United States v. Spencer Chaney

442 F.2d 344 UNITED STATES of America, Appellee, v. Spencer CHANEY, Appellant. No. 23842. United States Court of Appeals, Ninth Circuit. May 6, 1971. Michael Kennedy (argued), San Francisco, Cal., for appellant. Allan D. Streller (argued), Asst. U. S. Atty., Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for appellee. Before MERRILL, CARTER, and HUFSTEDLER, Circuit Judges. PER CURIAM: 1 Chaney appeals from his conviction on nine counts charging violations of federal narcotics laws: count one, receipt and transportation of unlawfully imported heroin ( 21 U.S.C. § 174 ); count two, sale of unlawfully imported heroin ( 21 U.S.C. § 174 ); count three, sale of heroin without obtaining a Treasury Department order form ( 26 U.S.C. § 4705 (a)); counts four and nine, receipt and transportation of unlawfully imported marihuana (21 U.S.C. § 176a); count five, sale of unlawfully imported marihuana ( 21 U.S.C. § 176 ); count six, sale of marihuana without obtaining a Treasury Department order form; count seven, sale of cocaine without obtaining a Treasury Department order form; count eight, conspiracy to violate 21 U.S.C. § 176a. 2 The Government concedes that…

Chaney appeals from his conviction on nine counts charging violations of federal narcotics laws: count one, receipt and transportation of unlawfully imported heroin ( 21 U.S.C. § 174 ); count two, sale of unlawfully imported heroin ( 21 U.S.C. § 174 ); count three, sale of heroin without obtaining a Treasury Department order form ( 26 U.S.C. § 4705 (a)); counts four and nine,- receipt and transportation of unlawfully imported marihuana (21 U.S.C. § 176a); count *345 five, sale of unlawfully imported marihuana ( 21 U.S.C. § 176 ); count six, sale of marihuana without obtaining a Treasury Department order form; count seven, sale of cocaine without obtaining a Treasury Department order form; count eight, conspiracy to violate 21 U.S.C. § 176a.

The Government concedes that Leary v. United States (1969) 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 requires reversal of counts four, five, eight, and nine, each of which relates to marihuana.

Chaney’s remaining arguments have been defeated by a series of Supreme Court decisions. The statutory inference of knowledge of illegal importation drawn from possession of heroin was upheld in Turner v. United States (1970) 396 U.S. 398 , 90 S.Ct.…

JAMES M. CARTER, Circuit Judge

In United States v. Scott (in banc 1970) 9 Cir., 425 F.2d 55 , we held that Leary v. United States (1969) 395 U.S. 6 , 89 S.Ct. 1532 , 23 L.Ed.2d 57 , was fully retroactive. If the decision in Scott is correct, then I would have no problem with the opinion in this case.

However, Leary, for its holding on self incrimination, relied on Marchetti v. United States, 390 U.S. 39 , 88 S.Ct. 697 , 19 L.Ed.2d 889 (1968); Grosso v. United States, 390 U.S. 62 , 88 S.Ct. 709 , 19 L.Ed.2d 906 (1968); and Haynes v. United States, 390 U.S. 85 , 88 S.Ct. 722 , 19 L.Ed.2d 923 (1968). On April 5, 1971, the Supreme Court decided Mackey v. United States, 401 U.S. 667 , 91 S.Ct. 1160 , 28 L.Ed.2d 404 , holding that Mar-chetti and Grosso were not retroactive and were to be applied only to prosecutions begun after the date they were announced. Thus the underpinning for our decision in Scott, as to the retroactive effect of Leary , seems to have been cut away.

In our case the defendant was sentenced on May 16, 1968, one year prior to Leary which came down on May 19, 1969. If Leary is not to be retroactive then we should also affirm counts IV, V, VIII and IX as well as…