United States v. Ramon Hernandez

judge testing the trial counsel seek credibility. Waterman would direct in use witness certify whether to read the minutes and judge’s trial inconsistencies exist in the judgment of conviction is affirm- opinion. In certificate the event that the ed. inconsistencies, he indicated no would judge other- affirm. If the trial certified

wise, trial. remand for a new would Judge procedure, For such Waterman adopted

relies in al., 1959, supra. Al- Santore et though Judge and the Chief Lumbard opinion pro- author of this consider this unnecessary, cedure in deference America, UNITED STATES of position Waterman’s have submitted we Appellee, transcript grand jury the mony testi- judge below, to the trial and he has HERNANDEZ, Ramon Defendant- certified as follows: Appellаnt. undersigned, compliance “The No. Docket 25604. request Ap- with the of the Court of peals for the Second Circuit its Appeals United States Court of January order of certifies Second Circuit. that there are no inconsistencies 7, 8, 1960. Sept. Petitions filed testimony Pera, of Martin Decided Feb. only witness who testified both in the trial of defendant and before the grand jury, sufficient to have war- discovering ranted to defendant’s grand jury testimony

counsel the

said Martin Pera.” my opinion, the trial record does not request disclose a to read the minutes sufficiently specific clear or so that the judge fairly can be taxed with error failing pro- do so. The remedial suggested Kirby cedure and Santore necessary should not future, in the practice suggested in this judges.

is followed reason, the trial For this unnecessary place I think it is stamp approval practice. on either course,

Of if no inconsistencies are found ‍​‌​‌​​​​‌​‌‌​​‌​‌​​​​​​‌‌​​‌​​​‌‌​‌‌‌‌‌‌​​​​​​​‌‍errors, are no there reversible

case should not be remanded because of However,

failure to read the minutes. the decision as to whether the minutes Moore, Leonard P. Judge, should be made available to trial counsel part. dissented in can be made at the time the trial best judge light of all the circumstances presented during the trial. The trial witnesses, sees the observes their answering questions, manner of should be accorded discretion deter-

mining respective the methods which

«8 Jr., Gillespie, Atty., inconsistency may S. Hazard U. S. before George S.D.N.Y., request I. Gordon and Kev- inspect honor his the min- Duffy, Attys., very Thomas U. S. Nеw Asst. utes. inBut case we held oth- City, petitioner erwise,

