Alfred Melvin Feldstein v. United States

In a jury trial, Feldstein was found guilty of three different offenses, each arising under 21 U.S.C. § 176a. In count 1 of the indictment, he, Dodds and Ollendorf, were charged with aiding and abetting one Rosciano in smuggling marihuana into the United States from Mexico. In count 2, he and the same two persons were charged with aiding and abetting Rosciano in concealing and facilitating the transportation and concealment of the same quantity of marihuana, which had been imported into the United States contrary to law. In count 3, Feldstein, Rosciano, Dodds and Ollendorf were charged with conspiring to import and bring marihuana into the United States without presenting it for inspection or entering and declaring it, as required by 19 U.S.C. §§ 1459 , 1461, 1484 and 1485, and to conceal and facilitate the concealment and transportation of marihuana brought into the United States contrary to law. Feldstein was sentenced to ten years on each count, all three sentences being concurrent, and to a fine of $10,000 on each of counts 1 and 2, a total of $20,000. The assignments of error affect all three counts.

Feldstein was tried alone; the other three named defendants testified for…

(dissenting):

I respectfully dissent. The majority holds that an error of constitutional dimension was, under Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967), harmless beyond a reasonable doubt. It does this while, at the same time, forthrightly observing that the prosecution’s appeal for conviction, in summation, was predicated, almost wholly, upon the proposition that the jury should apply the unconstitutional presumption. Feldstein never had actual possession of the marihuana, and I cannot believe that he was not prejudicially affected by the erroneous instruction and the prosecution’s argument thereof. We learned, in Wilson v. Anderson, 379 F.2d 330 (9th Cir. 1967), rev’d sub nom. Anderson v. Nelson, 390 U.S. 523 , 88 S. Ct. 1133 , 20 L.Ed.2d 81 (1968), that it is a rare case indeed when error of constitutional magnitude can be held, beyond reasonable doubt, not to have prejudicially affected the rights of an accused.

Moreover, my examination of the instructions given to the jury in this case leads me to believe that the majority’s conclusion cannot be reconciled with our court’s recent opinion in United States v. Christion, 426 F.2d 787 (9th Cir.…

429 F.2d 1092 Alfred Melvin FELDSTEIN, Appellant, v. UNITED STATES of America, Appellee. No. 22344. United States Court of Appeals, Ninth Circuit. June 22, 1970, Rehearing Denied July 27, 1970. Burton Marks (argued) of Beverly Hills, Cal., for appellant. Shelby R. Gott (argued) Asst. U.S. Atty., Edwin L. Miller, Jr., U.S. Atty., San Diego, Cal., for appellee. Before BARNES, DUNIWAY and ELY, Circuit Judges. DUNIWAY, Circuit Judge: 1 In a jury trial, Feldstein was found guilty of three different offenses, each arising under 21 U.S.C. 176a. In count 1 of the indictment, he, Dodds and Ollendorf, were charged with aiding and abetting one Rosciano in smuggling marihuana into the United States from Mexico. In count 2, he and the same two persons were charged with aiding and abetting Rosciano in concealing and facilitating the transportation and concealment of the same quantity of marihuana, which had been imported into the United States contrary to law. In count 3, Feldstein, Rosciano, Dodds and Ollendorf were charged with conspiring to import and bring marihuana into the United States without presenting it for inspection or entering and declaring it, as required by 19 U.S.C. 1459, 1461,…