United States v. May, 24926.

• Citation: 431 F.2d 678
• Decision Date: 13 October 1970
• Docket Number: No. 24926.,24926.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. George Vernon MAY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

431 F.2d 678 (1970)

UNITED STATES of America, Plaintiff-Appellee, v. George Vernon MAY, Defendant-Appellant.

No. 24926.

United States Court of Appeals, Ninth Circuit.

September 22, 1970.

Rehearing Denied October 13, 1970.

William N. Fielden, LaJolla, Cal., for defendant-appellant.

Harry D. Steward, U. S. Atty., Joseph A. Milchen, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before BARNES, JERTBERG and ELY, Circuit Judges.

JERTBERG, Circuit Judge:

Following trial to a jury, the appellant, George Vernon May, and co-defendants Mosbacher and Ormond, were convicted on each count of a two count indictment. Each count charged a violation of 21 U.S.C. § 176a, on or about January 20, 1968. On September 30, 1968, appellant was committed to the custody of the Attorney General for imprisonment for a term of five years on each count, with the sentences on both counts ordered to run concurrently.

Count One charged that appellant and his co-defendants, with intent to defraud the United States, knowingly smuggled into the United States from Mexico approximately seventy-five pounds of marijuana, which marijuana had not been presented for inspection, entered and declared as provided by 19 U.S.C. §§ 1459, 1461, 1484 and 1485.

Count Two charged appellant and his co-defendants, with intent to defraud the United States, knowingly concealed and facilitated the transportation and concealment of the same quantity of marijuana, which they knew had been imported and brought into the United States contrary to law.

Only the appellant May is involved in this appeal. He does not question the sufficiency of the evidence to sustain the conviction. His main contention is that the district court erred in the giving of the following instructions to the jury, to the giving of which he made no objection:

(a) In connection with this statute, 21 U.S.C. § 176a when an accused on trial is proved beyond a reasonable doubt to have been in possession of marijuana, such possession authorizes the jury to draw an inference that the marijuana was imported contrary to law and to draw a further inference that the accused had knowledge of such unlawful importation, unless the evidence in the case provides a satisfactory explanation for the defendant\'s possession of the marijuana.

(b) What the statute 21 U.S.C. § 176a does do, however, is to create an inference in favor of the United States. Thus, if you should find from the evidence beyond a reasonable doubt that there was possession as that term will be defined to you, on the part of the defendants, of the marijuana referred to in the indictment, such possession creates a permissible inference of guilt as charged in the indictment.

(c) When an accused on trial is proved beyond a reasonable doubt to have been in possession of marijuana, such possession authorizes the jury to draw an inference that the marijuana was imported contrary to law, and to draw a further inference that the accused had knowledge of such unlawful transportation or importation, unless the evidence in the case provides a satisfactory explanation for the defendant\'s possession of the marijuana.

Appellant's only other contention on this appeal is that the district court erred in denying his motion for a mistrial because of the Government's claimed failure to comply with the pretrial discovery order made by the district court.

In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (decided May 19, 1969, over seven months after appellant had been sentenced), the court held unconstitutional that part of 21 U. S.C. § 176a permitting the jury to presume or to infer that the defendant knew that the marijuana had been illegally imported from proof that he had been in possession of the marijuana.

In United States v. Scott, 425 F.2d 55 (9th Cir. 1970), the majority of this Court, sitting en banc, concluded that the decision in Leary, partially invalidating the presumption, is fully retroactive.

In Scott, the majority of the Court also held that Scott's failure to except to the instruction embodying the presumption did not foreclose Scott from asserting the point on appeal.

In the course of the majority opinion in Scott, it is stated at page 59:

"Because Scott\'s case was submitted to the jury on alternative theories, one of which was the constitutionally invalid presumption, the conviction must be set aside, unless the giving of the instruction under the circumstances of this case was harmless beyond a reasonable doubt. (Harrington v. California (1969) 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California (1967) 386 U.S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705.)" Footnote omitted.

From the teachings of Leary and Scott, we hold:

(a) that the decision in Leary, held retroactive in Scott, is applicable to the instant case;

(b) that appellant's failure to object to the giving of the instructions set forth in this opinion does not foreclose him from asserting the point on this appeal; and

(c) that the giving of the above instructions constitutions reversible error unless it can be said that under the evidence in this case such error is harmless beyond a reasonable doubt.

Such holding appears to be consonant with the views stated by the Government in its reply brief, to wit:

"Although the statutory presumption itself was not given as a part of the instructions in this case, it seems clear that the jury was instructed that the statute permitted them to draw the inference of knowledge of illegal importation from possession by May of the contraband. With the retroactive application of Leary, the giving of the instruction would appear to be reversible error."

Therefore, our task in this case is to determine from evidence in the record, independent of the presumption or inference stated in the court's instructions, whether the giving of such instructions constitutes harmless error beyond a reasonable doubt.

The salient facts stated in the light most favorable to support the judgment of conviction may be stated as follows:

On January 20, 1968, at approximately 10:00 p. m., appellant entered the United States from Mexico, at a Port of Entry at Tecate, California, as the driver and sole occupant of a 1958 Chevrolet. Appellant stated to the Customs Inspector, Patrick Vaughan, that he was a citizen of the United States; that he was bringing nothing from Mexico; and, after routine inspection of his vehicle, including the opening of the automobile trunk, he was permitted to enter the United States. There is no evidence that there was any marijuana or debris in the car.

Appellant proceeded north along Tecate Road, which is the only road running north from the Port of Entry, and was kept under observation by Inspector Vaughan. The car proceeded north approximately one block to a post office, turned around and went east on Thing Road which runs parallel to the International Boundary. After paralleling the border for some distance, Thing Road rejoins Tecate Road.

Inspector Vaughan radioed to Immigration Inspector Henderson and instructed him to maintain observation of the vehicle. The vehicle travelled east on Thing Road, made a U turn and returned to Tecate Road. It travelled north on Tecate Road for about a block, made another U turn, went south, and then turned east on to Thing Road again. On this occasion the right turn indicator was activated and the vehicle stopped for a brief period of from thirty to sixty seconds. The vehicle turned around, went west on Thing Road, and then returned north on Tecate Road.

Located at the point on Thing Road where the vehicle stopped was a foot trail that ran down to the Mexican border.

By using a radio, Inspector Henderson communicated with Inspectors Gray and Lindeman, advising them that the car was making a U turn and pulling out on Thing Road. He told them of the car movements that were being made. The officers set up an interception point at the junction of Tecate Road and Highway 94, a distance of 1.8 miles from the Port of Entry, with one stationary light and two blinking red lights. Another vehicle, a van type vehicle, subsequently entered the United States and proceeded north on Tecate Road. Inspector Henderson observed the movement of this vehicle through his binoculars. The van vehicle made a stop at the interception point.

At about the same time the Chevy vehicle shot around the van vehicle and made no attempt to stop. Pursuit began, and Inspector Lindeman saw objects being thrown from the vehicle. They were green and blue cellophane wrapped. Inspector Gray got out of the car to pick up the objects. Inspector Lindeman continued his pursuit. After an approximate six mile chase, the Chevy vehicle was stopped. Appellant was driving with co-defendants Mosbacher and Ormond in the rear seat. Appellant asked Inspector Lindeman "Am I under arrest?" and stated "I run the stop light."

When Inspector Lindeman was advised that the objects thrown from the car were marijuana, he placed the three occupants of the car under arrest. The Chevrolet automobile was returned to Tecate, and marijuana debris was found on the seats and on the floor of the car. There were approximately 34 bricks of marijuana and four burlap bags that had been...