John E. Bradford v. United States

271 F.2d 58

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 9, 1959
• Docket: 15624
• Status: Published

Opinions

HAMLIN, Circuit Judge.

The appellant, John E. Bradford, was convicted by a jury of two counts in an indictment charging him with selling heroin on two different dates in violation of § 174, Title 21 U.S.C.A. He received a sentence of fifteen years on each count, the sentences to run consecutively.

According to a portion of the Government’s testimony, the government agent Farrington made purchases of heroin on two occasions from Bradford and paid him the sum of $275.00 on each occasion. Bradford’s testimony, while similar to Farrington’s on many points, differed therefrom in certain particulars. Bradford admitted that he received the money from Farrington on each occasion. His story, however, was that Farrington had asked him to make a “buy” of heroin for him from a certain “Pat”. The appellant testified that he was an addict and that Farrington had said that he would give him a couple of capsules of heroin if he, Bradford, made the buy for him. Bradford then testified that he contacted “Pat” and was told by “Pat” where the heroin would be and where to leave the money. Bradford further testified that he met Farrington at this place, and that Farrington picked up the heroin in a brown package in a gutter underneath an automobile.

Concerning the second transaction, Bradford testified that Farrington had likewise given him $275.00 to buy heroin, that he had contacted “Pat”, and was told that the heroin would be in a brown paper bag under a palm tree at a certain address. He further testified that he and Farrington drove by the address in Farrington’s car, saw the brown bag under the palm tree, and that Farrington had then brought him back to where they had started from. Farrington testified that he later went back to the palm tree, picked up the brown bag, and that it was found to contain heroin. Bradford further contended that he was a heroin addict, that he was not interested in selling narcotics, and that while Farring-ton had told him that he would give him a few capsules of heroin if he made the buy for him that Farrington had not lived up to his promise in this regard.

Bradford further testified that he did not know where the heroin came from or that it was imported into the United States. He testified he thought it could be legally obtained by a doctor’s prescription. He also introduced testimony by a chemist that heroin was derived from morphine by a simple process, that morphine could be synthesized and this had been done at the University of Rochester in 1952; that codeine, a derivative of opium, was manufactured in the United States; and that heroin could be produced from codeine. During the trial it was stipulated by the Government and the appellant that in 1954,1955 and 1956, many thousands of ounces of morphine alkaloids and salts had been lawfully produced in the United States from lawfully imported raw opium.

Appellant, through his Court-appointed counsel, in an opening brief of 155 pages makes many claims of error.

The statute which the appellant was convicted of violating (the Jones-Miller Act, § 174, Title 21 U.S.C.A.) reads as follows:

“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 or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States, shall be imprisoned not less than five or more than twenty years, and, in addition, may be fined. * * *

“Whenever on trial for a violation of this subsection 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.

“For provision relating to sentencing, probation, etc., * *

The appellant first attacks the constitutionality of this Act. Many cases have upheld the constitutionality of this and similar statutes. Gonzales v. United States, 9 Cir., 1947, 162 F.2d 870; Yee Hem v. United States, 1925, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904; Casey v. United States, 1928, 276 U.S. 413, 48 S. Ct. 373, 72 L.Ed. 632.

Recently, this Court in considering a similar attack upon the constitutionality of a similar section [§ 176(a) Title 18 U.S.C. covering the importation, possession and sale of marihuana] said in Caudillo v. United States, 1958, 253 F.2d 513, 515:

“The Supreme Court (Yee Hem v. United States, 1925, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904) and this Court (Hooper v. United States, 9 Cir., 1926, 16 F.2d 868; Rosenberg v. United States, 9 Cir., 1926, 13 F.2d 369) have held the presumption of unlawful importation of narcotic drugs arising from possession not unconstitutional. ‘The statute has laid down a rule, not of substantive law * * * but merely of evidence.’ Stein v. United States, 9 Cir., 1948, 166 F.2d 851, certiorari denied 334 U.S. 844, 68 S.Ct. 1512, 92 L.Ed. 1768; Ng Choy Fong v. United States, 9 Cir., 1917, 245 F. 305, 307. Requirement of proof ‘to the satisfaction of the jury’ is not unconstitutional; Gonzales v. United States, 9 Cir., 1947, 162 F.2d 870, 871. It is not unconstitutional as forcing defendant to testify; Yee Hem v. United States, supra; Dear Check Quong v. United States, 1947, 82 U.S.App.D.C. 8, 160 F.2d 251; Mullaney v. United States, 9 Cir., 1936, 82 F.2d 638, 641; Rosenberg v. United States, supra.”

