BREITENSTEIN, Circuit Judge.
Appellant-defendant Griego appeals from a judgment entered on a jury verdict finding him guilty on all four counts of an indictment charging the receipt, concealment, and sale of unlawfully imported narcotic drugs in violation of 21 U.S.C.A. § 174. The sole ground urged
So far as pertinent Section 174 reads:
Evidence for the government was that defendant told a federal narcotics agent that he could obtain heroin for the agent and did so on four occasions with money furnished by the agent. On each occurrence the defendant withheld some of the heroin to use in the satisfaction of his own addiction. The defendant took the stand in his own defense, admitted the transactions in question, and denied knowledge of the unlawful importation of the heroin.
In his instructions the trial judge, after referring to the second paragraph of Section 174, told the jury that denial of knowledge of unlawful importation, standing alone, was not a defense and that the only sufficient explanation was one which convinced the jury that the defendant came into possession of the heroin legally.
The constitutionality of Section 174 has consistently withstood challenge.
The essential elements of the crime charged are: (1) receipt, concealment, or sale of heroin by the defendant; (2) unlawful importation of the heroin by some one; and (3) the defendant's knowledge of such unlawful importation.
If, as the government contends, the satisfactory explanation provision of that second paragraph requires evidence of lawful possession which cannot be made because heroin is contraband, then proof of knowing possession
The acceptance of the government's position would make it impossible for a defendant, in a case such as this, to controvert one of the essential elements of the crime. The due process implications are apparent. To avoid constitutional problems the second paragraph of Section 174 must not be construed as denying to a defendant the right to contest an essential element of the crime with which he is charged. Such we believe to be the effect of holdings of the Supreme Court. In Harris v. United States,
The defense here is that the defendant had no knowledge of the unlawful importation of the heroin. The subjective character of knowledge is such that the statement of the individual accused of having particular knowledge is substantial evidence. At the same time it is probable that many narcotic offenders can testify truthfully that they had no knowledge of unlawful importation. Those so engaged are not concerned with the primary sources of the contraband commodity. It is a reasonable inference from the testimony of the defendant in this case that he neither knew nor cared to know the source of the heroin. While negligence is not sufficient to charge a person with knowledge, one may not wilfully and intentionally remain ignorant of a fact, important and material to his conduct, and thereby escape punishment.
This conforms to the general rule that in a criminal case instructions are erroneous if they exclude from jury consideration an affirmative defense as to which evidence has been received.
This disposition of the case does not mean that upon retrial the court should exclude from the instructions all reference to the second paragraph of Section 174.
Reversed and remanded for a new trial.
"* * * So, if you find beyond a reasonable doubt that the defendant so had possession, knowingly and fraudulently of the heroin described in the indictment, or any substantial portion thereof, then you will be warranted in giving effect to the statutory presumption, and you may presume that the narcotic had been imported and brought into the United States contrary to law, and you may presume that the defendant knew it had been brought into the United States unlawfully. And in such cases, it is not necessary that the Government otherwise prove the unlawful importation or that the defendant knew the heroin was unlawfully imported.
"Now, this presumption would follow as a matter of law, if you are satisfied beyond a reasonable doubt that the defendant had possession of the heroin as I have defined such possession to you.
"Now, this presumption may be overcome if the defendant explains to your satisfaction that the possession of the heroin came to him legally. In the absence of an explanation by the defendant which satisfies you that the defendant did come into possession of the heroin legally, that is, in accordance with law, you are authorized to convict the defendant. The fact, if it be a fact, that the defendant did not know that the heroin was imported or brought into the United States contrary to law, is not standing alone a defense if you find from the evidence beyond a reasonable doubt that the defendant had possession of the heroin."