On Rehearing In Banc May 14, 1971.
WATERMAN, Circuit Judge:
The three appellants, together with Emilio Massu, were charged in a two count indictment with, first count, having violated and, second count, having conspired to violate the federal narcotics laws, 21 U.S.C. §§ 173, 174. After a jury trial all four were convicted on both counts. Each of the three appellants took the stand and testified. Massu remained silent. Massu, Gonzalez and Miranda received sentences of five years' imprisonment on each count, the sentences to be served concurrently, and Ovalle was sentenced to concurrent six
In large measure the resolution of the defendants' guilt or innocence depended upon whether the jurors believed or disbelieved the government witnesses, for each of the appellants denied any connection with or knowledge of the illegal narcotics transaction in which the government witnesses testified they had been engaged.
The government evidence, however, quite conclusively proved that appellants were criminally involved. The government evidence brought out the facts now recited.
On December 16, 1968 Ovalle approached one Carmelo Viera, an informant in the employ of the Federal Bureau of Narcotics, to discuss the sale of a kilogram of cocaine. Viera was interested in buying it. Ovalle's price was $9,000. Viera, having shown interest in making a purchase, was next introduced to Massu, who assured Viera that the cocaine offered for sale was "a hundred percent pure," having been, by Massu himself, personally brought into the United States from Chile. Massu also stated that he imported cocaine about once a month "as a seaman" and, if Viera wished, he could bring him more in the future. Later in the day, after meeting with federal narcotics agents, informant Viera again met with Ovalle and told him a customer had been found willing to buy the cocaine kilo.
On December 18, in the morning, Viera met Ovalle and told him that the buyer would be ready at three, and, at three, Viera introduced Ovalle to the buyer, John Lepore, a Bureau of Narcotics agent, who promptly showed Ovalle $9,000 in cash. Ovalle then told Lepore he would return with the drugs later in the day and left, Viera accompanying him. Ovalle and Viera then met with Massu, Gonzalez and Miranda and it was arranged by them to have Lepore consummate the purchase at a hotel room where the imported cocaine was kept. Massu and Gonzalez were left near the hotel, and Viera, Miranda and Ovalle proceeded to where Lepore was waiting. On the way Miranda told Viera in Ovalle's presence that she could get an additional five kilograms of cocaine by the end of January. Viera, Miranda and Ovalle directed Lepore to the hotel. Once the defendants, informant Viera, and agent Lepore had gathered in the hotel room, Gonzalez, at Massu's direction, removed a shopping bag from a closet and placed it on one of the beds. Massu then removed two cellophane bags of equal size, which upon later inspection were discovered to contain approximately 1,028 grams (over 2 1/5 pounds) of cocaine, and handed one of the bags to the agent. Agent Lepore indicated he could not see through the wrapping, so Massu split the seal with a razor to facilitate a closer examination of the merchandise. While Lepore was inspecting the bag's contents Massu, Ovalle and Miranda fingered the crystalline substance and assured Lepore that the cocaine was pure and of good quality. Shortly thereafter the defendants were arrested. A search followed and a black leather suitcase with a false bottom was discovered. In it were an Argentinian Airlines ticket receipt reflecting a flight from South America to New York by Miranda, Miranda's Chilean Passport showing that she arrived in New York on November 27, 1968, and a Braniff Airways ticket receipt reflecting a flight from South America to New York by Gonzalez. These items were admitted into evidence. The four defendants are Chilean nationals. Both women testified to having traveled to New York in November, Miranda on the 27th, her first trip, and Gonzalez, who had previously been to New York, on the 24th to join Emilio Massu, her common law husband of 27 years.
Motions for a directed verdict of acquittal were made at the close of the Government's evidence and at the close of all the evidence. These motions were denied. A post-verdict motion to set aside the jury's verdict as having been
Appellants challenge, on Fifth Amendment grounds, the inferences of illegal importation and knowledge of illegal importation which are allowed by the statute once "unexplained" possession of cocaine is established.
