Lumbard, Kaufman and Anderson, Circuit Judges.
Carlos Smart appeals from a judgment of conviction, entered on July 24, 1969, after a jury trial in the Southern District of New York, Harold R. Tyler, J., on one count of conspiracy to violate 26 U.S.C. §§ 4705(a) and 7237(b) (selling cocaine without a written order form),*fn1 on one substantive count of violating those sections, and on one count of concealing illegally imported cocaine in violation of 21 U.S.C. §§ 173 and 174.*fn2 Smart was sentenced to concurrent prison terms of five years on the conspiracy count and ten years on each substantive count, and he is presently serving his sentence. We affirm the convictions below.
Smart was indicted with two codefendants, Jose Vasquez and Enrique Kremen. Count I charged all three with conspiracy to dispense cocaine without a written order form in violation of 26 U.S.C. §§ 4705(a) and 7237(b); Count II charged Smart alone with selling 0.315 grams of cocaine in violation of those sections; Count III charged Vasquez alone with possession of 1.4 grams of illegally imported cocaine, knowing such to have been illegally imported, in violation of 21 U.S.C. §§ 173 and 174; and Count IV charged all three with concealing 831 grams of illegally imported cocaine, knowing the same to have been illegally imported, in violation of §§ 173 and 174. Prior to trial, the charges against Kremen were severed, but Smart and Vasquez were tried together. On June 27, 1969, the jury found both defendants guilty on all counts in which they were named. Vasquez appealed separately; his conviction on Count I was affirmed, but his convictions on Counts III and IV were reversed and a new trial was ordered on those counts. United States v. Vasquez, 429 F.2d 615 (2d Cir. 1970).
The facts in this case are quite simple. On December 4, 1968, Peter Scrocca, an undercover agent of the Bureau of Narcotics and Dangerous Drugs, was introduced by an informer to Carlos Smart. Smart told Scrocca that he could obtain cocaine from Bolivia and named a price of $12,000 per kilogram if the cocaine was to be delivered in New York. After Scrocca indicated an interest in doing business, Smart gave him a sample, which was later found to contain.315 grams of cocaine, and which formed the basis for Count II of the indictment. Smart neither asked for nor received an order form for this cocaine.
On December 20, 1968, at about 10:00 p. m., Scrocca and the informant again met Smart, who stated that the price had risen to $13,000 per kilo and that he still had to make final arrangements. About two hours later, Scrocca and the informant again met Smart, and all three men drove to an apartment building at 152 East 46th Street, Manhattan, which Smart stated was his new residence. Scrocca waited in the car while Smart and the informant entered the building. When they returned Smart told Scrocca that delivery had already been made by his associates, but that these associates had to come from Queens to consummate the transaction. Returning later that night, Scrocca and the informant entered Smart's apartment, finding Smart, Vasquez, and Kremen all present. Kremen and Smart then directed Scrocca to a couch on which rested two bags of white powder. That powder was subsequently established to be 831 grams of cocaine mixed with adulterants and it formed the basis of Count IV of the indictment.
Scrocca immediately arrested Smart and his associate, and at this point other narcotics agents entered the apartment. The agents then searched the defendants and the apartment, finding in a coat belonging to Vasquez the cocaine underlying Count III.
At trial, defense counsel called four witnesses who testified that the wood panel door to Smart's apartment was intact at various times on or before December 20, 1968, but that one of the four panels was missing on the morning of December 21. One of these witnesses, who occupied an adjoining apartment, also testified that at some point on the morning of the arrest he heard a voice in the bathroom common to both apartments threatening, "If you expect to live any longer you will tell us where it is." Neither defendant testified in his own behalf.
Smart's first contention is that his conviction on Count IV must be reversed because it may have been based upon the provision of 21 U.S.C. § 174 that importation and knowledge of importation may be presumed from proof of possession, unless the defendant explains the possession to the satisfaction of the jury.*fn3 According to Smart, that statutory presumption was declared unconstitutional by the Supreme Court in Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970). This case was tried before the decision in Turner, and Judge Tyler did instruct the jury that they could convict on the basis of the § 174 presumption. Because of Turner, Smart contends, that instruction was constitutionally impermissible, and direct evidence both of the cocaine's importation and of his knowledge of that importation was necessary for his conviction. Although he concedes that there was direct evidence proving these elements as to the cocaine involved in Count II, he argues that this evidence did not relate to the cocaine charged in Count IV. Alternatively, he argues that even if the direct evidence did relate to Count IV, the court's charge nonetheless improperly permitted the jury to rely upon the statutory presumption in determining his guilt on that count.
Smart also cites the decision of this Court in Vasquez, supra, where the panel, relying on Turner, reversed codefendant Vasquez's conviction on Count IV for this very reason. In discussing Turner in that case, Judge Feinberg, writing for the Court, recognized that the Supreme Court had declared the § 174 presumption unconstitutional merely with respect to a small quantity of cocaine (there, less than one gram) and had left open the question whether the presumption might be rational when applied to large quantities of cocaine. He quoted from the Turner opinion as follows:
"'Since the illegal possessor's only source of domestic cocaine is that which is stolen, the United States urges that the § 174 presumption may be valid with respect to sellers found with 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. * * * We find it unnecessary to deal with the problems and postpone their consideration to another day, hopefully until after the facts have been presented in an adversary context in the district courts'" [396 U.S. at 419 n. 39, 90 S. Ct. at 654]. 429 F.2d at 618.
Judge Feinberg, however, went on to reject the government's invitation to affirm the validity of the presumption as applied to large amounts of cocaine. He stated that "the best test of the rationality of the presumption as applied to Count Four will be after an adversary hearing in the district court," 429 F.2d at 618, and hence he ordered a new trial on that count.
We reject Smart's contention. Our most recent pronouncement on this issue is United States v. Gonzalez, 442 F.2d 698, at 705 (2d Cir., decided May 14, 1971), where this Court, sitting in banc, held the § 174 presumption valid when applied to one kilogram or other large quantities of cocaine. We distinguished Vasquez as follows:
"The panel in Vasquez concluded that the language in Turner footnote 39 required an adversary hearing in the district court to resolve the issue of the rationality of the presumption. 429 F.2d at 618. Although we agree that such an adversary hearing might well elicit valuable statistical information, we do not interpret the Supreme Court's language to prevent appellate consideration of the issue upon facts adversarily presented to juries prior to Turner or to imply anything more than the 'hope' that, should the issue of the presumption's rationality be raised on appeal, a full record would be available on the issue. Indeed, Turner ...