United States v. Phillip Andrew Scott

425 F.2d 55, 1970 U.S. App. LEXIS 10421

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 6, 1970
• Docket: 23119_1
• Status: Published

Opinions

HUFSTEDLER, Circuit Judge:

Appellant Scott appeals from his conviction for a violation of 21 U.S.C. § 176a.¹ Scott, along with two codefendants, was indicted on January 31, 1968, upon a charge that on October 26, 1967, he and his eodefendants had “knowingly received, concealed and facilitated the transportation and concealment” of marihuana that they knew “theretofore had been imported and brought into the United States contrary to law.” A jury found that appellant and his codefendant Walker were guilty as charged; a mistrial was declared as to codefendant Rico.

Scott contends that: (1) the inclusion in the instructions to the jury of the presumption from section 176a, held unconstitutional in part in Leary v. United States (1969) 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57, compels reversal of his conviction; and (2) section 176a is unconstitutional because it is an indirect enforcement of the Marihuana Tax Act, 26 U.S.C. § 4741 et seq., held unconstitutional as applied in Leary. We uphold his first contention and reject his second contention. We sustain the constitutionality of section 176a (other than the presumption) as applied to Scott. We consider his contentions seriatim.

In Leary, the Supreme Court held unconstitutional that part of section 176a permitting the jury to presume or to infer that the defendant knew that marihuana had been illegally imported from proof that he had been in possession of marihuana, because there was no “substantial assurance that one in possession of marihuana is more likely than not to know that his marihuana was illegally imported.” (395 U.S. at 46, 89 S..Ct. at 1553) Under such circumstances there is no “rational connection between the facts proved and the fact presumed,” and the statutory presumption pro tanto fails the constitutional test of Tot v. United States (1943) 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519.

Before we reach the merits of Scott’s presumption argument, we dispose of three preliminary questions: (1) Did Scott’s failure to except to the instruction embodying the presumption foreclose him from here claiming error in the instruction? (2) Did Scott’s failure to raise the same question upon a motion for acquittal or upon motion for a new trial foreclose him from raising it on appeal? (3) Is the Leary ruling on the unconstitutionality of the presumption retroactive?

The general rule is that a claim of error in a jury instruction is waived, unless the defendant excepts to the instruction before the jury retires to consider its verdict. (Fed.Rules Crim. Proc. 30; Lopez v. United States (1963) 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462.) The purposes of the rule are to enable the district court to correct a defect, if any, in the instruction and to prevent a defendant from hedging the risk of an adverse verdict by inviting error. (8A J. Moore, Federal Practice ¶[ 51.02 (2d Ed. 1968).) At the time of Scott’s trial, there was a solid wall of circuit court authority, including our own, sustaining the presumption against constitutional attack. (E. g., Caudillo v. United States (9th Cir. 1958) 253 F.2d 513, cert. denied sub nom. Romero v. United States (1958) 357 U.S. 931, 78 S.Ct. 1375, 2 L.Ed.2d 1373; Costello v. United States (9th Cir. 1963) 324 F.2d 260, 263-264, cert. denied (1964) 376 U. S. 930, 84 S.Ct. 699, 11 L.Ed.2d 650.) An exception would not have produced any results in the trial court. Under these circumstances were we to insist that an exception be taken to save the point for appeal, the unhappy result would be that we would encourage defense counsel to burden district courts with repeated assaults on then settled principles out of hope that those principles will be later overturned, or out of fear that failure to object might subject counsel to a later charge of incompetency. We conclude that Scott’s failure to except did not waive the point on appeal.² (Kohatsu v. United States (9th Cir. 1965) 351 F.2d 898, 901 n. 4, cert. denied (1966) 384 U.S. 1011, 86 S.Ct. 1915, 16 L.Ed.2d 1017; United States v. Lopez (2d Cir. 1969) 414 F.2d 272; Fed. Rules Crim.Proc. 52(b); cf. United States ex rel. West v. LaVallee (2d Cir. 1964) 335 F.2d 230.)

On a parity .of reasoning we conclude that Scott did not lose his point by neglecting to raise it by motion. The point would have been no more salable cast as a motion than it would have been as an exception. Moreover, we must be just as hesitant to dismiss a constitutional question for a failure to observe a formality that did not affect the course of trial as we are to seize upon a trivial error, formally preserved, to overturn a conviction.