The trial here was prior to the decision in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), and the charge was a proper one under the then existing law. In Turner, however, the Court ruled that possession of relatively small amounts of cocaine (in Turner's case less than one gram, i. e., substantially less than one-thousandth of the quantity here illicitly offered for sale) did not meet the constitutional test of the statutory presumption, saying:
The Turner Court went on to state, however, that possession of much larger amounts of cocaine than Turner had, amounts which it is claimed are too large to have been removed from legal channels and which must therefore have been smuggled, presented an issue better postponed "to another day, hopefully until the facts are presented in an adversary context in the district courts." Id. at 419, n. 39, 90 S.Ct. at 654.
Although in Turner the Government conceded and the Court found that "thefts [of cocaine] from legal sources, though totaling considerably less than the total smuggled, are still sufficiently large to make the § 174 presumption invalid as applied to Turner's possession of cocaine [less than one gram]," we reach a contrary conclusion where possession of more than one kilogram of cocaine is involved.
Cocaine is legally produced in significant quantities for medical use, but a relatively small proportion of this cocaine is stolen from legitimate sources in the United States and thereby might find its way into illicit drug traffic;
The government evidence, if believed, established that the defendants knew that the kilo they possessed had been imported. Nevertheless, irrespective of that direct proof, the presumption of knowledge inferable from proof of possession is valid in this case.
In Leary v. United States, supra, a case involving a parallel statutory presumption as applied to a user of marijuana, the Court, after acknowledging that the presumption of knowledge could not be sustained "solely because of the assumed validity of the `importation' presumption," stated:
While the Leary Court decided that "it would be no more than speculation" to conclude "that even as much as a majority of possessors `knew' the source of their marijuana" and, therefore, struck down the "knowledge" presumption as applied to Dr. Leary, a user, we are dealing here with possessors of a different sort. This case does not deal with the majority of domestic cocaine possessors or with local residents suspected of being cocaine users and it does not deal with what such persons may "know" or "not know" of the sources of cocaine found in their possession. We are concerned here with Chilean citizens found in possession of a drug in an amount so large as to leave little doubt that it was smuggled, and we are confident that possessors of a kilogram of cocaine offering it for sale for $9,000 would be aware of the "high probability" that it was illegally imported unless they practiced a "studied ignorance to which [they were] not entitled." Persons who deal in large quantities of hard narcotics, as heroin and cocaine, are bound to discover, if they do not already know, that their product could not practically have derived from domestic sources. Cf. Turner v. United States, supra at 416, 417, and footnotes 29, 30, 34, 90 S.Ct. 642.
A second point, raised by appellant Ovalle, is that, as to him at least, he was never shown to be in possession, constructive or actual, of more than a tiny amount of the cocaine in question, and therefore Turner directly applies to him. We disagree. As previously pointed out, Ovalle was in the room when the sale of cocaine was consummated and he touched the substance by placing his fingers in one of the two bags containing the narcotics. It stretches credulity to suppose that Ovalle was only in possession of the amount of cocaine his fingers actually touched for he had physical "dominion and control" over all the contents of the container, at least during the moments he investigated the contents. As to the other bag of cocaine which lay on the bed a few feet away, it follows that Ovalle was equally as able as the others to pick up and examine its contents had the Narcotics Agent, acting as buyer,
A final point, raised by appellant Miranda, is that the trial court's instruction relating to defendants' "possession" of the cocaine in question failed to differentiate between actual or physical possession and constructive possession and Miranda was harmed thereby. This is an unusual point to be argued by a defendant; it is the prosecution that insists that the jury be informed as to the meaning of constructive possession, particularly in a case where physical possession is not proved. In the case at bar the evidence showed that Miranda and Ovalle physically possessed at one point at least half (one bag) of the total amount of cocaine involved in the sale, and because of their close association with the planning and mechanics of the narcotics sale and transfer and their ability actually to get their hands on the cocaine, a finding of constructive possession of the other half, which lay within easy reach on a bed in the hotel room, was warranted. There is absolutely no way that Miranda, or indeed any of the defendants, could have been prejudiced by the court's failure to distinguish between the two types of possession. In short, had the judge told the jury that it could find that a defendant was in possession of the cocaine within the meaning of the statute "even though [a defendant did] did not have physical custody, so long as [a defendant had] dominion and control over the narcotics," United States v. Baratta, 397 F.2d 215, 224 (2 Cir.), cert. denied, 393 U.S. 939, 89 S.Ct. 293, 21 L.Ed.2d 276 (1968), we cannot see, nor has appellant Miranda indicated, even a remote possibility that the jury's verdict may have been different. A more complete charge would have made it easier for the jury to conclude that the defendants possessed the narcotics in question.
