendant-Appellant.

No. 72-1425.

United States Court of Appeals, Tenth Circuit.

Argued and Submitted November 14, 1972.

Decided August 29, 1973.

Rehearings Denied November 15, 1973.

COPYRIGHT MATERIAL OMITTED

Don J. Svet, Asst. U. S. Atty. (Victor R. Ortega, U. S. Atty., and Richard J. Smith, Asst. U. S. Atty., on the brief), for plaintiff-appellee.

Julius Lucius Echeles, Chicago, Ill., (Carolyn Jaffee, Chicago, Ill., and Thomas L. Marek, Albuquerque, N. M., on the brief), for defendant-appellant.

Before LEWIS, Chief Judge, McWILLIAMS, Circuit Judge, and CHRISTENSEN, District Judge.

McWILLIAMS, Circuit Judge.

Charles LaRue King was convicted by a jury of knowingly possessing with an intent to distribute approximately 602 pounds of marijuana, a Schedule I controlled substance under 21 U.S.C. § 812(c), (c) (10), in violation of 21 U.S.C. § 841(a) (1). King now appeals and his various grounds of assigned error will be grouped as follows: (1) The statute under which King was prosecuted, namely, 21 U.S.C. § 841(a) (1), is unconstitutional; (2) the search of his car and the seizure therefrom of 300 bricks of marijuana was in violation of his Fourth Amendment rights; (3) his Fifth Amendment privilege against self-incrimination was violated; and (4) the evidence in several particulars is legally insufficient to support the verdict. Brief reference to the facts and circumstances surrounding King's arrest will put these several matters in context.

A border patrol agent stopped an automobile driven by King at a so-called checkpoint station located about three miles north of Truth or Consequences, New Mexico, the agent testifying that he was stopping all vehicular traffic to look for "illegal aliens." After stopping King, the agent inquired as to his citizenship, with King responding that he was an "American." The agent then directed King to pull over to the side and open his trunk, the agent testifying that he wanted to ascertain whether there were any aliens hiding in the trunk. King complied with these directions, and as he was in the process of opening the trunk he volunteered a statement to the effect that "Yes, you made a good catch this time."

The agent's testimony was that as he looked into the opened trunk he saw no person hiding therein, but that he did see what appeared to him to be "bricks of marijuana across the shelf, the back shelf in the car, and a tarp covering something and a tire laying on top of the tarp." The agent outlined his past experience with bricked marijuana and testified that based thereon he concluded that the bricks in King's trunk were bricks of marijuana. Accordingly, the agent arrested King and the 300 bricks of marijuana taken from King's trunk form the basis for the present prosecution. Further background material will only be developed as necessary to an understanding of King's various grounds of alleged error.

I.

King initially contends that the statute under which he was convicted is unconstitutional. It is argued that Congress had no power to enact 21 U.S.C. § 841(a) (1) under which one could be convicted for purely intrastate activity, and that since there is no specific grant of power to enact a statute of the broad scope of § 841(a) (1), the matter is one reserved to the several states under the Tenth Amendment. It is clear from a reading of the statute under which King was convicted that there indeed need be no connection, as such, between the facts of a particular case and interstate commerce. However, in this general regard, mention should be made of Congressional findings and declaration of legislative intent as set forth in 21 U.S.C. § 801(3), which read as follows:

"(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nonetheless have a substantial and direct effect upon interstate commerce because—

"(A) after manufacture, many controlled substances are transported in interstate commerce,

"(B) controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and

"(C) controlled substances possessed commonly flow through interstate commerce immediately prior to such possession."

Quite obviously, then, it was the intent of Congress to enact a statute which would cover the facts of the instant case. There remains the issue as to whether Congress has the power to thus enact. We are advised that two other Courts of Appeals have been presented with this same issue and that each has held § 841(a) to be a valid exercise by Congress of the power granted it under the commerce clause. United States v. Scales, 464 F.2d 371 (6th Cir. 1972), and United States v. Lopez, 459 F.2d 949 (5th Cir. 1972). Without detailing the reasoning of those two cases, we subscribe thereto and hold that § 841(a) is a valid exercise by Congress of a power vested in it by the Constitution.

