Lumbard, Chief Judge, and Waterman and Feinberg, Circuit Judges. Waterman, Circuit Judge (dissenting).
Cecilio Rivera was tried by Judge Bruchhausen in the Eastern District of New York, sitting without a jury, and convicted of a purchase of 51.55 grams of cocaine not in or from the original package in violation of 26 U.S.C. § 4704(a).*fn1 He was sentenced to five years imprisonment. On appeal he seeks to raise the question whether possession of narcotics can consistent with the Constitution create a presumption not only of an unlawful purchase but of a purchase within the district where the accused is found in possession, as provided by the statute. In particular Rivera challenges reliance by the government on this inference of venue when, as here, there was evidence that indicated a prior possession in the Southern District. We do not reach the issue raised by this challenge because we find that the appellant waived his objection to venue in the Eastern District when he moved for an acquittal on specific grounds without any mention of venue.
The facts are not in dispute. The testimony produced at the trial indicated that an agent of the Federal Bureau of Narcotics received information from a reliable informant that a Bronx man was trafficking in narcotics. On the instructions of the agent, the informant telephoned the appellant who was in the Bronx, which is in the Southern District, and arranged a meeting for the next day at Kennedy Airport which is in the Eastern District. Another call was made on the day of the appointed meeting, and the appellant stated he had the cocaine and would be at the airport. The informant and appellant met later that day at the Eastern Airlines Terminal of Kennedy Airport, left the terminal and walked to the appellant's automobile. The appellant was arrested after entering the car, and a search of the vehicle revealed nine tinfoil packages containing cocaine.
In the course of the trial, the government offered no evidence to establish the purchase or the place of purchase but relied on the statutory inference in § 4704(a): "the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found."
Appellant did not offer any evidence on his own behalf. However, his attorney did move for acquittal, and specified three grounds. The first two involved questions concerning the arrest and search, and are not pertinent here. The third ground was
that the Government has failed to prove the charge set forth in the indictment number 66-Criminal-225, to wit, that this defendant on or about the 12th day of February 1965, within the Eastern District of New York, unlawfully purchased approximately 51-55 grams of the narcotic drug cocaine, which drug was not in or from the original package bearing tax stamps as required by law.
Now, your Honor, the testimony here affirmatively shows that they found nothing on the person of this defendant, this defendant had no contraband. They found contraband in the car and therefore they came to the conclusion that this defendant purchased the same.
There is no proof established by the Government that this defendant at any time, at any place, in any manner whatsoever, purchased Government's Exhibit 2, which the Government offered in evidence. I therefore move to acquit.
The Assistant United States Attorney responded, and pointed out that under the statute possession raised an inference of purchase, and the defendant's attorney then made an additional "comment":
The presumption in the statute, and I am familiar with it, the presumption applies only to such cases where the narcotics were found in the possession because the statute reads that where a defendant is charged with a violation of any of these sections of the narcotics law, "is or has in his possession," "is or has in his possession," that is where the presumption applies, unless it is explained.
Now, in this case, the testimony is that this defendant did not have any narcotics in his possession. The agent said he wasn't searched at the time of the arrest or before the arrest. However, the agent said that when the defendant was taken out of the car they found a package there.
I say there is no proof that the package was the package owned or ...