United States v. Eugene Jones

you go questions, will before the now also contends Rinieri give contempt Jury and the answers Grand to been found should not have questions?” addition, those In after Mr. ques refusing second answer the for to Marcheso had directed Rinieri to answer put never Court him because the tion explicitly to Judge question, the second the District it. directed him to answer immediately asked, you “What reason do transcript Court after the indicates that declining ques- for to answer that first to answer had directed Rinieri Again, referring tion?” contempt to the second question him in and found question, Judge asked, the District “Is refusing so, Marcheso, the Mr. to do your only ground Attorney, for refusal asked Assistant United States question answer finally, ?” And question: also for an answer to the second referring question, to the second you us tell “Mr. Marcheso: Will Judge asked, you District “Do still re- man in whose safe the name of the question fuse answer ?” money? you stored Moreover, failure of Rinieri’s counsel can’t, I sir. “Rinieri: objection to make of con- Honor, tempt I upon “Mr. Marcheso: Your based refusal to answer the question the witness answer the direct second support is further question.” appellant conclusion that the under- stood that the Court had directed him It Rinieri’s contention that direction to answer question the second aswell to answer from an Assistant United the first. Attorney adequate States not an sub- explicit for an stitute direction from a Affirmed. Judge, and District a federal only contempt can court witness be in Judge an order of a District order of an Assistant

Attorney. transcript We have examined the care- agree

fully and while we that it would

have been desirable for the District “unequivocally” Court to have directed America, UNITED STATES of question, Rinieri to answer the second Appellee, States, supra, Brown v. United 359 U.S. p. 50, 539, at subsequent 79 S.Ct. we think that the Eugene JONES, Appellant. statements of Bruch- No. Docket 27157. hausen were tantamount to such a direc- clearly that Rinieri Appeals United States Court understood being Second Circuit. that he was directed the Court answer, upon pain contempt, Argued Feb. 1962to a Panel. question as second well as first. Submitted into Banc Court appeared Rinieri first When before April 1962. Jury, ques- he had been Grand asked both Aug. 17, Decided tions, lawyer and he and his were aware being that he was taken before the Dis- compel in order Court trict answers questions. explaining In to both the con- tempt proceeding Rinieri, the District Judge several times referred to “the questions” questions” “those and at point said, you “I will ask whether you do, of what I directed lieu you, I stated to answer

what those Judges, Smith, Circuit

Moore

dissented.

argued only was not that'the conviction section sustainable as a violation of that but was ground alternative also sustainable on an judges under 18 U.S.C. unanimously thé court voted to consider up appeal in banc in order clear the any might our confusion that exist as to previous interpretations of stat these al., utes in U. v. et S. Santore 1960), certs. [D’Aria denied S., S., v. v. U. Lo U. Cassella Piccolo v. S., S., U. U. Santore v. U. Orlando S.], 746, 834, 835, U.S. S.Ct. 749, 752, 743, 744, 745, 5 L.Ed.2d and Hernandez, in U. S. v. (Moore, and id. see

J., dissenting). argument had, No further oral was and the case was submitted to the banc April 3, court on 1962. Chief deeming LUMBARD, disquali- himself fied, participate did not in the final deci- sion on the merits. appeals judgment