York States. (now Chief) pointed out, Cir., Lumbard 271 F.2d City, Dobbins, David F. York New for 661, 666: petitioner Ramon Hernandez. showing “Even if there were no possible inconsistency of in the testi- CLARK, WATERMAN, Before mony case, of perjury a witness in a Judges. MOORE, Circuit any case, or indeed in tes- where the timony only of such witness is the CLARK, Judge. against direct evidence the defend- The United States and the defendant- secrecy ant and no valid reason for appellant rehearing petition both of exists, upon request the court should August 24, Cir., our decision of grand jury examine the minutes of 71, reversing con- F.2d defendant’s possible a such witness for incon- viction of violation of the narcotics laws Spang- sistencies. v. remanding the for a trial. case new elet, supra Cir., 1958, F.2d [2 Our trial decision was on the based necessity The 338]. of reason for the inspect of court’s refusal the minutes to a such rule is obvious. See Jencks grand Agent jury testimony the of New- States, 1957, v. United 353 U.S. kirk, principal witness the Government’s 667-668, 1007, 1 L.Ed.2d 77 S.Ct. at the trial. The asserts Government Pittsburgh 1103; Plate v. Glass Co. required that the trial court to States, 1959, United 360 U.S. requested inspection make the because 407-410, 1237, L.Ed.2d 79 S.Ct. point the defense counsel did not first (dissenting opinion). Surely possible inconsistency out a trial between the defendant should have access to testimony. Alternatively grand jury conflicting given all testimony under inspect it the refusal to contends oath the one direct witness constituted harmless error. cross- its gives him the lie. It all offends petition defendant-appellant a clar- seeks require sense of fairness to first a regarding applicable ification the rule showing inconsistency possible arising presumption the from preliminary to examination of the prosecution of narcotics a under judge.” minutes trial the U.S.C. 174. While we adhere to our § contrary The is also made clear our explanation decision we think a fuller decision at same the time in United proceed to it in desirable shall make McKeever, Cir., v. States 271 F.2d discussing respec- points made “ * * * note where we stated: petitioners. tive judge’s the trial utes, of min- examination petition. The requiring Government’s showing without prosecution possible failed inconsistency, asserts that this court proper properly apply to stated in Unit the rule and desirable course.” Occasional dicta Zborowski, Cir., suggest may appear ed States v. 661, 665, lack of indicated “The rule is that when thus: inconsistencies additional make- possible weights decision, points in out the defendant consistency we but have never self-defeating between the trial and the such enforced condition government testimony destroy grand impor- jury aof the usefulness of this judge requests trial to tant For tool of cross-examination. nei- witness grand jury min nor his counsel has the witness’ ther defendant examine utes, grand (indeed jury request then read the must minutes it would not be made had them in camera.” And contends minutes require hand); particu- requires a bill of an affirmative rule this support request showing possible when lars defendant deny any vitality can- tain whatsoever. We counsel situation nature rehearing. deny petition rule the Government’s tois details such not know United done. we have That itself. defendant-appel Petition Cir., 258 F.2d Spangelet, 2 v. States cross-petition lant. The seeks clarifica Cir., Tomaiolo, 2 342; pos question tion or not whether Giampa, 411; alleged session of co- narcotics appli conspirators permit sufficient appellant cation to argues that also The Government guilt up which 21 U.S.C. raises independent make an court should possession. important That study grand minutes to deter receive, it statutе makes ceal, buy, con crime or not inconsistencies mine whether any or sell narcotic which argues inconsistencies It no exist. that illegally im the defendant knows was found, consequence that of bewill ported into the United States. also It as dismissed the then be error below can knowledge any person punishes who, with to are referred error. harmless We illegal importation, conspires of the to Cir., Kirby, F.2d v. 2 273 commit the crime or facilitates it. above in 956, failed to the trial court where Santore, Cir., In United States v. Nov. spect grand this jury minutes and the 16, 1960, 51, majority of convic affirmed the court nevertheless rehearing court on a in banc held that True, min we examined the tion. there aiding defendant could be convicted for appeal record on contained in the utes abetting, 2, 18 U.S.C. commis the § no inconsist that found and stated we sion of the crime defined U.S.C. § ground But the encies. our decision an must Since aider abettor his abandonment of was the defendant’s knowledge same have the re intent inspection after Assist demand for the quired principal, however, proof of the Attorney ant United States said knowledge illegal importation also by And were not available. examin so necessary aiding ato conviction for ing minutes had unavail the been abetting. pointed opin This is out in the trial, pur time we able at the did Judges Friendly ions of Waterman whereby port procedure to sanction the case, suрra. in the Santore inspect min trial court could refuse to Moreover, proving separate utes were at hand. wffiich Instead of the court, including case of the was a trial to as elements of 21 U.S.C. § knowledge importation, prosecu case of situation the more recent Santore, Cir., advantage statutory may United 1959, Oct. tion take of the appellate F.2d where stated in statute thus: panel asked the trial court for later re on trial “Whenever for a violation of this report.1 proper view and The time section the defendant have is shown to inspection trial, possession is at or when inconsis to have had of the narcotic may possession drug, tencies discovered bе used for cross- such shall deemed be complete by A examination. failure sufficient evidence to authorize convic inspect explains trial court to the minutes of tion defendant unless grand jury by testimony possession Govern the satisfaction major jury.” facilitates, person ment’s witness cannot be remedied Thus a who inspection