West v. United States

• Citation: 359 F.2d 50
• Decision Date: 20 April 1966
• Docket Number: No. 18125.,18125.
• Parties: Herman C. WEST, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

359 F.2d 50 (1966)

Herman C. WEST, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 18125.

United States Court of Appeals Eighth Circuit.

April 20, 1966.

COPYRIGHT MATERIAL OMITTED

Harold L. Rock, of Kutak, Rock & Campbell, Omaha, Neb., for appellant.

Theodore L. Richling, U. S. Atty., Omaha, Neb., Frederic J. Coufal, Asst. U. S. Atty., Omaha, Neb., for appellee.

Before MATTHES, MEHAFFY and GIBSON, Circuit Judges.

GIBSON, Circuit Judge.

This is an appeal from a judgment of conviction by the United States District Court for the District of Nebraska wherein appellant was found guilty by a jury of violating 26 U.S.C. § 4742(a), prohibiting transfer of marijuana, except when made pursuant to a written order of the transferee on a form issued by the Secretary of Treasury.

As grounds for reversal appellant sets forth four basic arguments: (1) The instructions of the trial court were erroneous in that they contained confusing extraneous material; (2) There was an inadequacy of evidence to support the conviction; (3) The prosecution failed to establish an unbroken chain of custody on prejudicial evidence; and (4) The grand jury indictment was defective in that illegally seized evidence was presented to it during its deliberations.

As to the first allegation, appellant points out that the trial court in its instructions read not only the brief substantive prohibition of subsection (a) in § 4742, but in addition read the balance of the entire statute.¹ Subsection (b) follows subsection (a) and includes a long list of exceptions to the substantive prohibition. Exemptions are afforded to transfers by physicians, dentists, and veterinarians; transfers pursuant to a valid prescription; the sale for exportation; and purchases by certain governmental agents. Subsections (c) and (d) relate to the supply and preservation of the necessary forms, and subsection (e) gives an exemption to millers.

Obviously disturbed by the trial court's reading of this long list of exemptions, counsel for the government requested that the Court give a supplemental instruction found in 26 U.S.C. § 7491. This section states that the government is not required to negative any of the enumerated exemptions. Rather the burden of proof as to compliance with the exemptions is upon the defendant.²

At no time during the trial of this case did appellant claim that he was under one of the enumerated exemptions. He did not testify on his own behalf nor did he introduce any evidence even tending to indicate that one of the exemptions might be applicable. In fact appellant's entire defense was concentrated upon discrediting the government's evidence concerning identification. Appellant, therefore, argues that when the trial court injected these irrelevant issues in the instruction and followed by giving a supplemental instruction on the appellant's burden of proving these issues, it confused the jury, derogated defendant's presumption of innocence, and made it difficult for the jury to determine where the burden of proof lay.

Admittedly, appellant's trial counsel made no objections, either to the trial court's original reading of the entire statute or to the supplemental instruction dealing with the burden of proof on the enumerated exceptions. Rule 30, Fed.R. Crim.P., however, clearly requires a party to specify objections to the instructions and provides, "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, * * *." Notwithstanding the clear requirements of Rule 30, however, appellant contends that the trial court's instruction constituted "plain error" as set out in Rule 52(b), Fed.R.Crim.P. and should subject the judgment to reversal in spite of the fact no objection was made.

We cannot accept appellant's position. Clearly, the normal rule requires objection to the offered instructions. Since none were made, in order to assign error it must be shown that the action of the trial court constituted "plain error" within the purview of Rule 52(b). To show that the trial court has committed "plain error" we have held that the appellant must demonstrate that the trial court's action affected his "substantial rights" resulting in a miscarriage of justice. Black v. United States, 309 F.2d 331 (8 Cir. 1962) cert. denied 372 U.S. 934, 83 S.Ct. 880, 9 L.Ed.2d 765; McNeely v. United States, 353 F.2d 913 (8 Cir. 1965).