Defendant from a judge, conviction entered after the trial sitting jury, guilty without a found him of a substantive violation of 21 U.S.C.A. 174. At the conclusion of the trial acquitted charge defendant was on a conspiring with another to violate the Marra, City Anthony York F. New same section. Polsky, City, (Leon York coun- New Society, appellant. Legal sel), Aid Pursuant 23(a), to F.R.Crim.P. U.S.C., judge Morgenthau, Atty., the trial M. U. S. found the Robert follow- ing Rosett, evidentiary (Arthur I. Jonathan L. facts: S.D.N.Y. City, Rosner, counsel), York New “At January about 5:00 P.M. on appellee. 10, 1961 (Brown), Jacob F. Brown agent then an for the Bureau of CLARK, WATERMAN, Before Narcotics, Holly- was seated in the MOORE, FRIENDLY, SMITH, wood Street, Bar on West 116th be- KAUFMAN, MARSHALL, and HAYS tween Lenox Avenues, and Seventh Judges. Circuit Borough Manhattan, City WATERMAN, Judge, and State of Circuit New York and Southern CLARK, FRIENDLY, District of New York. whom KAUFMAN, MARSHALL, HAYS ap- then “He was and there Judges, concur. Circuit Eugene proached greeted appeal, (Jones) now before who banc Brown in- argued originally purpose court, quired being before as to the Brown’s Judges judges, SMITH, three in the bar. When panel informed sought purchase MARSHALL. Inasmuch Brown HAYS heroin, had been Jones advised appellant convicted of a sub- Brown that get any of 21 would be unable violation U.S.C.A. Brown stantive police appeal, upon and, had the Government had because arrested five evening outside, parked be- told Brown persons car the bar selling it was ‘Charlie’s car.’ no one was fore and that ‘stuff’ at time. after, “Soon came Charlie store window beckoned to Jones to introduce “Jones offered then outside, ‘connection, Brown come which to Jones’s Brown presence good In did. Jones’s Char- deals stuff.’ package lie handed contain- left the “Brown and then ing paid heroin and Charlie 115th bar and to West walked $150. Street, between Lenox Seventh Avenues, “Charlie then told Brown that if 111 West and entered They proceeded the latter more wanted heroin to to 115th Street. right Street, back to come 115th ‘ask for Jones rear of the hall where Big Mickey’ response Charlie or upon for and not to on knocked door and a anyone deal ‘Big Charlie door else. then asked for Charlie.’ The hallway opened by entered the man of 111 unidentified West was an 115th Street while not Brown remained who stated Charlie was with Jones. there then. “Brown if their asked Jones Charlie retraced and Jones “Brown give anything would of the Jones steps in front for the sidewalk to replied introduction building to said ‘There’s which Jones when (Jones) near- would pointing to man talk to now’ Charlie engaged Charlie later by. but asked Brown Brown and Jones left going conversation, (Brown) give what he man in indicated They agreed Jones. Jones then that ten dollars earshot. of Brown’s out gave would be fair and Brown advised then returned to Jones that (Brown) be sum.” ‘would get stuff, and that able findings supported are an ounce

price for was $150’ record, accept From these them. heroin. judge concluded, facts, trial “Al- though otherwise fails to the evidence then walked “Jones and Brown the heroin sold as afore- establish that building candy store, east of a they illegally imported (2) (1) was said had entered waited it, I find such Jones knew both they sat the store store. While solely by of Jones’s unex- virtue facts ‘Charlie was told Brown that possession, plained of the constructive himself; that he had a dealer heroin.” said Mickey name of fellow bagged stuff cut most his under 21 a federal offense U.S. It is drugs also, pointing import to a il- him.’ Jones 1741 to narcotic C.A. § provides: $20,000. 1. That section not For fined more than be knowingly fraudulently subsequent (as or or offense “Whoever a second de- brings any drug imports (c) narcotic into or under of the termined section any territory 1954), under or the United States Code of of- Internal Revenue jurisdiction, contrary imprisoned control or not its shall be less than fender law, receives, conceals, buys, sells, years forty and, or or than or more ad- ten transporta- any may dition, $20,- manner facilitates be not more than fined concealment, any tion, or sale such drug being imported narcotic after on trial for a violation of “Whenever brought in, knowing have the same to section defendant is shown to imported brought possession into the United to drug, been have or have had of the contrary law, conspires States narcotic such shall be commit of such acts violation sufficient evidence to authorize deemed explains be the laws the United shall unless the defendant conviction imprisoned five less than or more to the satisfaction of the twenty years and, addition, jury.” than 1961). drugs Hernandez, (2 legally or to deal in such illegally Those who exercise dominion and control have “posses provides imported. over are further narcotics said be The statute Malfi, sion” for a violation under United States v. trial that “Whenever on denied, 1959), is shown to 264 F.2d 147 Cir. cert. of this section the of the 361 U.S. 4 L.Ed.2d had S.Ct. have or to have (1959); drug, Mills, F.2d shall be such narcotic custody physical authorize evidence to deemed sufficient agent may explains the defendant be attributed conviction unless principal. Hernandez, to the satisfaction jury.” in this 290 F.2d 86 said, as the record We Inasmuch illegal moreover, importation in United Her case neither States v. shows working knowledge by nandez, supra, having nor Jones as to the that one actual origin drug, ap- relationship the conviction or a association sufficient custody pealed physical with those stands or falls on whether from drugs possession of Jones had or had so as to enable him to assure had ever drug. required production, difficulty, questions their are Two without evidentiary First, customer as a matter to be resolved: are the of course judge possession.2 held to facts as found the district have constructive support sale, But a sufficient to the conclusion he casual facilitator aof given principal possesses reached therefrom that Jones had con- knows a and possession trades in structive of the narcotics ? narcotics but the who lacks working Second, per- relationship principal if such a conclusion is not with that question delivery, missible that and the first is an- enables an assurance of may may negative, swered in the never- not be we held to have dominion and drug theless affirm ry control the conviction on the theo- over the delivered and can Moore, possession that Jones aided and abetted not be said to have of it. possess drug, executing Ibid.; Santore, who did in transaction, (2 1960); Moore’s F.2d that un- Cir. United States explained possession thereby Moses, (3 attributa- 220 F.2d 166 Cir. V. questions ble to Jones? We answer both Turning us, to the case before negative and reverse the convic- contends the dis Government tion. judge’s conclusion as to construc trict (1) Possession Constructive possession car of fact tive weight rying appel presumptive in an “Possession,” as used in 21 It further contends that we court. late though 174, even the statute U.S.C.A. § possible all inferences from draw penal one, must has not been construed is a namely conclusion, undue narrowness. The term has that Jones set interpreted place delivery, price, courts to en of been compass fixed dealings power disposition to control the controlled the between otherwise drugs custody. physical agree. as mere We cannot well Moore. States, legal possession Hernandez v. United is a con Constructive 1962); clusion, evidence, United States v. derived from factual peddler’s reliability v. United 2. Cellino F.2d 941 narcotics de- in drugs. And, any livering event, which has described drawing “(t)he most our own tenuous infer- believe decision since we any appellate Santore, which v. ence United States F.2d 51 disposition sanctioned”, governs 1960) court has States v. possession here, Mills, supra, p. 611, 293 F.2d at of constructive be the issue in this manner. Cellino to rationalized There is no decline follow the extent we here, however, present with our evidence as there was in it is inconsistent Cellino, the defendant vouched for decision. Nothing having physical other. in the record indicates one not pos- thing independent that Jones control had in fact nevertheless has of a thing legal contempla- Moore, narcotics, over the over session he Properly show- was able to assure to admitted evidence tion. produce price And, ing given could narcotics. unless we set the that a defendant say statutory “pos- phrase read narcotics, final are to for a batch had drug” transfer, able to session of the to mean narcotic as means of merely “participation delivery, well sufficient in a transaction assure involving drug” charge cannot a construc- narcotic rely narcotics, but we on constructive here to tive may not, however, and affirm the work backwards conviction below. having derive