appellate abets, conspires court, or at or violation of aids jury case, possible least in a where the and who can U.S.C. be shown searching possession drug, effect of a cross-examination perhaps may of the have can be appraised independent proof cannot be by as it be convicted without knowledge judge sitting illegal importation. a trial alone. doc The problem presented present trine of harmless error cannot difficult extend “possession.” ed meaning if the so far announced rule is re- is the case point 1. This adverted to in the F.2d 51. also United See States v. opinions Cir., banc, Giampa, Nov. 290 F.2d 83. spoken Admittedly pos has we so held. well established It is development physical con cannot foretell the eventual exist without session can law, domin but it does not seem amiss long has defendant tact so suggest drug. pre- the obvious over the ion and control charge caution that Cox, Cir., he avoid a based States v. legal principles phys held half erroneous without dominion and control Such appellate our bench. “construc custody been termed ical tive,” has actual, possession. opposed original From the recital in our agent custody by Physical employee or Agent testimony Newkirk’s dominates, or whose actions whom one trial, appears it that defendant did control, to constitute can is sufficient one physical possession not have nar prin possession such constructive cipal. cotics, Lopez but introduced Newkirk to Maroy, Cir., partners supplier” —“one of his or his 663, certiorari denied 355 U.S. Fanfan, Lopez —and took Newkirk to Moreover, 412, 2 L.Ed.2d S.Ct. made the actual sale. Thus the- sufficiently person associated who is question of constructive de custody persons hаving physical all-important. fendant became Since the- able, difficulty, to so that he is without charge go beyond general did not lan drug produced cause for a cus be guage statute, explain or or define jury tomer can also be found a have meaning possession, a remand for drug, dominion and control over the and required a trial new is on also this- possession. therefore Cellino v. United ground as well as on the refusal to in States, Cir., 941; F.2d 9 276 United grand spect jury minutes. The Gov Malfi, Cir., 147, States 3 264 cer v. urged ernment that the conviction be af States, tiorari denied Malfi ‍​‌​‌​​​​‌​‌‌​​‌​‌​​​​​​‌‌​​‌​​​‌‌​‌‌‌‌‌‌​​​​​​​‌‍United v. treating- theory firmed on an alternative 817, 63; 57, 4 80 S.Ct. L.Ed.2d Unit U.S. defendant aider or abettor of the- Moia, 255; Cir., ed States 251 F.2d v. possessor; actual but that was not even- Gallegos States, Cir., v. cf. United charge, mentioned in the and in. hence is hand, F.2d 694. On the the casual other no event available to sustain this verdict. given prin facilitator knows that a States, 1, 10, Pereira v. United 347 U.S. narcotics, cipal peddles but who does 358, 435; Nye 74 S.Ct. 98 L.Ed. & Nis working relationship have with that States, 613, 620, sen United v. 336 U.S. principal which would enable him as 766, 69 S.Ct. 93 L.Ed. 919. delivery, sure lacks dominion and con possession. trol and does not have yield in our horror at the- to no one We Possession, or construc trade. Neverthe actual of the narcotics evils enforcement, respect tive, here- shown with to each that law must be we feel less facilitator, conspirator, cases, or aid be in accordance in must individuаl all legal and, principles in- Possession another abettor. American er and with Congres go beyond event, not sufficient. See must not defendant itself is Santore, Moreover, suppression- supra, 2 v. directives. sional United hardly 1960, 51, 16, opinions turn- trade can the narcotics Nov. Judges of uniquely Friendly. pre of the unusual on extension Waterman It sumption six accorded the Government in three of the members of the true that 174, at. case con for Government has Santore held the U.S.C. statutory possession by prohibitions- trary many other view that a codefend hand g., may See, proceed. it e. sufficient to sustain conviction of under ant was though 4704, 4705, 7237; Papa abettor, even U.S.C. an aider §§ States, Cir., not have actual or did constructive lardo v. latter major possession. But since denied it was not a certiorari 349 U.S. view, ity L.Ed. 1252. it cannot be taken as We know the law S.Ct. governing prosecutions- why retrial all narcotics of this case unless no reason perchance Supreme on this one statute when- Court meanwhile be based should prosecu- legal fact is not too may that it be avoided conflicts great place possessor burden to on other statutes. tion under explanation the burden because the re- be must therefore conviction possessor should where obtained know a new and the action remanded versed drug. As an additional reason charged where should pos the limitation of sessors, opinion. The above accordance pointed possible counsel out rehearing is petition for defendant’s therefore, objection, pre constitutional were consideration, also de- after sumption construed, so because nied. the doctrine there be some rational presumed connection between the fact MOORE, Circuit P. LEONARD (Tot States, basic fact v. dissenting part). (concurring part; 319 U.S. 63 S.Ct. (and the To difficulties understand the 1519; People L.Ed. Morrison of State case, delays) presented attendant California, 1934, 291 U.S. 54 S.Ct. background reviewed. must be the factual 664; Constitutionality 78 L.Ed. Hernandez, July 17, 1958, with de- On Presumptions, Rebuttable 55 Col.L.Rev. (alias fendants, Fanfan and Doe John ). (1955) Choca) Pepe, indicted in alias were argument pos In brief and in receiving, (I) for indictment two-count presumption point, session Hernandez’ concealing, facilitating selling just primarily counsel relied on our then transportation, sale of concealment announced decision in United grains nar- of heroin “after the said al., Santore et 290 F.2d 51. In that imported and been cotic case, the conviction of Santore on Count brought contrary into the United States Two was reversed two members because knowing law, said narcotic that the to panel in of the believed that there was drug imported been and had theretofore contrary proof a voice brought sufficient that Santore “had the United into ” ** * deciding, control, in or what was (21 could U.S.C.A. to law §§ to done with the and that conspiracy be narcotics” 