Waterman, Hays and Anderson, Circuit Judges.
Appellant, after a two day jury trial, was convicted of violating the Narcotic Drugs Import & Export Act, 21 U.S.C. § 173, § 174. On appeal he seeks a reversal of the conviction and a remand for a new trial.
The indictment contained two counts and appellant concedes that he made the two sales of narcotics set forth therein. The deliveries to the purchasing federal agents were made pursuant to the devious arrangements typically found in illicit narcotics transactions. The only unusual features of this case are first, the high quality of the heroin, the two ounces sold on June 30, 1964 having been pure heroin, and second, appellant's assertion at trial that he was able to deliver enormous quantities of narcotics.
Essential elements of the offense for which appellant was indicted are both that the narcotics he sold had been imported into the United States contrary to law and that appellant, when he sold the narcotics, knew it.*fn1 Appellant testified that he did not know where the heroin had been manufactured or whether it had been imported into the United States.*fn2 No other evidence relative thereto was presented by either side.
The only question raised on this appeal relates to the trial judge's charge and supplemental charges delineating to the jury the statutory inference that knowledge of the unlawful importation of the narcotics which the defendant-appellant sold is inferable from his possession of them.
Appellant contends that the trial judge erred in instructing the jury that it could draw the statutory inference unless the defendant satisfactorily explained that he had "lawful possession" of the narcotics. Appellant also maintains that the judge's charge precluded the jurors from determining whether they believed defendant's testimony that he did not know that the narcotics were illegally imported.
The trial judge initially instructed the jury that:
But now with regard to this second element, the importation, the law provides that if you find the defendant had possession of the heroin, then you may, but you are not required to, you may infer that the defendant knew that the heroin was imported contrary to law, unless on all of the evidence you can prove that the defendant had explained his possession of the heroin to you to your satisfaction, and this refers, ladies and gentlemen, to lawful possession, to your satisfaction.
So here you will consider whether on all the evidence, including the defendant's testimony, the defendant has satisfactorily explained to you his possession of heroin and that he did know of the illegal importation. (Emphasis supplied.)
Defense counsel objected on the ground that this charge did not clearly indicate that a lack of knowledge as to unlawful importation was a sufficient defense to the indictment even if defendant's possession of the drugs was not lawful. This objection was overruled and the instructions the defense requested were refused.
The issues raised by the judge's charge evidently troubled the jury for, after some deliberation, it requested additional instructions. The court then, in a supplemental charge, repeated in substance its prior charge as to knowledge of unlawful importation and, once more, the defense objected. After further deliberation, the jury again returned for enlightenment as to what effect defendant's "knowledgeability or lack of knowledge" of unlawful importation should have on their verdict. It also inquired about the percentage of heroin produced illegally in the United States versus the percentage produced outside. As there was no evidence in the record concerning areas of the world where heroin is produced, the judge declined to answer the latter inquiry, but did respond to the question as to the effect of "knowledgeability" as follows:
However, if after considering all the evidence you are not clear as to whether the defendant knew that the heroin was illegally imported, and you recall he testified he didn't, then you will consider whether the evidence shows that the defendant had possession of the heroin.
Now, you will recall the evidence on these two transactions. Possession means that he had the heroin, and you recall the transactions as testified to by the agent that he did obtain ...