United States v. Taylor, 12469.

• Decision Date: 04 May 1959
• Docket Number: No. 12469.,12469.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James TAYLOR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

266 F.2d 310 (1959)

UNITED STATES of America, Plaintiff-Appellee, v. James TAYLOR, Defendant-Appellant.

No. 12469.

United States Court of Appeals Seventh Circuit.

May 4, 1959.

Erwin W. Roemer, Chicago, Ill., for appellant.

Robert Tieken, U. S. Atty., John F. Grady, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., of counsel, for appellee.

Before SCHNACKENBERG, HASTINGS and KNOCH, Circuit Judges.

KNOCH, Circuit Judge.

Defendant-Appellant, James Taylor, was indicted, tried to a jury, and found guilty of an offense under Title 21 U.S. C. § 176a, as amended by the Narcotic Control Act of 1956, in knowingly, with intent to defraud the United States, receiving, concealing, and facilitating the transportation and concealment after unlawful importation of approximately 30 pounds of marihuana, knowing the same to have been imported into the United States contrary to law.

Defendant's appeal relies on errors allegedly made in instructions to the jury, rulings on evidence, and failure to grant a motion for verdict of acquittal.

The evidence at the trial indicated the following. On May 14, 1958, Tom Wagner, the Supervising United States Customs Agent at Brownsville, Texas, learned from one of his subordinates, Agent Dompier, that two Mexican informants, one named Santos Larma and the other known only as Jose or Joe, had been hired to haul marihuana from Brownsville, Texas, for delivery to one Jose Lopez and an unidentified Negro man at the Manor Motel near Joliet, Illinois, and that the informants, when ready to haul the marihuana from Texas to Illinois, would notify the Customs Bureau.

Agent Wagner saw the informants on May 18, 1958, at Brownsville, Texas. He did not learn when or from whom they had obtained the two sacks containing marihuana which the informants had with them. A Texas police officer rode with the two informants when they drove off from Brownsville, headed for Illinois, in their own automobile, with the contraband. Agents in government automobiles preceded and followed the informants throughout the trip.

Wagner testified that he planned to apprehend the person who ordered the marihuana. For that purpose a constant surveillance was maintained.

On May 20, 1958, the agents saw the informants carry the two sacks of marihuana into Cabin 40 at the Manor Motel. On May 22, 1958, at 7:30 P.M. defendant, James Taylor, and Jose Lopez drove up in defendant's automobile and parked it in front of Cabin 40. Defendant and Lopez went into Cabin 40. In about ten minutes they and the two informants came out. Defendant opened the trunk of his automobile. Lopez and one of the informants each placed one sack inside. Defendant closed the trunk, gave the keys to Lopez, and both left the Motel in defendant's automobile with Lopez driving. The agents carrying on the surveillance followed the car, and, within about half a mile of the Manor Motel, arrested the defendant and Lopez. The only two sacks in the trunk were found to contain the marihuana.

Customs Agent Bruner, one of the agents who was present during the incident at the Manor Motel, testified that when he later interviewed defendant in the police station at 11th and State Streets, in Chicago, Illinois, he asked defendant for whom he had gone to get the marihuana and defendant said, for "Mr. Owens", and he further stated that he would not testify against Owens.

Defendant offered no evidence at the trial.

Defendant argues that the Trial Court's instruction that "* * * it is not necessary for the Government to adduce evidence that the marihuana was unlawfully imported. * * *" was incorrect, and, being based on an arbitrary connection between facts proved and facts assumed, thus unconstitutionally deprived defendant of due process of law.

Defendant argues that the Trial Judge, and other Judges on whose rulings he relied, have all misinterpreted Yee Hem v. United States, 1925, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 with respect to presumption of unlawful importation in Title 21 U.S.C.A. § 174 (which except for the fact that it refers to "narcotic drug" instead of "marihuana", is identical to section 176a of the statute here involved).

We need not discuss this argument, as, without any reference to the Yee Hem case, this Court has ruled, with respect to section 174, that by force of the statute, proof of possession of the narcotic drug shall be sufficient evidence to authorize a conviction unless defendant explains his possession to the satisfaction of the jury. United States v. Feinberg, 7 Cir., 1941, 123 F.2d 425, 427, certiorari denied 315 U.S. 801, 62 S.Ct. 626, 86 L. Ed. 1201; United States v. White, 7 Cir., 1956, 228 F.2d 832, 834. Defendant's contention that marihuana can be grown domestically does not render invalid the presumption of unlawful importation created by section 176a. United States v. Soto, 7 Cir., 1958, 256 F.2d 729.

Defendant sought to have the jury instructed that if it believed that the government had direct evidence available concerning the manner of importation, then the jury was entitled to infer, from failure to present such evidence, that the evidence would have been unfavorable to the government. This instruction would have invited mere speculation as the testimony is silent as to whether the government did or did not have such evidence available. Such an instruction might well defeat Congressional intent in providing by statute that unexplained possession shall be sufficient evidence to authorize conviction.

Defendant contends that the use of the word "articles" in one instruction might have misled the jury into the belief that defendant could be found guilty on mere proof of possession of the sacks without knowledge of their contents. However, the Trial Judge in his charge instructed the jury: "* * * I say `articles', in this case we are dealing with marihuana. * * *"

In connection with the question of proof of possession, one of the cases cited by defendant is that of United States v. Landry, 7 Cir., 1958, 257 F.2d 425. However, that case is distinguished on facts. There, drugs owned by Landry were found in the pocket of another who stated that she was keeping it for him because if she let him have it he would use it all at once. Here the evidence placed the marihuana in Cabin 40. Defendant was in the cabin with the two informants, Lopez, and the marihuana for about ten minutes. He opened the trunk of his own automobile...