174); (II) for a to vio- and intermediary only he “functioned as an and 174. Doe” late Sections 173 “John agents, purchasers, the as and guilty between pleaded Hernandez before trial. partners, his sellers.” Casella and This, were tried before a and Fanfan majority held, inadequate the was September on counts on convicted both support physi to the conviction “absent 25, 1958. drugs” custody the or “he cal that ex insufficiency government’s The type that of control over them ercised proof establish that Hernandez had disposition and their which we hold con possession or control of a narcotic possession.” United States v. stitutes imported it was that knew that was or he Cir., 1958, Landry, was directly upon appeal. us A before also cited. important point of error second was government applied in The for Santore namely, raised, the trial court’s refusal by rehearing in banc which a divided possible inspect inconsistencies the for granted (March 9, 1960). Re- court'was Jury given testimony minutes of Grand argument 16, 1960, on heard March was government’s principal by the witness. Judges (Judge five then-active counsel, with conceded Hernandez’ a member became of the Court Smith government’s difficulty of the awareness September on considered obtaining affirmative briefs). case on record and of the narcotics because of the source Pending therein, very determination Santore and of the traffic nature illicit August 24, 1960, opinion reasoning we filed our persuasive advanced the on proof prob- the error in Because of theory this in Hernandez. that to overcome Jury minutes, examining Congress pre- the Grand limited created the lem (Per knowledge reversed Curb was sumption conviction basic conspiracy,!’ a new tive am) member in the case remanded criminal and the (United Hernandez, 2 membership nevertheless that “was trial 1960, that, pre- physical custody 71). such drugs, absent of the The type he because sumption exercised that control not discussed issue was disposition over them expected and their we hopеfully which it was possession” (290 hold for retrial constitutes reached time Hernandez 51). Lo an- Piccolo’s conviction Count have been would some decision majority II was also court in reversed because the in banc nounced either believed ac- that his Supreme Court conviction would be sus- by some Santore or “only tained pos- petitions filed find we had tion on he the certiorari drugs” because, session of the in case. in the Santore other defendants opinion, their there was no evidence 7, 1960, prior to September On possession. control or in banc any decision in Santore peti- filed a court, for Hernandez counsel However, changed by result rehearing reconsiderаtion tion for the decision of the banc properly quite the decision in which original affirmed the San- convictions of accurately pointed re- out that tore and Lo Piccolo on Count II. great might un- “an exercise relied facts written certainty” instruc- that “without by Chief Lumbard showed that Lo apply Court as to how tions from this possession” Piccolo had “constructive facts at a retrial the law to those case, actively assisted, heroin and that Santore placed in a court will be the trial aided and abetted in the heroin sale. having guess, appel- situation of clearly ques- The issue was “The stated: exactly peril, lant’s what [Hernandez’] presents whether, tion that now itself is is as law this Circuit the state of the in order purposefully to convict one who establishing requisite proof en- aids and abets others in the sale of nar- titling prosecution to use statu- they possess, cotics which he knows it is tory presumption in 21 U.S.C. 174” necessary person- to show either that he (Pet. Rehearing). ally Because of physical posses- or constructive bearing would that a decision Santore sion or that he knew requested Hernandez, have on his counsel imported.” Judges had been Three Judge to the district not to return case (Chief Judges us Lumbard and Smith until was court for Santore de- Moore) retrial held “that such is not request. necessary.” to that separate cided. We acceded Judge opinion, In a possession wrote that Smith “the of one 16, 1960, the in banc On November should be attributed to the other and the opinions. The effect court filed four brought presumption play, into both in (21 174) presumption U.S.C. § necessary the establishment scien- primary in Count of the in- issue II conspiracy ter on the count and on the against Lo Piccolo dictment Santore and substantive counts.” charging a sale heroin on December Judge They had disagreement, been convicted Waterman’s appeal, Judge Upon concurred, Santore’s convic- which trial. Clark is succinct- by ly tion on Count was reversed divid- II summarized in his statement that Judge (Judge Hand and personal ed court “Thus under U.S.C. voting Judge reversal, possession, wise, physical for Waterman whеther or other- voting affirmance). Byers1 for In sub- is as essential the conviction of majority that, despite offending held stance the an aider abettor it is to gave purchaser purchase principal that the conviction as a fact of one who Santore, specific Judge ($6,000) price he “functioned offense.” commits intermediary” that, only Friendly al- found the evidence sufficient to “was, though question, justify affirmance without an ac- Santore and Lo sitting by Judge desig District for York the Eastern District New nation. might sitting, be but II views are a reversal under Count convictions Piccolo likely. would opinion affirming on the But this result even here differed with subject Lumbard obtain were Chief of the effect of disqualified (18 participate. might U.S.C. not As abet aid on one Santore, a three-to- an in banc §2). three vote would on the affirm background essence, This, is the contrary presumption point in- and no opin- majority against present which the seeming this structions issue. If would De- viewed. ion in Hernandez must by legislation impasse or Su- is not cured judge in San- spite that the trial the fact preme problem, Court resolution of the holding that the affirmed in tore was his every narcotics case this support convic- sufficient evidence was point possession presumption which the on Count Piccolo tions and Lo of Santore involved, were banc would submitted in II, majority overturn would now By pattern