United States v. White, 11516.

• Decision Date: 06 January 1956
• Docket Number: No. 11516.,11516.
• Citation: 228 F.2d 832
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James WHITE and Gladys Davis, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

228 F.2d 832 (1956)

UNITED STATES of America, Plaintiff-Appellee, v. James WHITE and Gladys Davis, Defendants-Appellants.

No. 11516.

United States Court of Appeals Seventh Circuit.

January 6, 1956.

Joseph E. Clayton, Jr., Chicago, Ill., for appellants.

Robert Tieken, U. S. Atty., Anna R. Lavin, Asst. U. S. Atty., Chicago, Ill. (John Peter Lulinski, Edward J. Calihan, Jr., Asst. U. S. Attys., Chicago, Ill., of counsel), for appellee.

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

SCHNACKENBERG, Circuit Judge.

By their appeal the defendants ask us to review proceedings in the district court which culminated in their conviction upon a trial without a jury. A two count indictment charged them, under 21 U.S.C.A. § 174, with fraudulently and knowingly receiving, concealing, buying, and facilitating the transportation and concealment of narcotics after importation. Upon a finding of guilty, the defendant White was sentenced to a term of four years and fined $1, and the defendant Davis to a term of two years and a fine of $1.

1. In this court the defendants argue that the government failed to prove either of them guilty beyond a reasonable doubt.

With that contention in view, we have examined the evidence in the record and find that the evidence is sufficient, not only to sustain the finding of guilty as to both defendants on each count, but that the evidence overwhelmingly points to the guilt of both defendants. While there is some conflict in the evidence, only a question of credibility of the several witnesses is thereby raised. The resolution of that issue was vested in the trial court. United States v. Cook, 7 Cir., 184 F.2d 642, at page 644, and Stoppelli v. United States, 9 Cir., 183 F.2d 391, at page 394. In arriving at its findings the district court necessarily passed upon the credibility of the witnesses, and we have no right on this record to say that its findings were wrong.

2. Specifically defendants argue here that there was no testimony that they had possession of the narcotics mentioned in the indictment. The record contains evidence which supports a finding of possession.

They also contend that the burden was upon the prosecution to prove beyond a reasonable doubt that the drug here involved was imported or brought into the United States contrary to law, and, secondly, that the defendants in some manner facilitated the transportation, concealment or sale of the drug, knowing that it had been imported contrary to law, unless it was proved that the defendants had possession thereof. Section 174 of title 21, U.S.C.A., upon which the indictment is based, provides, in part:

"Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or 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, or conspires to commit any of such acts in violation of the laws of the United States, shall be fined not more than $2,000 and imprisoned not less than two or more than five years. * * *

"Whenever on trial for a violation of this subdivision the defendant is shown to have or to 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."

Having already found that there was evidence of possession, we hold that the government had a right to rely upon the statutory provision which has the effect of raising a presumption that the drug had been imported contrary to law, Pon Wing Quong v. United States, 9 Cir., 111 F.2d 751, at page 755, and that defendants had knowledge of such unlawful importation. In United States v. Feinberg, 7 Cir., 123 F.2d 425, at page 427, we said:

"By force of the statute, possession of narcotics gives rise to an inference that the narcotics were imported contrary to law and a further inference that the person in possession had knowledge of such unlawful importation. True it is, a defendant on trial may overcome these inferences by satisfactory proof that in his case possession of narcotics did not involve a violation of the statute, either because the narcotics were not imported contrary to law or because he had no knowledge of unlawful importation. * * *"

To the same effect are United States v. Chiarelli, 7 Cir., 192 F.2d 528, at page 531, and United States v. Holmes, 7 Cir., 187 F.2d 222, at page 223.

These cases show that the contentions of defendants are not sound.

3. A government witness, officer Halley of the Chicago police department, was permitted to testify that he was on an extension telephone when another government witness, James Burke, made a telephone call to defendant White, whose voice Halley recognized. In an oblique manner, defendants in their brief indicate that they believe that this listening by Halley "amounts to wire tapping" and his testimony thereon was not admissible. They do not argue the point, contenting themselves with saying in the conclusion of their brief that Halley's testimony "was improper and erroneous, violative of the constitutional rights of the defendants and contrary to law and prejudicial to the rights of the defendants and prevented them receiving a fair and impartial trial according to due process of law; * * *."...