United States v. Liguori

• Citation: 438 F.2d 663
• Decision Date: 16 February 1971
• Docket Number: 404 and 405,34830,No. 350,34834 and 34972.,403,Dockets 35117,350
• Parties: UNITED STATES of America, Appellant, v. John Albert LIGUORI, Appellee. UNITED STATES of America, Appellant, v. Jose GONZALEZ PEREZ and Francisco Rivas, Appellees. UNITED STATES of America, Appellant, v. Israel VALLEJO, Petitioner-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

438 F.2d 663 (1971)

UNITED STATES of America, Appellant, v. John Albert LIGUORI, Appellee.

UNITED STATES of America, Appellant, v. Jose GONZALEZ PEREZ and Francisco Rivas, Appellees.

UNITED STATES of America, Appellant, v. Israel VALLEJO, Petitioner-Appellee.

Nos. 350, 403, 404 and 405, Dockets 35117, 34830, 34834 and 34972.

United States Court of Appeals, Second Circuit.

Argued December 4, 1970.

Decided February 16, 1971.

Jay S. Horowitz, Asst. U. S. Atty., New York City (Ross Sandler, Asst. U. S. Atty., and Whitney North Seymour, Jr., U. S. Atty. S. D. of New York, New York City, on the brief), for appellant in U. S. A. v. Liguori.

David A. Luttinger, Asst. U. S. Atty., New York City (Walter J. Higgins, Jr. and Charles B. Updike, Asst. U. S. Attys. and Whitney North Seymour, Jr., U. S. Atty. S. D. of New York, New York City, on the briefs), for appellant in U. S. A. v. Perez and Rivas and U. S. A. v. Vallejo.

Phylis Skloot Bamberger, The Legal Aid Society, New York City (Milton Adler, The Legal Aid Society, New York City, on the brief), for appellee, John Albert Liguori.

Gretchen White Oberman, New York City (diSuvero, Meyers, Oberman & Steel, New York City, on the brief), for appellees, Jose Gonzalez Perez, Francisco Rivas and Israel Vallejo.

Before MEDINA, FRIENDLY and SMITH, Circuit Judges.

MEDINA, Circuit Judge:

In these four appeals by the United States from orders vacating the convictions of John Albert Liguori, Jose Gonzalez Perez, Francisco Rivas and Israel Vallejo, involving, respectively, possession of small quantities of cocaine and marihuana, and in one instance possession of 48 pounds of marihuana, there is presented for the first time in this Circuit the question whether the Supreme Court's decisions in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) and Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), which held unconstitutional the presumptions contained in 21 U.S.C. Sections 174 and 176a and 26 U.S.C. Section 4704(a), are to be applied retrospectively to convictions attacked collaterally under 28 U.S.C. Section 2255.¹ The District Judge in each case vacated the judgment and sentence, holding that the Leary and Turner decisions applied.² For the reasons stated in this opinion, we affirm.

I.

Appellee Liguori was convicted in July of 1966 by Judge Weinfeld, sitting without a jury, for: (1) receiving, concealing, selling and transporting a half-grain of cocaine hydrochloride, in violation of 21 U.S.C. Sections 173 and 174; (2) purchasing, selling, dispensing and distributing cocaine hydrochloride not in or from the original stamped package, in violation of 26 U.S.C. Sections 4701, 4703, 4704(a), 4771(a) and 7237(a); and (3) receiving, concealing, purchasing, selling and transporting a half-ounce of marihuana, in violation of 21 U.S.C. Section 176a. The Government proved at the trial that Liguori mailed a carton from New York City containing the cocaine and marihuana to a friend in Florida in June of 1964. But no direct evidence showing that the marihuana and cocaine were illegally imported or that appellee knew they were illegally imported was introduced at the trial. Liguori made no objection, however, to the use of the presumptions covering those elements of the crimes charged. This Court affirmed the conviction and five-year sentence after an appeal. United States v. Liguori, 373 F.2d 304 (2d Cir. 1967). Liguori filed a motion to vacate his sentence and conviction under 28 U.S.C. Section 2255 after the Leary and Turner decisions were announced. Judge Weinfeld decided that Leary and Turner were to be given complete retrospectivity and vacated the judgment and sentence as to the first and third counts, the sentence on the second count having already been served.

Appellees Perez and Rivas were also convicted in July of 1966, for receiving and concealing 48 pounds of marihuana, in violation of 21 U.S.C. Section 176a, and of conspiracy to do so. They, along with two other men, had been arrested after agreeing to sell the marihuana to a federal agent in New York City. Again at the trial no direct evidence of the illegal importation of the marihuana or appellees' knowledge thereof was introduced. The court instructed the jury on the basis of the presumption, which charge was excepted to by appellees. Perez received a ten-year sentence as a second offender and did not appeal his conviction, and Rivas's appeal from a five-year sentence was dismissed for lack of prosecution. Appellees filed separate motions to vacate their convictions under 28 U.S.C. Section 2255 after the decision in Leary was handed down, and Judge Palmieri granted the motions, holding that Leary applied.