first taken conclusion Aiding Abetting (2) support it. therefrom facts needed to question of We now reach the We evidence believe the whether, who, order to convict negates that defendant case a conclusion physical possession no of nar had and control over dominion cotics, purposefully aids abets3 an by Moore. to Brown narcotics handed other in the sale of narcotics which he pains first took in the instance possesses, the other knows sary it is neces find Moore indicate that Jones was prove either the defendant’s con the transaction unable to consummate structive of those narcotics dealing price his. The business illegal importa or his of their delivery place not even dis evenly question tion. That divided the purchaser until with the would-be cussed Santore, supra. Court United spoke No with Moore. one can majority judges A of the active now hold say these Jones established essential necessary.4 proof is such engages affair unless of the details governing statu- 2 is U.S.C. 18 § wholly unwarranted speculation principal tory provision.5 a It defines of the After consummation record. trial code, purposes of federal criminal agent told Moore transaction erase whatever dis- and its effect is directly him in the future purchase from previously existed tinctions anyone else. This to deal with not principals classes of different between negates a Moore statement principals and aiders or and between assure, as a of could matter Jones section does create The abettors. delivery by course, to a customer merely It offenses. substantive new might discover. punish- are the actors that are states who discloses, penal far the record defend- As as federal statutes. as violators of able nothing except knowledge short, to introduce a or did a intent ant if certain In willing buyer willing proven a seller and required in order to con- is to be go-between violating until such time a as of federal criminal' serve vict one willing willing buyer statute, proof seller and to convict one as an do business satisfied to with each and abettor will not be different. aider question p. 90; Monica, can little but United There be States v. 3. F.2d purposefully (2 1961). 400, aided abetted a Oir. But F.2d 402 295 see supra. States, 21 U.S.C.A. 174 if § of Moore’s v. United violation Hernandez possession attributable to Jones. is provides part: section That 5. acquitted “Principals on Jones was 4. Since con- count, “(a) spiracy we need not decide un- Whoever commits offense question States, against aids, abets, of whether United resolved conspirator counsels, commands, induces, procures is one attributable all. prin- Santore, commission, punishable supra; States v. is United See its Hernandez, supra, cipal.” States v. United 290 32 analogous necessary problem A to the to convict the vio