Upon this court’s direction, the parties filed supplemental briefs upon the question whether or not the Leary decision, invalidating part of the section 176a presumption, applies to cases then pending on direct appeal.³

The extent to which a “new” constitutional rule affecting criminal trials will be given restrospeetive application is determined by measuring the rule against three criteria: “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (3) the effect on the administration of justice of a retroactive application of the new standards.” (Stovall v. Denno (1967) 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199.) “Foremost among these factors is the purpose to be served by the new constitutional rule.” (Desist v. United States (1969) 394 U.S. 244, 249, 89 S,Ct. 1030, 1033, 22 L.Ed.2d 248.) Heavy weight should be given the last two factors — the extent of reliance and consequent burden on the administration of justice — “only when the purpose of the rule in question [does] not clearly favor either retroactivity or prospectivity.” (Desist v. United States, supra, 394 U.S. at 251, 89 S.Ct. at 1035.) Accordingly, where the rule is fashioned to correct a serious flaw in the fact-finding process and therefore goes to the basic integrity and accuracy of the guilt-innocence determination, retroactive effect will be accorded. (E. g., McConnell v. Rhay (1968) 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2; Roberts v. Russell (1968) 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100; Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; Jackson v. Denno (1964) 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Griffin v. Illinois (1956) 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; see Linkletter v. Walker (1965) 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, 639.) Retroactivity has been denied or limited only in instances where the rule does not go to the fairness of the trial, or where the flaw in the fact-finding process is either of secondary importance or of infrequent occurrence. (E. g., Desist v. United States, supra; Stovall v. Denno, supra; Tehan v. United States ex rel. Shott (1966) 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453; Johnson v. New Jersey (1966) 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Linkletter v. Walker, supra; Williams v. United States (9th Cir. 1969) 418 F.2d 159.).

The invalidated portion of the presumption was an integral part of the fact-finding process. The use of the presumption affected the integrity of the determination of guilt, and its use was neither secondary in importance nor infrequent in occurrence. The Government’s use of the presumption permitted it to bypass proof of substantive elements of the offense, thus creating a “serious risk that the issue of guilt or innocence may not have been reliably determined.” (Roberts v. Russell, supra, 392 U.S. at 295, 88 S.Ct. at 1922.) The intimacy of the connection between the use of the presumption and the finding of guilt is dramatically evident in a case in which the Government relied upon the presumption alone to prove knowledge of illegal importation. But the presumption is no less inextricably bound to the finding of guilt when it is added to independent evidence of knowledge and the jury is permitted to decide guilt either upon the presumption, or upon the independent evidence, or both.

Neither the fact that there has been substantial reliance on the validity of the presumption nor the fact that retrospective application of Leary may affect numerous cases justifies limiting its retroactive application. The premise of Leary is that the presumption is, in part, factually unsupportable. It follows that of those convicted of violating section 176a by the use of the presumption, many are innocent of that crime. There is no legitimate interest in refusing relief to those who were not proved guilty, whether that relief is sought by direct or by collateral attack. When the integrity of the fact-finding process is at stake, it is of no consequence that an examination of that process is inconvenient, or that many, rather than a few, convicted persons have been subjected to that process.

We conclude that the decision in Leary partially invalidating the presumption is fully retroactive.

Because Scott’s case was submitted to the jury on alternative theories, one of which was the constitutionally invalid presumption, the conviction must be set aside,⁴ unless the giving of the instruction under the circumstances of this case was harmless beyond a reasonable doubt. (Harrington v. California (1969) 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.)

The evidence, independent of the presumption, tending to prove that the marihuana had been imported from Mexico and that Scott knew about its illegal importation was as follows: On the evening of October 26, 1967, a federal narcotics agent, Gordon, met Scott's codefendant Walker to complete a prearranged sale of marihuana to Gordon. The two men went to Scott’s apartment to pick up the marihuana. Scott admitted them into his apartment. According to Gordon’s testimony, Walker asked Scott if the marihuana was there, and Scott replied that it was on its way and that he anticipated delivery in about 20 minutes. Then, said Gordon:

“Mr. Scott stated that if he could rent one more apartment on the ground floor, that this would give him privacy for loading and unloading cars. He stated that he had sold used lumber to one of the biggest used lumber dealers in Mexico, and that this person had told him that he could have anything he wanted. That he would send him a hundred a week.

“I then stated that that’s not very much stuff, and Mr. Scott said ‘That’s on consignment.’ * * * ”

Gordon also testified that Scott had told him that Scott had a source of supply in Mexico for 100 kilos a week.

Shortly after those conversations, Gordon said, Walker and Scott left him alone. He heard some bumping, “like somebody bringing something heavy up the steps.” Gordon went into a side bedroom and saw Walker and codefendant Rico standing by a bed on which were some kilo bricks of marihuana. A few minutes later Scott entered the room carrying a trunk. Scott opened the trunk and Walker, Rico, and Scott unloaded 50 packages of marihuana from it.

Rico and Scott each denied any complicity in the transaction. Rico blamed Scott, and Scott blamed Rico. Each denied that he knew that the substance in the packages was marihuana. Scott denied having the quoted conversations with Gordon.

An expert witness for the Government, who had examined the marihuana taken from the trunk, testified that in his opinion the marihuana came from Mexico. His opinion was based on the nature of the packaging, the size of the bricks, and the unmanicured condition of the marihuana.