follow the such Santore. holding “Pos- that Santore decision judges means would trial be assured constructive, session, must be actual or degree could with some of assur- respect individual to each shown with safety principles ance and be- follow the facilitator, conspirator, or aider by Judges Lumbard, lieved Smith and defend- another Possession abettor. Moore to be the law. They con- ant is not sufficient.” itself Probably in no other district in the members of that three active cede country problem presented is the here contrary pos- court “held view frequently more encountered than in the sufficient session a codefendant was (see Ap Southern District of York New of an aider to sustain conviction pendix) shipping . The vast volume of though abettor, did even latter the Port of New York area accountable possession.” actual have or constructive importation and facilitates the They say three that the distribution, narcotic sale and judges in to affirm Santore sufficed use in York and inland New cities. De majority view” “not spite the efforts of the Federal Narcotics govern- and “cannot the law be taken as Bureau the traffic flourishes. Recent ing per- the retrial this case unless prosecutions2 giant “rings” disclose Supreme chance the Court meanwhile has scope the nationwide their activities. spoken and so held.” an endeavor As is not unnatural in a business so illic prevail insure that their views will it, sales and deliveries of heroin аre not future, they and remand “for a reverse day carried on over the counter in broad charg- new trial where the should be light. maneuvers, first devious opinion.” ed in accordance with the above negotiate the sale then to effect de Presiding upon livery, varied, imaginative the retrial and faced are and wor thy dilemma, hapless story with is the of what the best detective authors. charges Anomalously enough, possession, to do? he kept If rules or un long opinions in accordance with the possible, dercover as as seems to be Judge Judge of Chief Lumbard Starting entrusted to minor characters. Santore, in concur- with Smith Moore the seaman who for a small fee ring, may brings expectatiоn every have of ship, the “stuff” from the correctly believing ruled, pro- drug fairly hiding that he has remains well in until vided, however, appeal ready cutting sale, is Very heard and retail. panel upon negotiator rarely which are two three does the the sale Judges possession. Mysterious meetings concur in this view. who If have having contrary telephone two of chance the three between calls several dif Aviles, Cir., 1960, Cir., 1959, Stromberg, United States v. United States v. 179, 256, 1959, certiorari denied sub nom. 268 F.2d denied certiorari States, 863, 123, 1960, 102; Genovese v. United U.S. 80 S.Ct. 4 L.Ed.2d 974, 1059, 1010; al., supra. 4 L.Ed.2d U.S. 80 S.Ct. United States v. Santore et usually necessary persons persons be with cotics traffickers as afflicted ferent are package disease, impose trifling to and ineffec- fore there a disclosure that is may Little, anything, tual in an sentences. how- behind a if be found radiator ever, room,4 house,3 apartment in has been in a done to enact a modern- hotel automobile,5 day code, prosecutor or in enforcement fair to trunk of an in the accused alike which realistic hollow of a tree.6 is light practices. modern-day The nar- delivery, frequently To effect runners cotics dealers not unmindful are fees). (generally are used for small advances made between 1866 and persons little, any, knowl- Such edge have transporta- particularly in science and guiding and of the network which is tion, and their usefulness in their busi- controlling However, fact the traffic. оne However, ness. the statute with its emerges long certain, namely, as that meaningless presumption and archaic ‍​‌​‌​​​​‌​‌‌​​‌​‌​​​​​​‌‌​​‌​​​‌‌​‌‌‌‌‌‌​​​​​​​‌‍re- links, chain of aids and each which mains the same. abets, facilitates, agent, par- acts as an In 1941 this court in ticipates say or “con- statutes Cohen, Cir., 1941, spires,” certio- tightly enough forged sup- is States, rari denied port Bernstein flourishing looking business. 315 U.S. L.Ed. 1210 picture S.Ct. at realistically, such a nomen- nom., rehearing sub denied participant clature of the role of each is U.S. pure 62 S.Ct. 86 L.Ed. semanticism. The “construc- words Cohen, affirmed the conviction of possession” indicted “type tive or “control” or violating Referring meaning. U.S.C. 174. subjective § control” have no aiding abetting to the effect of thе And if actuafpossessor upon charged statute defendants with person only be the endowed law violation, such the court knowledge with said: importation and hence “ * * * subject conviction, enforcement will be under the second stat- limited to those seamen laden ute U.S.C.A. 18 U.S. [18 now § cargo their boys delivery waddle piers down or making 2], prin- C.A. abettor a slightest who haven’t necessary idea cipal, it that each where the “stuff” comes from. the defendants should have only narcotics, but or one Congress years, For some has focused possession more them had while its evil. attention the narcotics others aided in the illicit trans- Lenghy reports have been issued. action (summar- facts conclusions thеrein page F.2d at incidental” 124 hereto) incompletely appendix ized in an can see no lack of “We justify would the enactment measures against any of the defendants. prevent most effective heroin from They all seem to have been thor- reaching, being or in effect often implicated oughly committing in or upon, po- forced unfortunate addicts or aiding abetting com- tential victims. Yet charged” mission the offenses (applied created opium statute page opium derivatives 1909 and During 1922) years to all narcotic remains recent this court has re- virtually language today. same principles To these lied as set forth in Congress sure, has minimum enacted the Cohen case, сase. 1955 Rocca La sentences, largely although supra, payment to counteract a tend- was made ency by regard judges, Rocca, possession some who all nar- La he did not have Rocca, 1955, Cir., States, Cir., v. La United States 2 1955, 6. Brown v. United 9 222 224 F.2d S59. F.2d 293. 1958, (1866); al., 7. See 14 Stat. 179 v. United States Santore et 290 35 614 Stat. (1909); (1922). F.2d 51. 42 Stat. 596 5. Ibid.

