United States v. Scott

• Decision Date: 06 March 1970
• Docket Number: No. 23119.,23119.
• Citation: 425 F.2d 55
• Parties: UNITED STATES of America, Appellee, v. Phillip Andrew SCOTT, Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

425 F.2d 55 (1970)

UNITED STATES of America, Appellee, v. Phillip Andrew SCOTT, Appellant.

No. 23119.

United States Court of Appeals, Ninth Circuit.

March 6, 1970.

Joel W. H. Kleinberg (argued), Los Angeles, Cal., for appellant.

David Fox (argued), Asst. U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS, BARNES, HAMLEY, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, CARTER, HUFSTEDLER, WRIGHT, KILKENNY and TRASK, Circuit Judges.

HUFSTEDLER, Circuit Judge:

Appellant Scott appeals from his conviction for a violation of 21 U.S.C. § 176a.¹ Scott, along with two codefendants, was indicted on January 31, 1968, upon a charge that on October 26, 1967, he and his codefendants had "knowingly received, concealed and facilitated the transportation and concealment" of marihuana that they knew "theretofore had been imported and brought into the United States contrary to law." A jury found that appellant and his codefendant Walker were guilty as charged; a mistrial was declared as to codefendant Rico.

Scott contends that: (1) the inclusion in the instructions to the jury of the presumption from section 176a, held unconstitutional in part in Leary v. United States (1969) 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, compels reversal of his conviction; and (2) section 176a is unconstitutional because it is an indirect enforcement of the Marihuana Tax Act, 26 U.S.C. § 4741 et seq., held unconstitutional as applied in Leary. We uphold his first contention and reject his second contention. We sustain the constitutionality of section 176a (other than the presumption) as applied to Scott. We consider his contentions seriatim.

In Leary, the Supreme Court held unconstitutional that part of section 176a permitting the jury to presume or to infer that the defendant knew that marihuana had been illegally imported from proof that he had been in possession of marihuana, because there was no "substantial assurance that one in possession of marihuana is more likely than not to know that his marihuana was illegally imported." (395 U.S. at 46, 89 S.Ct. at 1553) Under such circumstances there is no "rational connection between the facts proved and the fact presumed," and the statutory presumption pro tanto fails the constitutional test of Tot v. United States (1943) 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519.

Before we reach the merits of Scott's presumption argument, we dispose of three preliminary questions: (1) Did Scott's failure to except to the instruction embodying the presumption foreclose him from here claiming error in the instruction? (2) Did Scott's failure to raise the same question upon a motion for acquittal or upon motion for a new trial foreclose him from raising it on appeal? (3) Is the Leary ruling on the unconstitutionality of the presumption retroactive?

The general rule is that a claim of error in a jury instruction is waived, unless the defendant excepts to the instruction before the jury retires to consider its verdict. (Fed.Rules Crim. Proc. 30; Lopez v. United States (1963) 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462.) The purposes of the rule are to enable the district court to correct a defect, if any, in the instruction and to prevent a defendant from hedging the risk of an adverse verdict by inviting error. (8A J. Moore, Federal Practice ¶ 51.02 (2d Ed. 1968).) At the time of Scott's trial, there was a solid wall of circuit court authority, including our own, sustaining the presumption against constitutional attack. (E. g., Caudillo v. United States (9th Cir. 1958) 253 F.2d 513, cert. denied sub nom. Romero v. United States (1958) 357 U.S. 931, 78 S.Ct. 1375, 2 L.Ed.2d 1373; Costello v. United States (9th Cir. 1963) 324 F.2d 260, 263-264, cert. denied (1964) 376 U. S. 930, 84 S.Ct. 699, 11 L.Ed.2d 650.) An exception would not have produced any results in the trial court. Under these circumstances were we to insist that an exception be taken to save the point for appeal, the unhappy result would be that we would encourage defense counsel to burden district courts with repeated assaults on then settled principles out of hope that those principles will be later overturned, or out of fear that failure to object might subject counsel to a later charge of incompetency. We conclude that Scott's failure to except did not waive the point on appeal.² (Kohatsu v. United States (9th Cir. 1965) 351 F.2d 898, 901 n. 4, cert. denied (1966) 384 U.S. 1011, 86 S.Ct. 1915, 16 L.Ed.2d 1017; United States v. Lopez (2d Cir. 1969) 414 F.2d 272; Fed. Rules Crim.Proc. 52(b); cf. United States ex rel. West v. LaVallee (2d Cir. 1964) 335 F.2d 230.)