We hold the statute to be constitutional.

Appellant makes an attack upon the instructions given by the Court concerning this statute.

Before examining these instructions, it must be remembered that the appellant at all times denied that he possessed the heroin at any time. His contention was that at the instigation of the government agent, Farrington, he contacted by telephone a certain “Pat”, and that as a result, the heroin was found by the appellant and Farrington, on one occasion in a gutter beneath the wheel of an automobile, and upon another occasion was observed by the appellant and Farring-ton to be under a tree. On each occasion, according to appellant, Farrington personally took the heroin without the appellant touching it at all. On the occasion where the heroin was observed by Farrington and the appellant to be under the tree, Farrington later, by himself and without the appellant being present, v/ent to the tree and picked up the package containing the heroin.

At no time did appellant attempt to “explain the possession (of the heroin) to the satisfaction of the jury.” On the contrary, at all times he denied its possession.

In this posture of the case, the Court gave certain instructions to the jury concerning the statute, which are set out in the footnote.¹

We agree that these instructions are not a model to follow. While certain of these instructions set out the proper rule (1-A, 1-F, 1-G, 1-H and 1-1), certain parts of the others may be said to be contradictory thereof. If the defendant’s contention had been that he had had possession of the heroin, but had not known that it was unlawfully imported, or that he had been informed that it was legally obtained through a prescription or otherwise, or had given some other explanation of its possession, —then thek instructions of the Court that “there is no explanation in the United States for the possession of heroin” would have been clearly prejudicial.

A defendant has a right to have the jury pass upon his explanation of possession. As stated in United States v. Feinberg, 7 Cir., 123 F.2d 425, at page 427:

“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. The explanation of possession, however, if it is to serve the defendant’s purpose, must not only be believed by the jury but must also be one that shows a possession lawful under the statute.”

In United States v. Roviaro, 353 U.S. 53, at page 63, 77 S.Ct. 623, at page 629, 1 L.Ed.2d 639, the Court said:

“Petitioner contends that the Government in all cases must make a further affirmative showing that the accused knew he possessed narcotics. He argues that his failure to do so here entitles him to an acquittal. That contention, however, has been decided against petitioner in the cases cited * * Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 373, 72 L.Ed. 632; United States v. Chiarelli, 7 Cir., 192 F.2d 528, 531; Landsborough v. United States, 6 Cir., 168 F.2d 486; Stop-pelli v. United States, infra.

This court, in Stoppelli v. United States, 9 Cir., 1950, 183 F.2d 391, approved an instruction reading as follows:

“The law further provides that when on trial for concealment or facilitating the concealment of heroin the defendants have shown to have had possession of such heroin, such possession shall be deemed sufficient evidence to authorize the defendants’ conviction, unless the defendants explain their possession to your satisfaction.”

Under the facts of this case, however, there could be no prejudice to the defendant in the Court’s instructions, even though under other circumstances there might be just criticism leveled at some of these instructions. There was a clear issue in this case for the jury to pass upon as to possession. The government contended the appellant had possession of the narcotics and the defendant contended to the contrary. He did not say, “Yes, I had possession, but I want to explain it.” If that had been his position, the Court should have instructed the jury clearly and with no instructions in any way contradictory thereof, that his explanation was an issue for the jury to pass upon.

Under the facts of this case and considering the instructions as a whole, we hold that they were not prejudicial to the appellant.

In this case, the jury resolved the issue of possession against the appellant, and we hold there was ample evidence to sustain this implied finding of the jury. Having done so, and there being no evidence offered by the defendant to explain that possession, the jury were entitled under the provisions of the statute, to reach the conclusion that the narcotics were to the knowledge of the defendant imported into the United States contrary to law.

Appellant contends that the trial judge inadequately instructed the jury on the question of possession in connection with the purchasing or procuring agent. An instruction was offered by the defendant as set out in the footnote.² The Court refused to give this instruction. We see no error in this refusal. The instruction was prolix and argumentative. The Court instructed the jury as follows:

“Any person who aids, abets, commands, or causes another to do an act is as guilty of the act as if he had done it himself. Now, in this matter of the sale of heroin, if a person far removed from the supply of heroin, either actual or constructive, simply acts as a broker, then that person must have absolute knowledge and control over the situation in order to be so guilty.”