95 having Turning only arranged delivery by briefly we find the facts through purchaser by approached heroin Hernandez nar- obtain was agent person. supplied by a third cotics information who said he was interested purchasing affirmed8 quoted In upon conviction was 1958 heroin. Moia’s Hernandez posses- price agreed quan- neither his tity facts which showed to obtain the sion, price, receipt purchase dеliv- proceeded nor desired. He then to make arrangements ery. through orders merely delivery Moia received Delivery pay- telephone. person, Lopez, over the third whom he described by partners ment a co-defendant. supplier.” were handled as “one of his or his defining charge upheld Lopez, present The Hernandez, court then arrange delivery aider and who assists left abettor “one “to for the of a half- the commission of In 1960 agent] a crime.” ounce of heroin to me [the argued government (the agreed price Cox9 that the $75.00” between proved possession and, hence, no agent). Lopez upon Hernandez and the knowledge importation, but unlawful his return сhecked with Hernandez as to adequate (the agent). agent we held evi- there his customer The custody. power Lopez dence of his to determine left and walked a dis- short person, tance until met a fourth Other circuits have followed the Cohen Fanfan, upon being by Lopez told Chiarelli, case doctrine: United agent guy that the “was the who wanted Cir., 1951, 528, 192 F.2d de- 7 certiorari get stuff,” produced the heroin and 913, 359, nied 342 U.S. 72 S.Ct. 96 L.Ed. agent. delivered toit 683, 1952, 950, rehearing denied 342 U.S. 706; 551, 72 96 L.Ed. S.Ct. Brown v. pattern The of this is not transaction 293; States, Cir., 1955, 9 222 F.2d unlike the routine found in the cas- cited States, 1957, Cir., Alexander v. United 8 es, namely, negotiated the sale and the 351, 241 F.2d certiorari denied 354 U.S. price (here fixed the seller Hernan- 940, 1405, 1539, 1 L.Ed.2d S.Ct. re- dez) delivery and the made others in hearing 1957, 852, denied U.S. manner, directly, at least fair 78, 61; S.Ct. L.Ed.2d United States v. inference controlled the seller. Maroy, Cir., 1957, 663, certi- Since this case must be remanded in orari denied 355 U.S. 78 S.Ct. any event because to in- failure 414; 2 L.Ed.2d spect Jury my minutes, the Grand dissent Malfi, Cir., 1959, 264 F.2d certio- portion majority is limited to that rari denied 361 U.S. 80 S.Ct. possession which relates to the 63; 4 L.Ed.2d Cellino v. United presumption point. States, Cir., 1960, F.2d 941. Landry, In United States v. Appendix A Seventh Report A. The Illicit Traffic, Narcotics discussing seemed more interested in Judiciary, Committee on the “possession” difference between Senate, Summary “ownership.” The heroin assumed Preliminary Findings and Recom- by Landry possessed by to be owned but mendations the Subcommittee on party. a third said that “own- Improvements in the Federal Crim- ership proof possession any is not Code, Congress inal Session, 2d 8Uth more than of owner- Report (1956): Senate H40 (at ship” page 431) and chose not to apply ownership. 1. “The United States has more nar- hardly repudiation addicts, This is of the Cohen cotic both in total numbers and populationwise, doctrine followed them in country Chiarelli than other Maroy. in the Western World.” Moia, Cir., 1958, Cox, United States v. Cir., 1960, 9. United States v. 258. 802. smuggling operation 60,000 in the international a) addicts At least target.” as a States