King also challenges the constitutionality of § 841(a) on a different ground. One essential ingredient of § 841(a) is that the possession of the controlled substance must be with an "intent to distribute." The "intent" with which a controlled substance is possessed is generally established through circumstantial evidence and in this regard we have held that the quantity of the drug possessed is a circumstance which may permit the inference that the possessor had an intent to sell, deliver or otherwise distribute. United States v. Ortiz, 445 F.2d 1100 (10th Cir. 1971), cert. denied, 404 U.S. 993, 92 S.Ct. 541, 30 L. Ed.2d 545 (1971). King argues that § 841(a) is constitutionally deficient because it fails to state "how much" of the controlled substance is necessary to permit the inference that the possessor had an intent to distribute. We deem this argument of the alleged vagueness of the statute to be without merit. The statute clearly, and without vagueness, makes unlawful the possession of any controlled substance with an intent to distribute. The question as to the quantity which would permit the inference that the possessor had an intent to distribute is evidentiary in nature and necessarily depends upon all the facts and circumstances of the case at hand, and mention thereof in the statute is entirely unnecessary.

Brief mention is also made concerning the provisions of § 841(b) (4) which provides that one who violates § 841(a) "by distributing a small amount of marijuana for no remuneration" shall be treated as provided for in another section of the statute, i. e., § 844(a) and (b). In this regard, King suggests that the phrase "small amount of marijuana" is unconstitutionally vague. King, however, was indicted and convicted for violating § 841(a) and the evidence showed he possessed over 600 pounds of marijuana, and the quantity thus possessed clearly supported the inference that he intended to distribute the controlled substance. Hence, under such circumstances the provisions of § 841(b) (4) are not brought into play, and accordingly we need not here concern ourselves with the argument that the language used in this particular section of the statute is vague.

II.

Complaint is next made by King that the search of his car and the seizure therefrom of the 300 bricks of marijuana was an unlawful search and seizure. In this regard, King filed a motion to suppress which, after an evidentiary hearing, was denied. King now assigns this ruling as error.

This search is sought to be upheld under 8 U.S.C. § 1357(a) (3), which allows Immigration Officers to stop and search any vehicle for aliens "within a reasonable distance from any external boundary of the United States." The term "reasonable distance" is defined at 8 C. F.R. § 287.1 as being one hundred air miles. King contends that the search and seizure was improper because: (a) There was insufficient evidence that the checkpoint at Truth or Consequences is within one hundred air miles from the Mexican border; (b) the provisions of 8 U.S.C. § 1357(a) (3) which purported to empower the Attorney General to determine what is a "reasonable distance" from an external boundary are violative of the Fourth Amendment under the reasoning of Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L. Ed.2d 564 (1971); and (c) the aforesaid statute and the regulation promulgated thereunder purporting to authorize warrantless searches of automobiles without probable cause for aliens at a fixed checkpoint some ninety-eight miles from an external boundary violates the Fourth Amendment under the reasoning of the recent case of Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). Although we are of the view that Almeida-Sanchez does have application to the instant case, and requires a remand for further hearing, in view of the remand each of these several contentions should be considered now.

King initially argues in this court that there is no competent evidence that the checkpoint near Truth or Consequences, New Mexico, is within one hundred air miles of the Mexican border. This particular matter in our view was not really raised in the trial court, and for that reason will not be considered by us. It is true that in the hearing on the motion to suppress, counsel for King in his examination of the border patrol agent inquired as to how far the checkpoint at Truth or Consequences was from the Mexican border. The agent testified it was ninety-eight air miles, whereupon counsel established that the agent himself had never flown from the border to the checkpoint and that his testimony was hearsay in nature.

At this point, the Government attorney objected. In so doing, the Government attorney stated that he had not intended to prove mileage distance through the agent, but would do...