The above instruction, together with those we have already quoted in Footnote 1, sufficiently covered the point involved.

The contention is made that there was misconduct on the part of the United States Attorney by interrupting counsel during the making of his opening statement to the jury. While defense counsel was making his opening statement, the United States Attorney made the statement set out in a footnote.³ We see no prejudice to the appellant in these proceedings.

Appellant contends that the Court’s instruction to the jury upon constructive possession was in error. This instruction is set out in our prior footnote numbered 1-G. We see no error in the instruction.

The appellant contends there was prejudicial misconduct on the part of the United States Attorney in the closing argument where the following statement was made by the United States Attorney:

“But in this particular case, ladies and gentlemen, it is submitted that under the facts that have been given to you from the witness stand, that if your verdict is not guilty on each count there would be a travesty of justice.

“Talking about the facts of this particular case, ladies and gentlemen, if your verdict, under the circumstances which have been testified to in this court on this case, is not guilty, ladies and gentlemen, the effect of the law will be nil completely. Absolutely it will end federal control of narcotics.

“Ladies and gentlemen, we submit to you that should not be your verdict.”

Timely exception was made to the argument. When this matter was being argued to the trial judge upon a motion for a new trial, the judge stated:

“Do you think the jury understood that is what she was saying, that the whole federal system of enforcement of narcotic laws would fall unless this man were convicted?

“She had not contended that he was the pivotal figure in the entire fabric of narcotics vending in the United States. I think what she was undertalcing to say — and what the jury understood she was undertaking to say — was that if a case with evidence as substantial as the evidence in this case is, is not worthy of conviction, then no case brought under this statute is. And the evidence in this case was certainly abundant.”

We agree with the trial judge’s appraisal of the government’s counsel’s remarks and see no error in the statement.

Appellant complains of an instruction given by the Court on the credibility of witnesses, including the defendant. We have examined the instruction and feel that it is not an incorrect statement of the law.

Appellant complains further that the Court failed to give the following instruction offered by the defendant:

“The failure of the Government to produce a material witness where circumstances establish that such witness is available to the Government and not available to the defendant gives rise to an inference that the reason that the Government is not producing said witness is because the testimony of such witness would be adverse to the Government’s contentions.”

Appellant discusses this matter for some twenty pages in its brief. A short answer to the defendant’s argument is that the person defendant is referring to (one Bobby Hawkins) was not in any sense a material witness. The government produced no testimony that such a witness was present at any of the occasions upon which the narcotics were purchased or discussed. The defense testimony was merely that Bobby Hawkins had introduced the government agent Farrington to the appellant. However, there is no testimony, even by the defendant, that any transactions occurred at that time which were relied upon by the government in the proof of either of the counts of the sale of narcotics against the appellant. There are many other objections that could be leveled at the offered instruction which we do not deem necessary to discuss, in view of our statement above as to the materiality of the testimony.

We would like to point out that in this case counsel was appointed by the Court to defend the appellant. Not only did counsel ably represent the appellant in court before the jury and later upon motion for new trial, but also in this court counsel has prepared an opening brief of 155 pages, together with a closing brief of 28 pages, and has ably presented oral argument in this court. All points that could be raised in the appellant’s favor have been carefully and meticulously set out in the briefs and in oral argument, and counsel is to be commended for their industry in this matter. Undoubtedly they have been constantly conscious that appellant faces a long sentence.

However, after careful examination of all the points raised in defendant’s behalf, we find nothing to justify a reversal of the case. As the trial court judge stated at the time of the motion for a new trial, the evidence of the guilt of the defendant was abundant.

Judgment affirmed.

1 . (1-A) “The United States does have a right to govern imports and imported things. Therefore, the particular statute under which this offense is charged is one relating to imported heroin, and the jury must find that the heroin was imported in order to justify a conviction. But that is not too difficult a question, because we have presumptions in our law.”

(1-B) “A presumption is simply the acceptance of a certain state of affairs as being true until and unless there be evidence which shows that it is not true. It is an inference which the law directs be drawn from certain facts. And it is presumed that since heroin cannot be lawfully manufactured in the United States, and there is strict narcotic control, and that any heroin found in the United States has been imported, since heroin is a subject of lawful manufacture in some nations of the world, but not here, hence, if you believe that the substance which has been introduced into evidence is, in fact, heroin, there is a presumption that it was imported heroin. It makes no dif-forenco whether the defendant knew it was imported or not. But it must, in fact, have been imported. You start out with the presumption that it was imported, if you believe it was heroin, and look to the evidence to see whether the evidence explains that it was not an imported heroin, and you look to the evidence in this lawsuit.”