On a parity of reasoning we conclude that Scott did not lose his point by neglecting to raise it by motion. The point would have been no more salable cast as a motion than it would have been as an exception. Moreover, we must be just as hesitant to dismiss a constitutional question for a failure to observe a formality that did not affect the course of trial as we are to seize upon a trivial error, formally preserved, to overturn a conviction.

Upon this court's direction, the parties filed supplemental briefs upon the question whether or not the Leary decision, invalidating part of the section 176a presumption, applies to cases then pending on direct appeal.³

The extent to which a "new" constitutional rule affecting criminal trials will be given restrospective application is determined by measuring the rule against three criteria: "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (3) the effect on the administration of justice of a retroactive application of the new standards." (Stovall v. Denno (1967) 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199.) "Foremost among these factors is the purpose to be served by the new constitutional rule." (Desist v. United States (1969) 394 U.S. 244, 249, 89 S.Ct. 1030, 1033, 22 L.Ed.2d 248.) Heavy weight should be given the last two factors — the extent of reliance and consequent burden on the administration of justice — "only when the purpose of the rule in question does not clearly favor either retroactivity or prospectivity." (Desist v. United States, supra, 394 U.S. at 251, 89 S.Ct. at 1035.) Accordingly, where the rule is fashioned to correct a serious flaw in the fact-finding process and therefore goes to the basic integrity and accuracy of the guilt-innocence determination, retroactive effect will be accorded. (E. g., McConnell v. Rhay (1968) 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2; Roberts v. Russell (1968) 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100; Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; Jackson v. Denno (1964) 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799; Griffin v. Illinois (1956) 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; see Linkletter v. Walker (1965) 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, 639.) Retroactivity has been denied or limited only in instances where the rule does not go to the fairness of the trial, or where the flaw in the fact-finding process is either of secondary importance or of infrequent occurrence. (E. g., Desist v. United States, supra; Stovall v. Denno, supra; Tehan v. United States ex rel. Shott (1966) 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453; Johnson v. New Jersey (1966) 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Linkletter v. Walker, supra; Williams v. United States (9th Cir. 1969) 418 F.2d 159.).

The invalidated portion of the presumption was an integral part of the fact-finding process. The use of the presumption affected the integrity of the determination of guilt, and its use was neither secondary in importance nor infrequent in occurrence. The Government's use of the presumption permitted it to bypass proof of substantive elements of the offense, thus creating a "serious risk that the issue of guilt or innocence may not have been reliably determined." (Roberts v. Russell, supra, 392 U.S. at 295, 88 S.Ct. at 1922.) The intimacy of the connection between the use of the presumption and the finding of guilt is dramatically evident in a case in which the Government relied upon the presumption alone to prove knowledge of illegal importation. But the presumption is no less inextricably bound to the finding of guilt when it is added to independent evidence of knowledge and the jury is permitted to decide guilt either upon the presumption, or upon the independent evidence, or both.

Neither the fact that there has been substantial reliance on the validity of the presumption nor the fact that retrospective application of Leary may affect numerous cases justifies limiting its retroactive application. The premise of Leary is that the presumption is, in part, factually unsupportable. It follows that of those convicted of violating section 176a by the use of the presumption, many are innocent of that crime. There is no legitimate interest in refusing relief to those who were not proved guilty, whether that relief is sought by direct or by collateral attack. When the integrity of the fact-finding process is at stake, it is of no consequence that an examination of that process is inconvenient, or that many, rather than a few, convicted persons have been subjected to that process.

We conclude that the decision in Leary partially invalidating the presumption is fully retroactive.

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,⁴ 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.)

The evidence,...