United States v. Charles Demore Jewell

We took this case in banc to perform a simple but necessary “housekeeping” chore. The opinion in United States v. Davis, 501 F.2d 1344 (9th Cir. 1974), refers to possession of a controlled substance, prohibited by 21 U.S.C. § 841 (a)(1), as a “general intent” crime. If this means that the mental state required for conviction under section 841(a)(1) is only that the accused intend to do the act the statute prohibits, the characterization is incorrect. The statute is violated only if possession is accompanied both by knowledge of the nature of the act and also by the intent “to manufacture, distribute, or dispense.” United States v. Clark, 475 F.2d 240, 248-49 (2d Cir. 1973). The jury was so instructed in this case. We are unanimously of the view that this instruction reflects the only possible interpretation of the statute. The contrary language in Davis is disapproved.

This does not mean that we disapprove the holding m Davis . On the contrary, we are unanimously of the view that the panel in Davis properly held that “The government is not required to prove that the defendant actually knew the exact nature of the substance with which he was dealing.” 501 F.2d at 1346 .…

with whom ELY, HUFSTEDLER and WALLACE, Circuit Judges, join (dissenting).

Jewell was convicted and received concurrent sentences on two counts: (1) knowingly or intentionally importing a controlled substance, 21 U.S.C. §§ 952 (a), 960(a)(1); (2) knowingly or intentionally possessing, with intent to distribute, a controlled substance, id. § 841(a)(1). We agree with the majority that the jury was not required to find, as to count one, that the defendant knew which controlled substance he possessed. We further agree that the additional state of mind required by count two — intent to distribute the substance — must be specifically proven as an element of a section 841(a)(1) violation.

The sole question raised by appellant is whether the following jury instruction constitutes reversible error:

At the outset, it is arguable that the “conscious purpose to avoid learning the truth” instruction is inherently inconsistent with the additional mens rea required for count two — intent to distribute. It is difficult to explain that a defendant can specifically intend to distribute a substance unless he knows that he possesses it. 1 In any event, we would not approve the conscious purpose…

532 F.2d 697 UNITED STATES of America, Plaintiff-Appellee, v. Charles Demore JEWELL, Defendant-Appellant. No. 74-2832. United States Court of Appeals, Ninth Circuit. Feb. 27, 1976. Robert W. Ripley, Jr., San Diego, Cal., for defendant-appellant. Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiff-appellee. OPINION Before CHAMBERS, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, SNEED and KENNEDY, Circuit Judges. BROWNING, Circuit Judge: 1 We took this case in banc to perform a simple but necessary " housekeeping" chore. The opinion in United States v. Davis, 501 F.2d 1344 (9th Cir. 1974), refers to possession of a controlled substance, prohibited by21 U.S.C. § 841(a)(1), as a "general intent" crime. If this means that the mental state required for conviction under section 841(a)(1) is only that the accused intend to do the act the statute prohibits, the characterization is incorrect. The statute is violated only if possession is accompanied both by knowledge of the nature of the act and also by the intent "to manufacture, distribute, or dispense." United States v. Clark, 475 F.2d 240, 248-49 (2d Cir. 1973). The jury was so…