Appellee Vallejo was convicted in March of 1966 for having purchased, sold, dispensed and distributed 3.22 grams of cocaine other than in or from the original stamped package, in violation of 26 U.S.C. Sections 4701, 4703, 4704(a), 4771(a) and 7237(a), and for receiving, concealing and facilitating the transportation of the cocaine, in violation of 21 U.S.C. Sections 173 and 174. Vallejo and another man were apprehended in New York City in September of 1964 after a federal narcotics agent, while walking toward them, observed them dropping tinfoil envelopes to the pavement. Here also the Government introduced no evidence as to the illegal importation of the cocaine, appellee's knowledge of the illegal importation, or that he had purchased, sold, dispensed or distributed the cocaine in other than the original stamped package. Similarly, the trial judge incorporated the presumptions in his charge to the jury, and appellee made no objection. Appellee received a ten-year sentence as a second offender and his conviction was affirmed from the bench on appeal. Vallejo filed his motion to vacate the conviction under 28 U.S.C. Section 2255 after Turner was decided, and Judge MacMahon granted the motion, holding that Turner applied retrospectively.

Although appellees Liguori and Vallejo did not question the use of the presumptions at trial, and apparently none of the appellees raised the issue on appeal, we hold that they are not therefore barred from raising it now. At the time of the trials only one case, Erwing v. United States, 323 F.2d 674 (9th Cir. 1963), had held the presumption of 21 U.S.C. Section 174 unconstitutional with respect to cocaine, but no other circuit followed this holding and the decision was not binding in this Circuit. Other than Erwing, the decisions solidly sustained the presumptions against constitutional attack. United States v. Coke, 364 F.2d 484 (2d Cir. 1966), cert. denied, 386 U.S. 918, 87 S.Ct. 877, 17 L.Ed. 2d 789 (1967) (21 U.S.C. Section 174); United States v. Gibson, 310 F.2d 79 (2d Cir. 1962) (21 U.S.C. Section 176a); Jones v. United States, 377 F.2d 742 (8th Cir.), cert. denied, 389 U.S. 885, 88 S.Ct. 157, 19 L.Ed.2d 183 (1967) (26 U.S.C. Section 4704(a)). Under the circumstances the failure to make what was then a patently futile objection is not a bar. United States v. Lopez, 414 F.2d 272 (2d Cir. 1969); United States v. Scott, 425 F.2d 55 (9th Cir. 1970 in banc); Martone v. United States, 435 F.2d 609 (1st Cir. 1970).

II.

In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Supreme Court held that the presumption in 21 U.S.C. Section 176a,³ that allowed a jury to find illegal importation of marihuana and defendant's knowledge thereof solely from possession, violated the due process clause of the Fifth Amendment. Using the "rational connection"⁴ test for judging the constitutionality of statutory presumptions, the Court could not say with "substantial assurance" that a person in possession of marihuana was more likely than not to know that it was illegally imported, as it found that "a significant percentage of domestically consumed marihuana may not have been imported at all * * *." So the presumption of a defendant's knowledge of the illegal importation was struck down. The Court applied the same standard in invalidating the presumption of illegal importation and knowledge of illegal importation, contained in 21 U.S.C. Section 174,⁵ with respect to possession of cocaine in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), but upheld the statute with respect to possession of heroin and opium. The Court found that while all heroin and opium is illegally imported, coca leaves are legally imported for processing into cocaine and that more cocaine is legally produced in the United States than is smuggled into the country. Turner also struck down, with respect to the cocaine then involved, the presumption of 26 U.S.C. Section 4704(a),⁶ which made the absence of the appropriate tax stamps prima facie evidence of purchasing, selling, dispensing and distributing a narcotic drug not in or from the original stamped package by the person proved to have been in possession of the drug. While the Court found the presumption rational as to heroin and opium, it held that the small amount of cocaine involved (14.68 grams of a cocaine and sugar mix) would not allow an inference of dealing in the drug, and the amount of theft of legal, stamped cocaine made the statutory presumption infirm as to purchasing or dealing in unstamped cocaine. As we find no significant difference between the rationale of Leary and that of Turner, at least as applied to small amounts of cocaine, we shall not distinguish between them in the ensuing discussion.

III.

A.

The Government argues that since the Supreme Court relied heavily on statistical data compiled in 1967 and 1968 in deciding that the statutory presumptions were irrational and therefore unconstitutional, the Court did not decide their constitutionality as to previous years. So, the argument continues, these decisions are limited to the years in which they were rendered and should not be applied to convictions that became final in prior years. Since the...