*1 701 therapy functions, retroactivity provide or otherwise five lim- could be are to well-being holding person’s ited to our to the Gaither contribute such, States, 154, these measures As v. United or reform. 174-178, closely 1061, to insure scrutinized 1081-1085 must be being applied (1969). Accordingly, power consist- is I that ently would reverse. the commu- values of those justify nity with lib- interference
erty only clear com- the most for
pelling reasons. Allen, of Criminal The Borderland
F. (1964). kinds These were Justice 37 UNITED STATES of America court in led of considerations it hold that v. Reef13 HOLLAND, Appellant. Clifton W. Amendment of the Fifth awas violation Youth Cor- impose sentence under prosecution not had when Act rections Court indictment, by I and think initiated been District Columbia Circuit. follow this do well to that we would 27, Jan. 1971. teaching. that benevo- I cannot believe purpose science rhetoric and social lent avoiding grounds provide sufficient “a acts mandate which constitutional safeguard against oppressive substantial proceedings.” arbitrary Smith 991, S.Ct. U.S.
997, L.Ed.2d 1041 scholarly phraseology of the ma- fails, impressive; it
jority opinion is my apprehension
however, to overcome shortcomings. constitutional potential Thus, these in order avoid infirmities, obvi-
constitutional complicating or frustrat-
ate the risk ing in- our correctional
administration of
stitutions, sentence can I would hold that imposed under Youth Corrections prosecution initiated
Act when appeared If that such indictment. dislocation cause severe
a decision would judicial, prosecutorial, or rehabilita- (D.Colo.1967) F.Supp. 1015, : Cunningham, Jones Cf. “im- between delicate distinction Tlie 242-243, 83 S.Ct. 9 L.Ed.2d prisonment”, in a “confinement (1963) supervision” prison treatment It is re- not relevant conditions and appreciated probably * * * may parole] [on strictions youth behind bars. who is offender important parts desirable the defendant fact cold process ; rehabilitative what matters period imprisonment subject they significantly petition- restrain “[a]pplying exceeding year, one liberty tilings those discipline er’s to do euphemism ‘treatment’ country men during free are entitled to do. not alter does confinement enough arithmetic, Such restraints are to invoke and is immaterial help purposes.” Pilkington AVrit. of the Great 1963). (4th Cir. *2 Hemmendinger, Washington,
Mr. Noel (appointed by Court) D. C. this pellant. A. Johnson, Mr. Julius Asst. U. S. Atty., with A. Messrs. Thomas whom Flannery, Atty., Terry U. S. John A. Judge,
Tamm, Evans, Attys., concurred Circuit John F. Asst. U. S. appellee. were on the opinion. and filed Judge, BAZELON, Before Chief GIGNOUX,* Judge, Judge District of Maine.
BAZELON, Judge: Chief Appellant violating was convicted of (purchase, sale, 4704(a) 26 U.S.C. § receipt drugs orig- of narcotic not in the stamped package inal without appropriate tax-paid stamps) and 21 U. (facilitation S.C. of concealment § drugs, knowing and sale of narcotic imported illegally). same to have been eight years He was sentenced to two charge years on the first and to five on second, terms con- to be served currently.
