United States v. Phillip Andrew Scott

425 F.2d 55 UNITED STATES of America, Appellee, v. Phillip Andrew SCOTT, Appellant. No. 23119. United States Court of Appeals, Ninth Circuit. March 6, 1970. Joel W. H. Kleinberg (argued), Los Angeles, Cal., for appellant. David Fox (argued), Asst. U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee. Before CHAMBERS, BARNES, HAMLEY, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, CARTER, HUFSTEDLER, WRIGHT, KILKENNY and TRASK, Circuit Judges. HUFSTEDLER, Circuit Judge: 1 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 codefendants 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. 2 Scott contends that: (1) the inclusion in the instructions to the jury of the presumption from section 176a, held…

Appellant Scott appeals from his conviction for a violation of 21 U.S.C. § 176a. 1 Scott, along with two codefend *57 ants, 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…

(concurring and dissenting).

I concur in the majority opinion only to the extent that 21 U.S.C. § 176a, aside from the presumption, is not constitutionally invalid. Otherwise, I join in what has been written by Judge Trask, and joined by Judge Carter.

Moreover, I would add another ground for affirmance. Implicit in Leary, as I analyze that case, is a clear cut indication that the result would have been different had it not been for the fact that a valid objection had been taken in the trial court. I quote from the opinion:

Here, as distinguished from Leary, the appellant failed to note an objection or exception of any kind to the presumption instruction, or otherwise challenge the validity of the statutory presumption. Rule 52(b), F.R.Crim.P., permits, but does not require, the Court of Appeals to recognize plain error. A discretion is lodged in the appellate court. On Lee v. United States, 343 U.S. 747 , 749-750 n. 3, 72 S.Ct. 967 , 96 L.Ed. 1270 (1952). Although the substantive law enunciated in On Lee has been under attack in recent years, its legal principles have thus far withstood the onslaught. Garrett v. United States, 382 F.2d 768, 772 (9th Cir. 1967); Lopez v. United…

with whom

I am of the view that, under the circumstances of this cáse, the Leary error found by the majority here was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250 , 89 S.Ct. 1726 , 23 L.Ed.2d 284 (1969).

An examination of the Reporter’s Transcript of the evidence (R.T.) has persuaded me to this conclusion. That *63 evidence has forcefully influenced me to the view that neither the reading of the presumption nor its limited discussion before the jury could have had any probable impact on the minds of the jurors nor any effect upon their decision. The plain hard facts developed by the government in presenting its case and the absence of any real convincing evidence to the contrary combine to render the effect of the presumption insignificant in this instance.

The amount of marihuana to be delivered under the scheme in which Scott was a principal participant, was 50 kilos or approximately 110 pounds. There was positive testimony that anyone dealing with such a large amount would know where it came from (R.T. p. 385). A narcotics expert testified that it came from Mexico.…