United States v. Anthony Sannicandro

Appellant and his co-defendant, Quinn, were found guilty in a jury trial on a three-count indictment charging violations of 21 U.S.C. § 176a (concealment of illegally imported marihuana), 21 U.S. C. § 176a (illegal sale of marihuana), and 26 U.S.C. § 4742 (a) (illegal transfer of marihuana). Appellant was sentenced to five years on each count with the sentences to run concurrently.

The appeal presents two issues for our consideration:

(1) Was appellant’s conviction based on violations of 21 U.S.C. § 176a void under Leary v. United States, 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 (1969), as that decision is construed in Scott v. United States, 425 F.2d 55 (9th Cir. 1970) ?' Appellee concedes that these decisions are controlling and that counts one and two must be reversed. We agree.

(2) Here appellant contends that the evidence is insufficient to sustain a conviction under count three charging an illegal transfer of marihuana without an order form. 26 U.S.C. § 4742 (a).

The principal facts are in dispute. A fair summary of the government’s evidence is as follows. For some time prior to December 5, 1967, the appellant was acquainted with Hatswell who, unknown to the…

434 F.2d 321 UNITED STATES of America, Appellee, v. Anthony SANNICANDRO, Appellant. No. 25084. United States Court of Appeals, Ninth Circuit. November 16, 1970. Rehearing Denied December 21, 1970. Stanley Yep (argued), Los Angeles, Cal., for appellant. Richard Kirschner (argued), Asst. U. S. Atty., Robert L. Meyer, U. S. Atty., David R. Nissen, Chief, Criminal Division, Los Angeles, Cal., for appellee. Before ELY, KILKENNY and TRASK, Circuit Judges. KILKENNY, Circuit Judge: 1 Appellant and his co-defendant, Quinn, were found guilty in a jury trial on a three-count indictment charging violations of 21 U.S.C. § 176a (concealment of illegally imported marihuana), 21 U.S. C. § 176a (illegal sale of marihuana), and 26 U.S.C. § 4742 (a) (illegal transfer of marihuana). Appellant was sentenced to five years on each count with the sentences to run concurrently. 2 The appeal presents two issues for our consideration: 3 (1) Was appellant's conviction based on violations of 21 U.S.C. § 176a void under Leary v. United States, 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 (1969), as that decision is construed in Scott v. United States, 425 F.2d 55 (9th Cir. 1970)? Appellee…

(Dissenting):

I respectfully dissent. The majority properly holds that the appellant was impermissibly convicted of the charges made under 21 U.S.C. § 176a. I have no doubt whatsoever that the jury, or at least some of its members, may have been improperly influenced in its consideration of the appellant’s guilt of the offense charged under 21 U.S.C. § 4742 (a), because of the existence of the other two charges and the erroneous and prejudicial instructions given in connection with them.

No judge can avoid the application of his own experience in the resolution of such an issue as that on which I now part from my Brothers. From whatever knowledge I may have gained in my lifetime, including that derived from participation as an advocate in the trial of scores of jury cases, I am thoroughly convinced that Sannicandro’s lawyer would have had a better chance of de-» fending his client on the so-called “tax count” had the other two charges not been before the jury or had the whole trial not been corrupted by the erroneous instructions. Because of my conviction in this respect, and in the interest of justice, I would, if I could, afford Sannicandro a new trial in which the District…