United States v. Martin Gonzalez Curbelo

Fifth Circuit

United States v. Martin Gonzalez Curbelo

423 F.2d 1204, 1970 U.S. App. LEXIS 9901

CourtCourt of Appeals for the Fifth Circuit

DecidedApril 8, 1970

Docket27282_1

StatusPublished

Cited by8 cases

This text of 423 F.2d 1204 (United States v. Martin Gonzalez Curbelo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Martin Gonzalez Curbelo, 423 F.2d 1204, 1970 U.S. App. LEXIS 9901 (5th Cir. 1970).

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Opinion

PER CURIAM:

Curbelo, appealing from conviction of violating 26 U.S.C.A. § 174 under a single count charging sale of heroin, raises the constitutionality of the § 174 presumption of knowledge. This issue has been determined by Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).

The material sold by appellant was represented by him to be heroin. An agent ran a Marquis Reagant test on a sample and reported to the buying agent that the results were positive, and the buyer then paid the appellant. Appellant contends that his motion for judgment of acquittal, made at the conclusion of the government’s case and renewed at the conclusion of all the evidence, should have been granted because the evidence did not reveal the presence of sufficient heroin in the material sold by Curbelo.

But the material was sent to a government chemist who gave it microscopic, chemical and physical examination and found it contained heroin hydrochloride, quinine and corn starch. On cross examination the chemist acknowledged that no quantitative tests were performed, only qualitative analyses, and he was not able to say what percentage of the material was heroin and he admitted that it might be just a trace or a scintilla. The chemist described the detailed testing procedures which were employed, and which did reveal the presence of heroin. The prosecution need not prove the performance of a quantitative test, so long as there is sufficient evidence to allow the jury to find beyond a reasonable doubt that the substance did in fact contain heroin. United States v. Haynes, 398 F.2d 980 (2d Cir. 1958). There was such evidence in this case.

Affirmed.

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PER CURIAM:

Curbelo, appealing from conviction of violating 26 U.S.C.A. § 174 under a single count charging sale of heroin, raises the constitutionality of the § 174 presumption of knowledge. This issue has been determined by Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).

The material sold by appellant was represented by him to be heroin. An agent ran a Marquis Reagant test on a sample and reported to the buying agent that the results were positive, and the buyer then paid the appellant. Appellant contends that his motion for judgment of acquittal, made at the conclusion of the government’s case and renewed at the conclusion of all the evidence, should have been granted because the evidence did not reveal the presence of sufficient heroin in the material sold by Curbelo.

But the material was sent to a government chemist who gave it microscopic, chemical and physical examination and found it contained heroin hydrochloride, quinine and corn starch. On cross examination the chemist acknowledged that no quantitative tests were performed, only qualitative analyses, and he was not able to say what percentage of the material was heroin and he admitted that it might be just a trace or a scintilla. The chemist described the detailed testing procedures which were employed, and which did reveal the presence of heroin. The prosecution need not prove the performance of a quantitative test, so long as there is sufficient evidence to allow the jury to find beyond a reasonable doubt that the substance did in fact contain heroin. United States v. Haynes, 398 F.2d 980 (2d Cir. 1958). There was such evidence in this case.

Affirmed.

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Bluebook (online)

423 F.2d 1204, 1970 U.S. App. LEXIS 9901, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-martin-gonzalez-curbelo-ca5-1970.

Opinion

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