Lumbard, Chief Judge, and Waterman, Moore, Friendly, Smith, Kaufman, Hays, Anderson and Feinberg, Circuit Judges. Irving R. Kaufman, Circuit Judge (dissenting). Feinberg, Circuit Judge, with whom J. Joseph Smith, Circuit Judge, joins (dissenting).
The three appellants, together with Emilio Massu, were charged in a two count indictment with, first count, having violated and, second count, having conspired to violate the federal narcotics laws, 21 U.S.C. §§ 173, 174. After a jury trial all four were convicted on both counts. Each of the three appellants took the stand and testified. Massu remained silent. Massu, Gonzalez and Miranda received sentences of five years' imprisonment on each count, the sentences to be served concurrently, and Ovalle was sentenced to concurrent six year terms. Massu declined to file a notice of appeal. All four are serving their sentences.
In large measure the resolution of the defendants' guilt or innocence depended upon whether the jurors believed or disbelieved the government witnesses, for each of the appellants denied any connection with or knowledge of the illegal narcotics transaction in which the government witnesses testified they had been engaged.
The government evidence, however, quite conclusively proved that appellants were criminally involved. The government evidence brought out the facts now recited.
On December 16, 1968 Ovalle approached one Carmelo Viera, an informant in the employ of the Federal Bureau of Narcotics, to discuss the sale of a kilogram of cocaine. Viera was interested in buying it. Ovalle's price was $9,000. Viera, having shown interest in making a purchase, was next introduced to Massu, who assured Viera that the cocaine offered for sale was "a hundred percent pure," having been, by Massu himself, personally brought into the United States from Chile. Massu also stated that he imported cocaine about once a month "as a seaman" and, if Viera wished, he could bring him more in the future. Later in the day, after meeting with federal narcotics agents, informant Viera again met with Ovalle and told him a customer had been found willing to buy the cocaine kilo.
On December 18, in the morning, Viera met Ovalle and told him that the buyer would be ready at three, and, at three, Viera introduced Ovalle to the buyer, John Lepore, a Bureau of Narcotics agent, who promptly showed Ovalle $9,000 in cash. Ovalle then told Lepore he would return with the drugs later in the day and left, Viera accompanying him. Ovalle and Viera then met with Massu, Gonzalez and Miranda and it was arranged by them to have Lepore consummate the purchase at a hotel room where the imported cocaine was kept. Massu and Gonzalez were left near the hotel, and Viera, Miranda and Ovalle proceeded to where Lepore was waiting. On the way Miranda told Viera in Ovalle's presence that she could get an additional five kilograms of cocaine by the end of January. Viera, Miranda and Ovalle directed Lepore to the hotel. Once the defendants, informant Viera, and agent Lepore had gathered in the hotel room, Gonzalez, at Massu's direction, removed a shopping bag from a closet and placed it on one of the beds. Massu then removed two cellophane bags of equal size, which upon later inspection were discovered to contain approximately 1,028 grams (over 2 1/5 pounds) of cocaine, and handed one of the bags to the agent. Agent Lepore indicated he could not see through the wrapping, so Massu split the seal with a razor to facilitate a closer examination of the merchandise. While Lepore was inspecting the bag's contents Massu, Ovalle and Miranda fingered the crystalline substance and assured Lepore that the cocaine was pure and of good quality. Shortly thereafter the defendants were arrested. A search followed and a black leather suitcase with a false bottom was discovered. In it were an Argentinian Airlines ticket receipt reflecting a flight from South America to New York by Miranda, Miranda's Chilean Passport showing that she arrived in New York on November 27, 1968, and a Braniff Airways ticket receipt reflecting a flight from South America to New York by Gonzalez. These items were admitted into evidence. The four defendants are Chilean nationals. Both women testified to having traveled to New York in November, Miranda on the 27th, her first trip, and Gonzalez, who had previously been to New York, on the 24th to join Emilio Massu, her common law husband of 27 years.
Motions for a directed verdict of acquittal were made at the close of the Government's evidence and at the close of all the evidence. These motions were denied. A post-verdict motion to set aside the jury's verdict as having been contrary to the weight of the evidence and against the applicable law and for a new trial was also made and denied.
Appellants challenge, on Fifth Amendment grounds, the inferences of illegal importation and knowledge of illegal importation which are allowed by the statute once "unexplained" possession of cocaine is established.*fn1 Although sufficient evidence was introduced at trial to warrant the jury to find beyond a reasonable doubt that the cocaine found in defendants' possession was illegally imported and the defendants knew it, the trial court instructed the jury that they could infer the "importation" and "knowledge" elements of the crime without relying on any evidence to support such inferences other than the evidence that the defendants possessed the cocaine.
The trial here was prior to the decision in Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970), and the charge was a proper one under the then existing law. In Turner, however, the Court ruled that possession of relatively small amounts of cocaine (in Turner's case less than one gram, i. e., substantially less than one-thousandth of the quantity here illicitly offered for sale) did not meet the constitutional test of the statutory presumption, saying:
Applying the more likely than not standard employed in * * * [Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969)] we cannot be sufficiently sure that either the cocaine that Turner possessed came from abroad or that Turner must have known that it did. Id. at 419, 90 S. Ct. at 654.
The Turner Court went on to state, however, that possession of much larger amounts of cocaine than Turner had, amounts which it is claimed are too large to have been removed from legal channels and which must therefore have been smuggled, presented an issue better postponed "to another day, hopefully until the facts are presented in an adversary context in the district courts." Id. at 419, n. 39, 90 S. Ct. at 654.
