United States v. Nichols

• Decision Date: 18 September 1963
• Docket Number: No. 13971.,13971.
• Citation: 322 F.2d 681
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alphonso NICHOLS, Defendant Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

322 F.2d 681 (1963)

UNITED STATES of America, Plaintiff-Appellee, v. Alphonso NICHOLS, Defendant Appellant.

No. 13971.

United States Court of Appeals Seventh Circuit.

September 18, 1963.

Melvin B. Lewis, Chicago, Ill., for appellant.

James P. O'Brien, U. S. Atty., John Powers Crowley, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., of counsel, for appellee.

Before HASTINGS, Chief Judge, and DUFFY and SCHNACKENBERG, Circuit Judges.

SCHNACKENBERG, Circuit Judge.

Alphonso Nichols, defendant, has appealed from a judgment of conviction entered by the district court on an indictment charging violations of the United States narcotics laws, upon which he was sentenced to the custody of the attorney-general for a period of seven years on each of nine counts, to run concurrently.

Counts VIII and IX were dismissed on motion of the government. The various remaining counts respectively charged defendant with unlawful receipt, concealment, and sales of heroin in violation of 26 U.S.C.A. § 4705(a) and 21 U.S.C.A. § 174 both as amended by the Narcotic Control Act of 1956.

Defendant pleaded not guilty and was tried before a jury. His motion for a new trial was denied.

1. In this court defendant first contends that the district court did not tell the jury the details of what the indictment charged, but merely gave the indictment to the jury and told them that they were free to examine it "* * * if you like."

No objection based upon this alleged error was made at the trial, but we feel justified, in view of the nature of defendant's contention, to consider it in this court.

We have read the record and find that the jury was instructed, inter alia:

"Now, let\'s deal specifically with the charges that are contained in the counts of the indictment which you are going to consider.

"The defendant is charged in Counts I, III, V and X, that is, four counts, with violation of Section 4705(a) of the Internal Revenue Code of 1956, which reads as follows:

"`It shall be unlawful for any person to sell, barter, exchange or give away narcotic drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged or given on a form to be issued in blank for that purpose by the Secretary of the Treasury or his delegate.\'

"In Counts II, IV, VI and VII of the indictment, the defendant is charged that on April 5, 1961, April 10, 1961, April 19, 1961, May 12, 1961 and June 27, 1961, that he then and there, fraudulently and knowingly received, concealed and facilitated the transportation and concealment, after unlawful importation into the United States of a quantity of a certain drug, to-wit, under Count II, 15.9 grams, Count IV, approximately 16.6, Count VI, approximately 15.950 grams, Count VII, approximately 42.320 grams, Count XI, approximately 11.305 grams, knowing the same to have been imported into the United States contrary to law, in violation of Section 174, Title 21, of the United States Code, as amended by the Narcotic Control Act of 1956.

"The statute of the United States under which this violation is charged reads, in pertinent part, as follows:

"`Whoever fraudulently or knowingly receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug, after being imported or brought in, knowing the same to have been imported contrary to law, shall be,\' et cetera.

"This is also part of the statute:

"`Whenever on trial for a violation of this section, the defendant is shown to have or 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.\'

"In this instance, of course, the defendant has denied having possession of any narcotic drugs at any time."

In United States v. Jonikas, 7 Cir., 197 F.2d 675, we approved a conviction of defendant for possessing and passing counterfeit bills. At page 679 of 197 F.2d we discussed defendant's contention that the district court failed to instruct the jury in relation to certain charges in the indictment. We said:

"* * * Failure to describe more specifically the separate counts of the indictment did not deprive the defendant of any constitutional right nor deprive the court of jurisdiction to render the judgment."

We feel that the submission of the indictment to be examined by the jury, at its option, was of dubious value, although harmless.

We hold that the court's instructions as to the charges in the indictment were sufficient.

2. Defendant argues that the district court refused to properly consider the element of knowledge and the element of intent, in its instruction on the meaning of possession. We disagree.

For instance, the court properly charged:

"Now, what does possession of a thing mean? It means having it in one\'s control or under one\'s dominion. It is not necessary that possession be direct or immediate or exclusive.

"If you find from the evidence that the defendant, although he may have had the right to obtain physical control of a substance, did not know that such substance was narcotic drugs, then such possession of the narcotic is not that possession contemplated by the law. In other words, you have to have knowing possession of illegal or contraband products, such as narcotics, to constitute a violation of the law."

Moreover, we are satisfied that the jury was fully and correctly instructed on the law pertaining to reasonable doubt and presumption of innocence.

If anything, the court went out of its way to add the following instruction:

"For example, the presumption of innocence with which a defendant starts a trial is a presumption which the law requires you to make unless you find convincing evidence to the contrary. A presumption continues in effect until overcome or outweighed by evidence to the contrary. But if it is so outweighed, then you are to find whatever conclusion you draw from whatever evidence you have heard. If it is not so outweighed, you are bound to find in accordance with the presumption."

The court's solicitude for the rights of the defendant was emphasized by its concluding remarks to the jury:

"Let me reiterate, the defendant is presumed to be innocent unless you find beyond a reasonable doubt that the Government has established his guilt as to one or more counts of the indictment."

3. Asserting that the "most significant issue presented to the jury lay in the relationship between the defendant and the deceased known as Dorothy Nichols," defendant now concedes that drug addicts conducted transactions at defendant's home, but that he had no knowledge thereof. He points out that count VII relates to narcotics kept in a safe-deposit box which only Dorothy entered. However, it was stipulated at the trial that this box at a Chicago bank was leased to three persons, who were defendant, Dorothy and one Charles A. Ross.

In support of the testimony of certain witnesses, the government relied, inter alia, on evidence that a gun, government's exhibit F, was found in said box and the testimony of government witness Mack, who stated that, in April of 1961, he possessed an Italian 25 caliber silver pistol with scroll work on the side and a pearl handle; that about the middle of April, the exact date being unknown, he...