IRVING R. KAUFMAN, Circuit Judge (dissenting):
While I can hardly fault my brother WATERMAN'S conclusion that defendants' cocaine must have been imported, I cannot persuade myself to follow in the majority's second crucial step and hold that Gonzalez, Miranda, and Ovalle must therefore have known that it was imported. Nor do I relish the prospect of facing a subsequent case, where the questions presented here must again be weighed in grams and ounces.
In Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the Supreme Court instructed us that the presumption of guilt permitted by 21 U.S.C. § 174 cannot be applied to defendants charged with possessing a small amount of cocaine. My brothers, however, attempt to bypass that holding by placing their reliance entirely upon that portion of Turner which upheld the § 174 presumption with respect to heroin — not cocaine.
I believe that this analogy, which admittedly offers its surface attractions, cannot withstand analysis. The Turner Court found that the defendant must have been knowledgeable about every facet of the heroin business, but not until Justice White had shown by painstaking elaboration that the Court was impelled to the conclusion that virtually all heroin in this country is imported. "To possess heroin is to possess imported heroin." 396 U.S. at 416, 90 S.Ct. at 652 (original emphasis). Even supported by so rare an absolute, it will be noted, the Court felt nonetheless constrained to concede that the question of knowledge was not then decided a fortiori. Rather, the Court reasoned, that while an "ordinary jury" may not be aware of the dearth of heroin produced here, common sense would not permit dealers in heroin to disclaim knowing the source of their livelihood.
Apart from a bare expression of self-confidence in its conclusion, the majority's authority for sustaining the presumption of knowledge in this case comprises this analysis, plus the observation that defendants are Chilean citizens. I am reluctant after Turner to permit a "presumption" of guilt in this cocaine case, absent some proof of defendants' knowledge. Mere attribution to them based on the refined, albeit acute, reasoning of the majority cannot overcome the Supreme Court's clear holding. In the absence of any evidence whatever, one simply cannot say in light of Turner, except by fiat, that dealers in cocaine — whether they are citizens of Chile, Canada or Timbuktu — do or do not know its source. I am as ready as not to surmise, absent some facts, that although many sellers know that much cocaine is produced in this country, they may not have the slightest idea what part of this is pilfered and in what size lots.
Moreover, I find the majority's opinion in this respect difficult to reconcile with the Supreme Court's implicit mandate last year in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), that such presumptions as that embodied in § 174 are tolerable only upon careful sifting of appropriate statistical information:
395 U.S. at 37, 89 S.Ct. at 1549.
At the very least, I believe that the jury and not this court, should have determined whether, without the use of the presumption, the astute comments of the majority concerning quantity, thefts of cocaine, and nationality, established knowledge of importation beyond a reasonable doubt. This is not my mandate, but Turner's and Leary's.
Since it is impossible to tell whether or not the jury relied on the statutory presumption, see United States v. Romano, 382 U.S. 136, 138-139, 86 S.Ct. 279, 15 L.Ed.2d 210 (1965), the instruction which included the presumption cannot be regarded as harmless error.