United States. through drug addic- 7. “Subversion b) Narcotics Bureau of Federal addicts, tion is an established aim of Communist 30,000 new names has of II, Red China Since World War being China. reported rate of names pushed exportation to serv- has of heroin percent per are less month. 13 1.000 icemen and civilians of the United States years age. than 21 of and other free nations of world.” c) probably has na- more addicts than all Western a) of one “The United is targets tions combined. principal of this vicious drugs Peip- illicit traffic in 2. has trebled “The illicit traffic ing regime (1) dol- seeks to obtain II.” in the War United States since World strategic purchase lars to materials changed a) 1 in Ratio has foreign pay operatives and to 3,000. 1 in 10.000 (2) susceptible in- demoralize b) 2,000 persons arrested each military dividuals our services charges. month on narcotics general population.” $500,- c) costs over Traffic now 8. procedures “Criminal laws and are 000,000 per year. apprehension insufficient to insure the “Drug responsible for addiction is punishment offenders.” narcotic percent approximately all crimes a) interpretations Judicial of con- largest metropolitan committed stitutional search and seizure safe- percent all areas and crimes guards, wiretapping restrictions, nation.” granting of low bail bonds and limi- a) percent of traffic concen- agents tations on federal narcotic popu- trated 43 of most nation’s partly responsible. are lous cities. 9. “Penalties for narcotic violations b) responsible for a Addicts are are neither commensurate with the seri- large thefts, majority burglaries, ousness of the crime nor sufficient to re- prostitution and offenses. other profits.” move the contagious. “Drug is Report addiction B. Control Act Narcotic spread with cancerous the habit Ways the Committee Addicts rapidity and associates.” Means, their families Rep., Report House House Congress, 2d Session 84th ap- a) percent of the addicts (1956): began pearing subcommittee before using drugs report- 1. “Enforcement of “friends” officers have because ed present certain weaknesses in laws “associates.” your and have called to the attention of b) percent of known Less than subcommittee certain court decisions now confined. addicts are have tended to vitiate the effective- which ness of problem faces 5. “The United States existing leg- Federal enforcement thriving in nar- international traffic islation.” drugs. Turkey, China, Red Leba- cotic upsurge 2. “In 1948 an in addiction primary sources non and Mexico are the teen-age and an outbreak of nar- use of reaching States, and the United heroin By occurred. cotic narcotic inadequate.” are controls international grave approached proportions addiction a) Actual scientific medical metropolitan in certain areas the coun- opium annually; is 500 tons need * * * try. appear Several factors production 12,000 world tons. total responsible propor- to have been for upsurge “Recent seizures heroin co- tions of the the United quantities namely, point States; up in record caine an increased influx of Italy, internal controls where America, UNITED STATES down, temporarily broken followed Appellee, deluge China Red of heroin from drug to obtain as a means used the which foreign exchange PANICA, Defendant-Appellant. Victor weapon to de- and as people countries.” of free moralize the No. Docket 26689. important fac- “Perhaps most 3. Appeals United States Court of reducing the incidence addiction