After an examination of the facts and arguments in this case, we are convinced that the trial court's instructions did not constitute "plain error" under Rule 52(b). The instructions contained no misstatement of the law. Though perhaps unnecessary, the statute was correctly read in its entirety and the burden of proving the exemptions was correctly placed. The only problem is that defendant was not claiming an exemption. Nonetheless, the instructions clearly indicated that the supplemental burden of proof instruction pertained only to the exemptions. We must assume that the jury followed this instruction and only applied the burden as directed by the court. Beck v. United States, 298 F.2d 622 (9 Cir. 1962). Furthermore, we must assume that the jury carefully followed the evidence presented. In doing so they would no doubt recognize that appellant had made no claim of exemption and, therefore, that particular part of the statute and its accompanying burden of proof need not be applied in this case. We can assume that the jury possessed ordinary intelligence and ordinary ability to interpret the facts and understand the instructions. Orton v. United States, 221 F.2d 632 (4 Cir. 1955). Assuming this we do not believe the jury would be unduly confused by the superfluous instructions.

Finally, in considering the impact of instructions it is well established that they must be viewed as a whole. Segal v. United States, 246 F.2d 814 (8 Cir. 1957). Looking at the entire charge we see that the trial court carefully instructed on the presumption of innocence and the burden of proving guilt on the substantive charge. We feel that of all doctrines of law known to the man on the street, perhaps the best known is, "a man is innocent until proved guilty." We believe this axiom was accurately explained to the jury and it was not prejudicially obscured by the balance of the trial court's instructions.

We are, therefore, of the opinion that the instructions of the trial court did not affect the substantial rights of the appellant or result in a miscarriage of justice, and as a result did not constitute "plain error." Since appellant's trial counsel made no objection to the instructions, we cannot consider whether they, in themselves, constitute error.

The evidence in this case, accepting as we must the version most favorable to the jury's verdict, (Bell v. United States, 251 F.2d 490 (8 Cir. 1958)) indicates that Edgar Rich, an undercover officer for the Omaha Police Department, was on an assignment to purchase marijuana from a suspect. In the evening hours of August 12, 1963, Officer Rich was parked in his open convertible in front of an Omaha night club. While parked there, Officer Rich was approached by an individual who identified himself as "West." After a short conversation "West" offered to sell Rich four packets of marijuana. Officer Rich purchased the packets without the necessary order form, ascertained where "West" obtained the marijuana, and drove away. He marked the packets for identification and immediately turned them over to Omaha narcotics agent Cox. Officer Cox testified that he either kept the packets on his person the rest of the evening and placed them in the office safe the next morning, or that he immediately took the packets to the office safe. He couldn't remember which. The packets were subsequently sent to Chicago for examination and identified at trial as containing marijuana. Officer Rich identified the packets and positively identified appellant as the individual who sold them to him.

Appellant points out that the only evidence connecting him with the sale is the testimony of Officer Rich. Appellant contends that this identification is insufficient to support the jury's guilty verdict. This contention is without merit.

Officer Rich made a positive and unequivocal identification of appellant. A severe cross-examination did nothing to sway this identification. Rich indicated that appellant identified himself as "West", which fortifies his visual identification.

The evidence further indicates that Officer Rich was able to make a competent identification. He was sitting in an open convertible, on a well lighted business street, in front of a lighted night club. Though the sun was down, it appears as though there was still some light in the sky. The man identified as the appellant talked to Officer Rich from outside of the car and eventually got into the car and conducted a conversation which lasted approximately fifteen minutes. During this time Rich and the man identified as appellant could have been no more than a few feet apart. Furthermore, Officer Rich, realizing future identification would be necessary, was no doubt making close note of the vendor's features. This type of association cannot be considered a fleeting glance in the dark. Rich was indeed competent to make a positive identification and the jury was justified in accepting his testimony. Its decision must stand.

As a third point appellant is arguing that it was error to admit the packets containing the marijuana in that there was no proper foundation to establish a chain of custody from the defendant to the time of analysis. There is no merit in this contention.

Whether or not a proper foundation has been established for the admission of real evidence is a matter that rests within the discretion of the trial court. "The trial judge's determination that the showing as to identification and nature of contents is sufficient to warrant reception of an...