The opinion of the court was delivered by: POLLACK
The petitioner was convicted in 1959 of conspiracy to violate the narcotics laws and was sentenced to imprisonment for 15 years and fined $20,000. The petitioner now moves under 28 U.S.C. § 2255 for release from custody on the ground that the trial judge failed to instruct the jury clearly that knowledge of illegal importation of narcotics was an essential element to be established agains the petitioner.
This is the second application by the petitioner under 28 U.S.C. § 2255 challenging the sufficiency of the charge to the jury. The prior petition was denied two years ago, 269 F. Supp. 616 (S.D.N.Y.1966, Weinfeld, J.), and the denial thereof was affirmed, 378 F.2d 748 (2 Cir. 1967, Opin. per Moore, C.J.).
The first petition was denied on the ground that there was more than ample evidence of petitioner's constructive possession to permit a finding of his knowledge of illegal importation of the narcotics. Additionally, as Judge Weinfeld pointed out on the prior application:
"Petitioner makes a further attack based on the trial judge's instructions upon the ground that they did not require the jury 'to find such knowledge in order to return a verdict of guilty of conspiracy to violate 21 U.S.C. §§ 173, 174.' * * * He then read the charging paragraphs of the indictment * * * And, after his general instructions on the law of conspiracy, the jury was instructed:
'You may find those defendants guilty who joined the conspiracy with knowledge of its purpose and acquit those who did not join'." 269 F. Supp. at 619-620.
On the appeal from the denial of the first petition the Court of Appeals stated that:
"* * * it is particularly significant to note that appellant has heretofore obtained on his direct appeal to this court an unsuccessful review of his claim of insufficiency of evidence to support his conviction. See, United States v. Aviles, 2 Cir. 1960, 274 F.2d 179, cert. denied, [Evola v. United States,] 1960, 362 U.S. 974 [, 80 S. Ct. 1057, 4 L. Ed. 2d 1009]. This determination necessarily adjudicated the sufficiency of the evidence as to the individual elements of the crime." 378 F.2d at 749-750.
The Court of Appeals further found, that there was ample evidence from which to infer the petitioner's knowledge of illegal importation and noted the petitioner's failure to request a specific instruction with reference to this matter or to object to the instructions as given.
The Court of Appeals held further that:
"Reading the charge as a whole, the conclusion follows that the trial court adequately informed the jury of the essential elements necessary to constitute the crime of conspiracy under 21 U.S.C.A. § 174." 378 F.2d at 750.
The Court of Appeals also agreed with the observation of Judge Weinfeld that objection to the instructions was not available under § 2255, no constitutional issue having been presented. Sunal v. Large, 332 U.S. 174, 178-179, 67 S. Ct. 1588, 91 L. Ed. 1982 (1947); United States v. Sobell, 314 F.2d 314 (2 Cir. 1963), cert. den., 374 U.S. 857, 83 S. Ct. 1906, 10 L. Ed. 2d 1077 (1963).
Petitioner's current application differs, if at all, from the previous one only in that it alleges that the Court failed to instruct the jury with respect to each defendant's knowledge of illegal importation.
Petitioner claims that subsequent to the affirmance of Judge Weinfeld's decision, the case of Mason v. United States, 383 F.2d 107 (10 Cir. 1967), made the instructions in the case at bar ...