426 F.2d 1304 | 9th Cir. | 1970
Lead Opinion
Defendants Andrews and Sloan were found guilty after a nonjury trial of both counts of a two-count indictment charging violation of 21 U.S.C. § 176a. Count One charged a conspiracy to import, receive, and conceal marihuana imported from Mexico, and Count Two charged re
Had the court below relied exclusively on the finding of knowledge from evidence independent of the presumption and were such finding not clearly erroneous, application of the presumption would be harmless error. On the record before us, however, we cannot determine whether the court made an independent finding of knowledge without the benefit of the presumption. We have no special findings. As in Howard v. United States (9th Cir. 1970) 423 F.2d 1102, some of the district court’s remarks at the close of trial suggest that it could have found knowledge of illegal importation without regard to the presumption, but other remarks suggest to the contrary.
The convictions therefore are reversed, and the causes are remanded for further proceedings consistent with this opinion.
. “As to Count Two, I find the defendant Andrews guilty of receiving the one kilo. And I conclude that both defendant Andrews and defendant Sloan had knowledge of the importation of the marihuana, and I conclude that from the statement they made in the garage.
“I do conclude that they did make those statements, as to ‘Where is the marihuana?’ I conclude that they did search back of the headlights — at least one of the headlights and the tail light, looking for the marihuana, which they believed was there.
“I think also that they had possession of the marihuana, at least of one kilo of marihuana, insofar as the car was concerned, because the car was, in effect, in their possession with the marihuana in it.”
This can be interpreted either as (a) two independent findings of knowledge, one based on actual evidence and one based on possession, or (b) as one finding of knowledge based on the actual evidence plus possession. Earlier the court stated: “Possession is the key to the imputing of the knowledge that it was imported contrary to law.” And before trial the court rejected the defense’s argument that the presumption could not be applied in a court trial.
Dissenting Opinion
(dissenting):
The trial judge made a specific finding that each defendant had knowledge of the importation of the marihuana. There is nothing in the record to indicate that the judge in arriving at this specific finding was in any way relying on the statutory presumption.
I would affirm.
. 21 Ü.S.C. § 176a.