Although in Turner the Government conceded and the Court found that "thefts [of cocaine] from legal sources, though totaling considerably less than the total smuggled, are still sufficiently large to make the § 174 presumption invalid as applied to Turner's possession of cocaine [less than one gram]," we reach a contrary conclusion where possession of more than one kilogram of cocaine is involved.
Cocaine is legally produced in significant quantities for medical use, but a relatively small proportion of this cocaine is stolen from legitimate sources in the United States and thereby might find its way into illicit drug traffic;*fn2 the remainder is smuggled. In Erwing v. United States, 323 F.2d 674, 678-679 (9 Cir. 1963), expert testimony revealed that it would be unlikely that a drug store would stock more than one ounce of cocaine hydrochloride or a hospital more than three or four ounces. Thefts from legitimate sources, then, would be of small amounts at any one time. To reach the conclusion that the thirty-five ounces found in defendants' possession was the aggregate of many small domestic thefts would entail some rather far-reaching speculations. Assuming that approximately two ounces of the thirty-five ounces of the drug the defendants exhibited for sale were stolen from domestic supplies at any one time, thieves would have needed to pilfer from eighteen or more hospitals or drug stores and, in order to amass the kilogram of cocaine contained in the two neat packages the defendants displayed, they, or unknowns with whom they had connections, would have been chargeable with nearly one-fifth of all the cocaine stolen from domestic sources in 1968.*fn3 We cannot accept such a chain of assumptions as plausible. We are convinced that the importation presumption in this case fitted the facts perfectly and the judge's charge to the jury was just as proper as it would have been if the defendants had possessed heroin.
The government evidence, if believed, established that the defendants knew that the kilo they possessed had been imported. Nevertheless, irrespective of that direct proof, the presumption of knowledge inferable from proof of possession is valid in this case.
In Leary v. United States, supra, a case involving a parallel statutory presumption as applied to a user of marijuana, the Court, after acknowledging that the presumption of knowledge could not be sustained "solely because of the assumed validity of the 'importation' presumption," stated:
We conclude that in order to sustain the inference of knowledge we must find on the basis of the available materials that a majority of marijuana possessors are either cognizant of the apparently high rate of importation or otherwise have become aware that their marijuana was grown abroad. Id. at 46-47, 89 S. Ct. at 1553. (Emphasis supplied.)
While the Leary Court decided that "it would be no more than speculation" to conclude "that even as much as a majority of possessors 'knew' the source of their marijuana" and, therefore, struck down the "knowledge" presumption as applied to Dr. Leary, a user, we are dealing here with possessors of a different sort. This case does not deal with the majority of domestic cocaine possessors or with local residents suspected of being cocaine users and it does not deal with what such persons may "know" or "not know" of the sources of cocaine found in their possession. We are concerned here with Chilean citizens found in possession of a drug in an amount so large as to leave little doubt that it was smuggled, and we are confident that possessors of a kilogram of cocaine offering it for sale for $9,000 would be aware of the "high probability" that it was illegally imported unless they practiced a "studied ignorance to which [they were] not entitled." Persons who deal in large quantities of hard narcotics, as heroin and cocaine, are bound to discover, if they do not already know, that their product could not practically have derived from domestic sources. Cf. Turner v. United States, supra at 416, 417, and footnotes 29, 30, 34, 90 S. Ct. 642.
A second point, raised by appellant Ovalle, is that, as to him at least, he was never shown to be in possession, constructive or actual, of more than a tiny amount of the cocaine in question, and therefore Turner directly applies to him. We disagree. As previously pointed out, Ovalle was in the room when the sale of cocaine was consummated and he touched the substance by placing his fingers in one of the two bags containing the narcotics. It stretches credulity to suppose that Ovalle was only in possession of the amount of cocaine his fingers actually touched for he had physical "dominion and control" over all the contents of the container, at least during the moments he investigated the contents. As to the other bag of cocaine which lay on the bed a few feet away, it follows that Ovalle was equally as able as the others to pick up and examine its contents had the Narcotics Agent, acting as buyer, wished. This is not a case where due to defendant's disadvantaged "working relationship" with his confederates he was unable to help effectuate a transfer without coming into physical contact with the drug. See, e. g., United States v. Febre, 425 F.2d 107 (2 Cir. 1970); United States v. Jones, 308 F.2d 26 (2 Cir. 1962) (in banc).
A final point, raised by appellant Miranda, is that the trial court's instruction relating to defendants' "possession" of the cocaine in question failed to differentiate between actual or physical possession and constructive possession and Miranda was harmed thereby. This is an unusual point to be argued by a defendant; it is the prosecution that insists that the jury be informed as to the meaning of constructive possession, particularly in a case where physical possession is not proved. In the case at bar the evidence showed that Miranda and Ovalle physically possessed at one point at least half (one bag) of the total amount of cocaine involved in the sale, and because of their close association with the planning and mechanics of the narcotics sale and transfer and their ability actually to get their hands on the cocaine, a finding of constructive possession of the other half, which lay within easy reach on a bed in the hotel room, was warranted. There is absolutely no way that Miranda, or indeed any of the defendants, could have been prejudiced by the court's failure to distinguish between the two types of possession. In short, had the judge told the jury that it could find that a defendant was in possession of the cocaine within the meaning of the statute "even though [a defendant did] did not have physical custody, so long as [a defendant had] dominion and control over the narcotics," United States v. Baratta, 397 F.2d 215, 224 (2 Cir.), cert. denied, 393 U.S. 939, 89 S. Ct. 293, 21 L. Ed. 2d 276 (1968), we cannot see, nor has appellant Miranda indicated, even a remote possibility that the jury's verdict may have been different. A more complete charge would have made it easier for the jury to conclude that the defendants possessed the narcotics in question.