from that aiding, abetting, under lator, except com before us has arisen 18 U.S.C. 659, relating goods in inducing, procuring the manding, to the theft of proven interstate commerce. Under statute must be commission crime that, explana it has has been held absent an It rather than commission. actual fact, therefore, satisfactory held, of that a defendant trier proof recently charged as one who stolen indictment in an goods penal con infer statute sufficient warrant an violated a goods possessor proof ence that done victed so on knew the g., were stolen. E. Wilson United he aided and an actual violator. v. abetted States, 613, 895, g., Shaffer, 162 291 F.2d 16 40 E. v. U.S. S.Ct. United States (1896); 689, (7 Cir.), denied, L.Ed. 1090 693 certs. 368 U.S. United Minieri, (2 31, 914, 192, May 915, 7 L.Ed.2d 130 Cir. 82 S.Ct. aiding (1961); States, abetting On an 291 v. United theo Grant ry, denied, sought convict, 1961), 746, (9 F. 2d cert. Government 749 999, 627, Carengella, 368 L.Ed.2d States v. U.S. 82 S.Ct. 7 (1962). Cir.), Rappy, 881, 537 U. S. v. 157 cert. denied. 344 Cf. U.S. 179, 1946), denied, (1952), S.Ct. F.2d 964 cert. L.Ed. 682 two de fendants payoff. who had U.S. 91 L.Ed. 688 collected S.Ct. light (1947). this, proof guilty court In we cannot hold held that knowledge knowledge if one element of must or of was neces sary principal be established to convict a convict under 18 U.S.C. In proven case, similar need not be to convict Pearson v. United an aider F.2d and abettor. As Brown it was ing stated, recently of the Ninth Circuit said in a “Once recent dealing precise property stolen proved, decision with this issue: the burden is on proceed expla accused to with an and abettor “The is made aider nation to show his innocence. But ain principal, punishable not as an charged case aiding where he is special category, offender in some abetting, aiding the mere fact of encompass proof must and the abetting prop required as would be same elements erty give does not rise to of inferences principal: ” * other * * to convict guilty knowledge Our treat guilty principal ‘(T)o one find ment of the relation between 18 U.S.C. ground that he was an aider on the 659 and 18 U.S.C. 2 § has been § the proven abettor, must be that same. it See Lefkowitz, 1960). criminal intent of shared * * principal *.’ Johnson v. the analysis relationship of The the be- (8th States, 195 F.2d 673 United 2 tween 18 and 18 § U.S.C. U.S.C. 659 § argue 1952). Again, to that the applicable relationship is to the between necessary proof intent the of U.S.C. and U.S.C.A. 174. The § § an aider and abettor guilty make defendant Government must establish knowl- by edge attributing may supplied part pos- on the of the defendant to con- drugs aiding abetting narcotic vict him of of to the de- session the ille- ground gal may prove on sale of narcotics. It fendant the is an this directly principal knowledge may prove of a and abettor aider who it it through presumption possession, actual or to have shown construc- the of is possession, constructive, is to assume as tive the actual have defined purports premise which one discussion of term our that opinion. prove.” Hernandez The earlier Government rely States, cannot, however, on the mere of fact 1962). knowledge defendant’s the another pos- does sale, The violence this contention language of short possesses narcotics explicitly himself, of statute by session knowledge requires that the violator have requisite on scienter establish the part narcotic, illegal importation of of the unexplained An of defendant. merely knowledge com- not modity a act. criminal is a narcotics of narcotic, force is sufficient to legally possess is nar- However, one rejection of contention. proof of Therefore cotics. only presumptive com- of the evidence is The with Government is dissatisfied crime, the defendant mission may which of a drafted, particularly the respect as statute explanation of by a credible rebut need, order to convict theory Seemingly possession. his defendant, that he either had show the bur- behind the that shifts statute illegal importation of of the way proceeding of unusual den in this “pos- narcotic dealt with or he had goods, posses- possesses who drug. keenly are session” We criminal, is could well be sion which problem the acute cre- aware of national explain best the source able to narcotics, ated the illicit traffic theory, possession. reasons for his however, This general public share a detesta- charge permit us does Nevertheless, our business. principal’s an aider prima or abettor with personal revulsion at the activities possession, for that facie criminal sought federally proscribed to be here into a situation would force the abettor duty does not override our sworn as away explain require him would judges uphold and enforce the laws goods not his own but some- Congress Congress enacted them. And, one else’s of them. present Violation federal statute fact, principal inasmuch as the absent explicitly premised, apparently con- might possessed the narcotics purposes, requirement stitutional on explanation proving drugs that the dealt with the defend- legally imported either were of native illegally imported ant must have been charged origin, one an aider abet- into the United States. Govern- might principal tor to that be convicted ment’s dissatisfaction with that statute inability presumption his to rebut the brought is misdirected when to the at- though principal even in fact had not tention of the courts rather than to the penal violated a statute all. Hernan- Congress. attention dez v. United 300 F.2d 114 Cir. Legal We are indebted to the Aid So- keep We must in mind that we ciety appellate and to its counsel for a dealing interpretation are here with the presentation most able appellant’s placed to be on 18 U.S.C. and are not behalf. explaining 21 U.S.C.A. 174. itWhile tempting to rewrite the § The conviction of the defendant below Government’s as contentions if acquittal is reversed and his ordered. accepted, would affect criminal statutes pertaining not to traffic in Judge narcotics. MOORE, (dissenting). Circuit They would, moreover, introduce new legal question, important was There no principals distinctions between and aid- otherwise, justifying hearing en abettors, and precisely ers the result § banc in this case. This conclusion is designed 2 was to avoid. apparent by from the result reached the majority solely interpreta- which is an The Government’s final conten tion of the facts which differs from that required that is that all to con scarcely court. This the trial vict one of violated U.S.C.A. appellate function. proof participated 174 is in a majority com transaction with would recast the factual modity involved therein was a mold to have record establish narcotic. over control dominion and to have named friend met a named Brown

