United States v. Robert Christion, United States of America v. Henry L. Frazier

426 F.2d 787 UNITED STATES of America, Plaintiff-Appellee, v. Robert CHRISTION, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Henry L. FRAZIER, Defendant-Appellant. Nos. 24373, 24395. United States Court of Appeals, Ninth Circuit. May 14, 1970. Leonard Gang, Las Vagas, Nev., for Christion. V. DeVoe Heaton, of Albright & Heaton, Las Vegas, Nev., for Frazier. Robert S. Linnell (argued), U.S. Atty., Las Vegas, Nev., for appellee. Before CHAMBERS, JERTBERG, and BROWNING, Circuit Judges. PER CURIAM: 1 Defendants' constitutional challenge to the inference authorized by 21 U.S.C. 174 as applied to heroin cases is disposed of by Turner v. United States, 396 U.S. 398 , 90 S.Ct. 642 , 24 L.Ed.2d 610 (January 20, 1970). 2 We agree with defendants, however, that prejudicial error occurred in instructing the jury regarding the inference. 3 The jury was informed that the 'explanation of possession to the satisfaction of the jury,' referred to in section 174, was an explanation of 'innocent' possession. This is not the law. Even if the defendant's possession of narcotic drugs is unlawful, the jury is to acquit if there is reasonable doubt either that the drugs were…

Defendants’ constitutional challenge to the inference authorized by 21 U.S.C. § 174 as applied to heroin cases is disposed of by Turner v. United States, 396 U.S. 398 , 90 S.Ct. 642 , 24 L.Ed.2d 610 (January 20, 1970).

We agree with defendants, however, that prejudicial error occurred in instructing the jury regarding the inference.

The jury was informed that the “explanation of possession to the satisfaction of the jury,” referred to in section 174, was an explanation of “innocent” possession. This is not the law. Even if the defendant’s possession of narcotic drugs is unlawful, the jury is to acquit if there is reasonable doubt either that the drugs were imported contrary to law or that the defendant knew they were unlawfully imported. United States v. Peeples, 377 F.2d 205, 209 (2d Cir. 1967); United States v. Llanes, 374 F.2d 712, 715-716 (2d Cir. 1967); Chavez v. United States, 343 F.2d 85, 88-90 (9th Cir. 1965); Griego v. United States, 298 F.2d 845, 848-849 (10th Cir. 1962).

More important, the instructions left the impression that if possesion were proved beyond a reasonable doubt, conviction should follow; they obscured the fact that the ultimate burden remained with…

(dissenting) :

Here we had a chemist who testified that heroin can be made from morphine. Of course, what underlies Leary v. United States, 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 , is the large incidence of domestic homegrown marijuana which makes the use of the presumption unfair.

Turner v. United States, 396 U.S. 398 , 90 S.Ct. 642 , 24 L.Ed.2d 610 , clears the Section 174 presumption in the case of heroin. If I were not a judge, I would know that very little heroin is made in the United States from morphine. I would not reverse here unless the chemist had testified that the incidence of conversion within the United States of morphine to heroin is high. This he did not do.

Accepting the foregoing, it seems to me that the majority is overcritical of the instructions. If there was slight error, I would say it is harmless.