On Rehearing In Banc
Before LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS, ANDERSON and FEINBERG, Circuit Judges.
WATERMAN, Circuit Judge, with whom Chief Judge LUMBARD, and Judges MOORE, FRIENDLY, HAYS and ANDERSON join:
Each of the appellants, alleging an apparent conflict between the panel decision in this case affirming each of the convictions below,
The trial of these appellants was held and was concluded prior to the decision in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), and the instructions given the jury were proper ones under the then existing law. In Turner, however, the Court, although taking note of the fact that from 1963 through 1968, the amount of cocaine stolen from legal channels annually, an illegal possessor's only source of domestic cocaine, ranged from 2.8 to 6.2 kilograms, ruled that possession of relatively small amounts of cocaine (in Turner's case less than one gram) did not meet the constitutional test of the statutory presumption, saying:
However, in light of the facts above cited, the Turner Court went on to state in a footnote, fn. 39, that "sellers found with much larger amounts of cocaine than Turner had, amounts which, it is claimed, are too large to have been removed from legal channels and which must therefore have been smuggled," presented an issue better postponed "to another day, hopefully until after the facts are presented in an adversary context in the district courts." Id. at 419, n. 39, 90 S.Ct. at 654.
Both the present appeal and the appeal in Vasquez were presented to panels subsequent to the handing down of the opinion in Turner. The panel in Vasquez concluded that the language in Turner footnote 39 required an adversary hearing in the district court to resolve the issue of the rationality of the presumption. 429 F.2d at 618. Although we agree that such an adversary hearing might well elicit valuable statistical information, we do not interpret the Supreme Court's language to prevent appellate consideration of the issue upon facts adversarily presented to juries prior to Turner or to imply anything more than the "hope" that, should the issue of the presumption's rationality be raised on appeal, a full record would be available on the issue. Indeed, Turner itself indicates that, where adequate information is available for the taking of judicial notice, an appellate court should use such information.
Section 174 contains two presumptions. The first, the presumption of importation, permits a jury to infer the fact of
In Turner the Government conceded and the Court found that "thefts [of cocaine] from legal sources, though totaling considerably less than the total smuggled, are still sufficiently large to make the § 174 presumption invalid as applied to Turner's possession of cocaine [less than one gram]." Id. at 418-419, 90 S. Ct. at 653. However, by using the same statistics cited in Turner, and by using updated statistics as well, we reach the conclusion that the presumption of illegal importation is rationally valid where the possessor has possession of more than one kilogram of cocaine.
Cocaine is domestically legally produced in sufficient quantities for medical use, but a relatively small proportion of this domestically produced cocaine is stolen from legitimate sources in the United States so as theoretically to find its way into the domestic illegal drug traffic.
By our conclusion that the presumption of illegal importation under § 174 is valid where the possession of large quantities of cocaine is involved,
In Turner the validity of the presumption of knowledge of illegal transportation of cocaine necessarily fell when the presumption of illegal importation was held to have lacked a rational relationship to the amount of diluted cocaine possessed. But, with respect to one's possession of a specified narcotic drug, the validity of the presumption of its illegal importation does not necessarily imply the validity of the presumption that the possessor had knowledge thereof. In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), a case involving parallel statutory presumptions as applied to a user of marihuana, the Court, after acknowledging that the presumption of knowledge could not be sustained "solely because of the assumed validity of the `importation' presumption,"
The Leary Court decided that "it would be no more than speculation" to conclude "that even as much as a majority of possessors `knew' the source of their marihuana" and, therefore, the Court struck down the presumption of knowledge as applied to Dr. Leary. Id. at 53, 89 S.Ct. at 1557. The Turner Court, in addressing the presumption of knowledge as applied to heroin, reached an opposite conclusion; there the presumption was applied to Turner who possessed 275 glassine bags of heroin and who the Court concluded was a distributor of that drug. 396 U.S. at 416-417 and n. 30, 90 S.Ct. 642.