tor in Second Circuit. although that, narcot- was the realization Argued Jan. 1961. increase, generally ic were on the abuses ‍​‌​‌​​​​‌​‌‌​​‌​‌​​​​​​‌‌​​‌​​​‌‌​‌‌‌‌‌‌​​​​​​​‌‍Deсided Feb. imposed where the courts areas those prison penalties addic- severe traffic non- minimum or at a virtual

tion were

existent.” pro- “Inquiry the enforcement into

gram revealed serious obstacles placed path of enforce-

have been ment officers as the result of recent tended, These decisions have decisions. circumstances,

under to furnish certain immunity with a cloak of the criminal society

the detriment of as a whole.” country those “In areas sentencing leniency

where we found prevailing practice, addiction exception traffic without narcotic are

on the increase.”

Appendix B report The annual

Attorney for the Southern District Attorney New York General commencing period terminating May June heading under shows “Crim- follow-

inal Division Statistics” ing: period “The statistics ‍​‌​‌​​​​‌​‌‌​​‌​‌​​​​​​‌‌​​‌​​​‌‌​‌‌‌‌‌‌​​​​​​​‌‍for this reveal following: pending

Cases June 1959...... during period. Cases .1,046 commenced during period......1,129

Cases closed pending May 31,

Cases 1960...... 536” cases, figures

Of these from the Clerk’s following

Office disclose that were

narcotics cases: pending Cases June Ill 1959...... during period.. Cases commenced during period...... Cases closed pending May 31,

Cases 1960......

Case Details

Case Name: United States v. Ramon Hernandez

Court Name: Court of Appeals for the Second Circuit

Date Published: Feb 14, 1961

Citation: 290 F.2d 86

Docket Number: 181, Docket 25604

Court Abbreviation: 2d Cir.