The Government two first witnesses before it rested. The Norman, one of Detective Winston arrest; police made the officers who expert the other was the witness who drug identified the as heroin. narcotic Detective Norman testified that he police two other officers went apartment of the who was indict- woman jointly ed this order to execute a search warrant. The morning. time 6:00 in When they entered, they found the woman and bedroom, un- both hiding dressed. behind top of a dresser the bed. On the narcotics discovered. When he was were get dressed, appellant asked to removed from a closet in shirt a suit bedroom, and underwear and socks pairs a drawer in the dresser. Several * designation Sitting by 292(c) U.S.C. § perfectly socks remained It true that this underwear and men’s guilty. drawer, of men’s and other items The trouble with ab apparel the closet. sence evidence is that it is consistent remained any hypothesis. is no answer claims that The Government say, does, as the possession, proves constructive *3 case,” a “close and therefore “one for permitted be that it must therefore the triers of fact.” defense en The go al jury, since the statutes to to the titled to rest at the the close of Govern jury commission to infer low the jury to the have possession. unexplained offenses convicted on the however, evi the Government’s To point at that would have been inadequate entirely to de dence seems speculation.2 utter The Government’s judgment of appellant’s feat motion in in case—taken and believed whole or con acquittal. must that We remember part guilt beyond rea show a —did being in a possession means sonable doubt. position or control exercise dominion to Reversed. thing.1 position a a should over Such lightly imputed one found not be Judge (concurring): in apartment home. If an another’s possession must ference constructive of at Judicial decisions have best estab- jury made, must have before be the guidelines lished ill-defined as to the ev- regularity with about information the identiary requirements necessary occupied question person in which the prove possession. Especial- special place about relation the his ly growing reported nar- out of cases ship renter. with the owner or prosecutions opinions are cotics the background necessary usually infor The built involved obscure strikingly reasoning suggests judi- certainly mation absent which resulting pres subjectivity. that cial confu- The Government claims apartment should of clothes in sion convince those who read ence men’s appel are cases that decisions in this area conclusion contributes “neither made a rather than a com- lant’s fortuitous selective residential,” prehensive application. Annot., 91 did not but it See nor but question (1963). The rhetorical clothes A.L.R.2d 810 offer belonged appellant. For or even fit legerdemain compounded in of this area shown, appellant all the has Government the law abstractions which invokes may guilty than an illicit of no more pear designed particu- a more to achieve woman, charged relationship. than to lar result in an individual case pleaded appellant, the same offenses as index and formalize a workable stabilize offense, guilty lesser included to a objective The more standards. entirely consistent the evidence possession the one reads on constructive hypothesis procured heroin that she deeper plunged a thicket is he into may have for her own use. subjectivity. cases enumer- Successive heroin, she even known about continuing re-interpretation ate presence, but more have used it in his judicial can be described whim- as required can said before sy. questions an- to which the possess basic himself. the heroin g., Ap- very one. a case to this ís similar 1. E. Miller passenger pellant App.D.C. in a car He was con- discovered. narcotics were District see Bar Ass’n Jury Columbia, as victed of the same offenses Instructions Criminal reversed, Columbia, in this court ease. This No. 93 District to intro- had failed prove construc- Bethea, U.S.App. duce sufficient evidence 2. United possession. (March 22, 1971), tive D.C. judicial “Always”, hair- should swer wavering “Some- splitting settles Inc., COMPANY, BROADCASTING KSIG times”. Appellant, library of flexible awith Confronted FEDERAL COM COMMUNICATIONS government defense abstractions, MISSION, Appellee, Barton W. Free struggle, too often must counsel alike land, Sr., al., et Intervenors. logically insoluble unsuccessfully, awith of record- sum total dilemma. The described can best be ed cases United States Court of de- symbiotic.1 prosecutor Both' Columbia Circuit. attorney present their cases fendant's Nov. knowledge with the unfortunate *4 possession is what law of constructive say opinion. It in our next we will it is illogical cha- that from the believe patchwork cathedra
otic flows ex definable
there is created a stable and
body It is the confusion law. thinking of
doubt unavoidable meandering
lawyers, created our own
rulings, unfortunate that results appellate trial and time which
waste of imposed
we have ourselves. opinion accurately majority
points affirmative conclusions out the negated by Govern-
which were require reversal and which doing present In so we ease.
make, acceptable disposition of an Lawyers in future
cases, of con- concerned as to the issue possession, will still find most simultaneously appellate
trial and courts
looking in both directions. approach (en banc) ;
1. The
to determination
usual
Collis v. United
U.S.App.D.C. 160,
the existence
possession
of constructive
(1957) ;
largely
People
Pippin,
App.Div.2d
a matter of tone.
v.
catalogue conflicting opin
attempt
(1962) ;
People