In the original panel decision in this case the panel noted that there was substantial evidence that the appellants knew that the cocaine they were selling was illegally imported,
Inasmuch as the amount of cocaine stolen from domestically produced sources is but a significantly minor quantity in comparison to the amount of cocaine illegally imported, and inasmuch as the average theft is only nine grams (see footnotes 7 and 8, supra), the creation of a rebuttable inference that, in the absence of explanation, the possessor of a large quantity of cocaine knew it was imported is sufficiently rational to withstand all constitutional attacks. The discussion in Turner with respect to heroin, 396 U.S. at 416-417, 90 S.Ct. 642, appears to us to be almost directly in point.
Two other contentions, raised by appellants Ovalle and Miranda respectively on the initial appeal, are not pressed on this rehearing, and we fully accept the panel's prior disposition of these points.
IRVING R. KAUFMAN, Circuit Judge (dissenting):
For the reasons stated in my dissent from the panel opinion in this case, which the majority of the in banc court today affirms, I continue to believe that
FEINBERG, Circuit Judge, with whom J. JOSEPH SMITH, Circuit Judge, joins (dissenting):
Since I believe that the proper course to follow here is to remand this case to the district court for an adversary hearing on the validity of the presumptions in 21 U.S.C. § 174, I respectfully dissent.
In Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), the Supreme Court held that possession of less than one gram of cocaine was insufficient to warrant the presumptions of section 174 "either that the cocaine that Turner possessed came from abroad or that Turner must have known that it did." Id. at 419, 90 S.Ct. at 654. Accordingly, it reversed Turner's conviction on a cocaine count. However, it postponed consideration of whether the same section 174 presumptions might be valid as applied to a large amount of cocaine, "hopefully until after the facts [had] been presented in an adversary context in the district courts." Id. at 419 n. 39, 90 S.Ct. at 654. Some six months later, the issue came before this court in a case tried before the Turner decision and involving 831 grams of cocaine, United States v. Vasquez, 429 F.2d 615 (2d Cir. 1970). At that time, we followed the Court's suggestion and sent the case back to the district court for an adversary hearing on a full record on the rationality of the presumptions.
Despite the suggestion of the Supreme Court and the prior action of this court, the majority in this case now proceeds to decide these extremely important issues upon a record made before the decision in Turner and therefore devoid of the facts necessary to an informed determination. Instead the majority relies upon "evidence" which has not truly been subjected to the adversarial process. I emphatically dissent from this course. I continue to believe that the Court's "hope" should be our command, unless there is some good reason for disregarding it. I see none, and the majority opinion advances none. To the contrary, there are good reasons for following the Court's suggestion. As to the cocaine transaction in 1968, the year involved here, the majority refers to no more relevant information about importation or theft from domestic sources than the court had in Turner, when it refused to decide the issue presented here. Nor is the doubt expressed in Turner relieved by reference by the majority in this case to statistics of 1969 and 1970. Moreover, on this record, the presumption of defendants' knowledge of illegal importation of the cocaine is particularly vulnerable, as Judge Kaufman's dissent to the original panel opinion pointed out.
It may be that upon a proper record the majority would be correct in concluding that the presumptions are valid, at least as applied to one kilogram or other "large quantities" of cocaine. But these issues should be decided after an adversary hearing in the district court on the validity of the presumptions. I would remand for such a hearing.
Submitted for Gonzalez on March 25, 1970.
Transcript (T.) at 30. Elba Miranda told Viera the next day (December 18), "Well, I can get you five kilos by the end of January." T. at 36. Airline tickets to New York from South America indicating the recent arrival of Miranda and Gonzalez were introduced into evidence as well as Miranda's Chilean passport. T. at 102-105, 128-131. This evidence was found in the hotel room in a black leather suitcase with a false bottom which appeared to have been used in transporting the cocaine. There was also substantial evidence to indicate that all the defendants were involved in the joint venture and that the knowledge of each could be imputed to the others.