The evidence of Scott’s knowledge of illegal importation was not overwhelming. Primarily the Government’s proof rested on Gordon’s testimony that Scott had told him that he had a Mexican source. Scott flatly contradicted Gordon. The question was thus one of credibility. Did the jury reach that credibility question after it had been effectively told that it need not do so? Would the jury have decided that Scott was lying when he denied those conversations, if it had never heard the presumption? No sure answers to those questions can be found in the record. We therefore cannot conclude that the error was harmless beyond a reasonable doubt. (Compare Bollenbach v. United States (1946) 326 U.S. 607, 614-615, 66 S.Ct. 402, 90 L.Ed. 350; Note, “Harmless Constitutional Error” (1967) 20 Stan.L.Rev. 83, 89.)

That conclusion compels a reversal of Scott’s conviction. We must nevertheless reach Scott’s second constitutional contention, because the question must be resolved before retrial.

Scott contends that section 176a is unconstitutional because it violates his Fifth Amendment privilege against self-incrimination. He reasons that none of the acts with which he was charged — receiving, concealing, and transporting marihuana — is a crime unless the marihuana was imported “contrary to law,” that the only law to which importation can be “contrary” is the Marihuana Tax Act, held unconstitutional Leary, and that section 176a is thus an indirect enforcement against him of the Marihuana Tax Act. We reject each of his contentions.

The words “contrary to law” mean “contrary to any existing, applicable law.” (Callahan v. United States (1932) 285 U.S. 515, 517, 52 S.Ct. 454, 455, 76 L.Ed. 914; Olais-Castro v. United States (9th Cir. 1969) 416 F.2d 1155, 1158 n. 8.) In the context of section 176a, the reference is to any existing law of the United States regulating the importation of merchandise, including marihuana,⁵ for violation of which a penalty is imposed. Those existing laws include the Marihuana Tax Act, the Customs Inspection statutes, 19 U.S.C. §§ 1461 and 1462, and the provisions of section 176a itself relating to smuggling or clandestinely introducing marihuana. (See 1956 U.S. Code Cong. &-Adm.News, pp. 3276, 3279.) Nothing in Leary or United States v. Covington (1969) 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94, or their predecessors, Marchetti v. United States (1968) 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States (1968) 390 U.S. 62, 88 S.Ct. 709, 19 L. Ed.2d 906; Haynes v. United States (1968) 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, suggests that the assertion of the privilege against self-incrimination would be a defense to a prosecution for smuggling or a defense to a prosecution for violating the general customs laws.

Moreover, nothing in Leary or its antecedents provides sustenance for Scott’s claim that he cannot be prosecuted for receiving, concealing, or transporting marihuana that had been imported in violation of the Marihuana Tax Act. Neither Leary nor Covington held that the Marihuana Tax Act was unconstitutional on its face. Both cases held that the Act could not be constitutionally applied to a defendant, charged with violating the Act, who has made a timely assertion of his privilege against self-incrimination and who has not waived the privilege. (See also Minor v. United States (1969) 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283.)

The privilege is purely personal. No one can successfully assert as a defense to his prosecution the violation of another’s privilege against self-incrimination. (Rogers v. United States (1951) 340 U. S. 367, 71 S.Ct. 438, 95 L.Ed. 344; Howard v. United States (9th Cir. 1968) 397 F.2d 72, 74; cf. Murray v. United States (9th Cir. 1968) 403 F.2d 694, 697.)

Section 176a did not require Scott to register or to pay any tax. His prosecution did not in any way depend upon a successful prosecution of the person or persons who imported the marihuana in violation of the Marihuana Tax Act, or any other law. (Cf. Marshall v. United States (9th Cir. 1969) 409 F.2d 925.) His attack on the constitutionality of section 176a is therefore unfounded.

Scott’s remaining two contentions require no discussion. Both of them relate to matters that will not recur on retrial.⁶

The judgment is reversed.

1 . Section 176a provides, in pertinent part: “[Wlhoever, knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law, or smuggles or clandestinely introduces into the United States marihuana which should have been invoiced, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such marihuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or whoever conspires to do any of the foregoing acts, shall be imprisoned not less than five or more than twenty years * * *.

“Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.”

2 . Leary did not except to the instruction he later challenged successfully, but he did raise the point in his motion for a new trial. Leary v. United States, supra, 395 U.S. at 32, 89 S.Ct. 1532.

3 . Scott’s opening brief relied heavily upon counsel’s prediction of the outcome of Leary which at that time was pending and undecided by the Supreme Court. Leary had not been decided when the briefing was first concluded, but the opinion was handed down shortly before the ease was first argued to the panel.

4 . “It has long been settled that when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that the conviction be set aside. See, e. g., Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).” Leary v. United States, supra, 395 U.S. at 31-32, 89 S.Ct. at 1545.

5 . We express no opinion on the question whether drugs other than marihuana are “merchandise.’

6 . The contentions concerned claimed error in seating a juror initially excused for cause and claimed error in defining “concealment” to the jury by the inclusion of reference to the Marihuana Tax Act.