a man possession.” drug, and therefore response to merely in' and Jones (Brown) wished he statement present three with all The fact that there was purchase directly heroin said package Big handed the Charlie he Big Big named Charlie paid seller Charlie to Brown they As him. (Jones) procedure. introduce would normal real-life would be $150 noth- interpret did “defendant the facts Jones Certainly I not infer would buyer willing ing except by- “Being to introduce said, an innocent have would go- willing and to serve appearance seller to a between, to avoid the stander willing Big time as until such being possession, constructive in with do business package was satisfied to seller di- Charlie, please deliver willing buyer.” there this all Were rectly it unusual to Brown.” Nor is judge case, would attempt the trial were to possessor seller and the actual undoubtedly acquitted. in fair- But by saying, have intermediary by-pass judge directly.” to the oft- resort ness to the “In the future deal with me legal “having seen used cliche has made in This remark substance judge’s witnesses,” the trial heard findings many have the cases which my and, quite different possession. found constructive open re-interpretation opinion, not (not actually Therefore, while I can Examining by speculation facts us. expo- constructively) praise the excellent found, (not find) I that Jones observe Judge by law sition of the written interested in the transac- was far more distinguish WATERMAN, this I cannot Big telling Brown, tion than “Go to many we have case from the in which Charlie, 111 West 115th To Street.” posses- there held that was constructive Big contrary, held as his he Charlie out logically impel an All the facts sion. “connection”; represented he by contrary reached inference to that Charlie) “good stuff”; (Big dealt majority. participated Jones active- they when went to the address it was ly from the moment Brown indicated Big not Brown who Jones went to Char- arranged his desire the time he had apartment; lie’s him there I that Brown’s desire was fulfilled. meeting street, him but on the it was more than serious doubts that Big approached not Brown Jones “uphold decision we and enforce laws engaged Charlie tion; him in conversa- Congress them,” despite enacted who, it and was Jones after his majority belief are so Big Charlie, price talk with stated the doing. Big ($150) and secured Charlie’s will- ingness stayed to deliver. Jones Judge delivery (dissenting). completed. SMITH, Brown until Circuit bring directly Thus, acts Jones’s him I would affirm convic- I dissent. given the definition within facilitator, was a here. tion knowledge (Judge concurring) Waterman Clark Big possession, Charlie’s Hernandez, Cir., 1961, Big promoting actively the sale Char- 86, 90, person of a in construc- gain. for Jones’s lie possession, tive i. e.: partnership in the enter- far sowas Big “Moreover, person Charlie’s prise who is suffi- application persons possession for ciently associated with Jones’s illegal custody physical presumption of so that he difficulty, importation. United States San- able, See cause without concurring drug F.2d 51 produced tore, 2 Cir. to be a cus- pp. jury opinion can also be found tomer

Case Details

Case Name: United States v. Eugene Jones

Court Name: Court of Appeals for the Second Circuit

Date Published: Aug 17, 1962

Citation: 308 F.2d 26

Docket Number: 27157_1

Court Abbreviation: 2d Cir.