Edward Lee Brown v. United States

Appellant was convicted by a jury in the United States District Court for the Northern District of California of two counts of selling and concealing heroin in violation of 21 U.S.C. § 174 . He appeals.

The sufficiency of the evidence is not challenged; the record amply supports the jury finding.

The second paragraph of 21 U.S.C. § 174 provides:

Appellant asserts that the above statute is unconstitutional and that the giving of an instruction based thereon violated his Fifth Amendment privilege against self-incrimination. The court’s instruction is set out in the margin. Appellant reasons that since he elected not to testify in his own behalf, the affirmative duty to explain his possession of the narcotics imposed by the statute and the instruction constitutes comment on his failure to testify.

It is, of course, impermissible for a court to comment on a defendant’s failure to testify. 18 U.S.C. § 3481 . Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 . “[T]he test is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.”…