(1-C) “Now, the presumption to which I have referred, that heroin is imported heroin, is particularly important in the light of this part of the statute:

“ ‘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.’ ”

(1 — D) “Now, if the narcotic drug were one of the kind mentioned in the statute, for which there are proper possessions, under a prescription or something of that nature, then the defendant may explain it away. There is no explanation in the United States for the possession of heroin, except that one is a law enforcement officer or a customs agent engaged in the seizure or suppression of it, or an officer of a court holding it in custody for the purposes of trial or destruction.”

(l-E) “As I have told you before, it is necessary that the heroin be imported in order for the jury to convict in a case of this character, but it is not necessary that the defendant know that it was imported.”

(1-F) “In order for there to be a conviction in a case of this character it is necessary there be proof there actually was a sale. There is no presumption there was a sale. You look to the evidence to determine whether there was or was not a sale. The presumption comes into play only if the defendant is shown by the evidence to have had possession of the narcotic substance, if you find it to have been such.”

(1-G) “Now, possession is sometimes actual, as where a person holds a thing in his hand. Possession in other instances is constructive, as where a person has dominion and control ever a thing, having immediate ability to produce, handle or deal with it, but does not actually have it in his own hand.”

(1-H) “Possession must be a knowing, wilful possession. No one is to be held to possess a thing, within the meaning of this law, if he doesn’t know what he possesses. It is a knowledgeable willing possession which is intended by law.”

(1-1) “The presumption that if heroin is found in the United States it is imported heroin is not conclusive. It is a presumption, that is, it is a circumstance which you are to consider as so, if it is proved that the heroin was here and in the possession of the defendant, but it is not necessarily conclusive that this be the case. This lawsuit is open to the insistence by the defendant that this was, in fact, domestic and not imported heroin.

“If you find from the evidence that this heroin involved in this case, if you believe it to be heroin, if you find that it actually is heroin, if you believe from the evidence in the case that it was manufactured in the United States, then there is no case against this defendant.

“However, you must look to the evidence in this connection. The lawsuit must be decided upon tHe evidence before you and not upon surmise or conjecture.”

2 . “Possession of another person, of tile narcotic drug charged in the indictment, cannot be deemed possession in the defendant unless a conspiracy is established between sueli person and the defendant.

“The mere fact, if it is a fact, that the defendant achieved a facilitation of sale or sale through a third person, acting as a simple intermediary or procuring agent, is not sufficient, at least in itself, to ascribe that person’s possession to the defendant, notwithstanding the possibility that such evidence, if found to exist by you the jury, might substantiate a participation in selling or facilitating a narcotic sale.”

3 . “Mrs. Bulgrin: Your Honor, I don’t like to interrupt counsel’s opening statement, but at this particular time it is apparent to the Government that counsel is arguing matters which pertain to matters of law, which were argued before this court and are not proper considerations for the jury, that is, the constitutional objection to the presumption which was resolved against the defendant.

“The Court: He isn’t arguing the constitutionality of it.

“Mr. James Cantillon: I surely don’t mean to be.

“The Court: He says he is going to prove that. If he doesn’t prove enough it doesn’t mean a thing.

“Mrs. Bulgrin: The matters of fact, alleged fact he is talking about, would only apply to the question of the constitutional objections which he has already made and would not be matters which a jury would consider, your Honor, under the Cop-perthwaite case.

“The Court: Under what case?

“Mrs. Bulgrin: This case we had discussed on the motion, your Honor. Cop-perthwaite [Copperthwaite v. United States, 6 Cir.], 37 F.2d 846.

“Of course, that case involved these objections which counsel has already proposed to the court and relates to both the general question of the constitutionality of the presumption and the application of the presumption to this particular set of facts. And those matters, your Honor, would be merely facts which would be presented, if at all, outside of the presence of the jury, in connection with counsel’s previous motion for judgment of acquittal and for dismissal.

“The Court: Maybe he is going to have a whole chain here with many links in it, and if so, he is entitled to describe each link.

“So far the opening statement has tended to be the description of one link in what might possibly be a chain; I can’t tell. He has the floor. I am going to let him continue.

“Mrs. Bulgrin: Very well, your Hon- or.