*1 787 judgе hence correct The trial denying acquittal. A in the motion America, UNITED STATES of however, since will be required, new trial Plaintiff-Appellee, accordance hе instructed —in v. 4704(a) language of 26 U.S.C. CHRISTION, Defendant- appellant’s possession un of the —that Appellant. more, stamped cocaine, without UNITED STATES of prima “vio of a fаcie evidence constitute Plaintiff-Appellee, applied to cо statute.” As lation of the v. cases, presumption has been caine this Henry FRAZIER, L. Defendant- authoritatively unconstitutional. held Appellant. Nos. 24395. (1970). 610 90 S.Ct. Turner United States alreаdy Court of has This court Ninth Wong, Circuit. retroactively, v. United States May 14, 1970), a result 1077 v. required in cаse 1970). Nor Scott, 425 55 object in the does Fueston’s failure a waiver.
trial court constitute supra. Scott, v. er
We cannot Chap
roneous instruction was harmless. California, 386 87
man U.S. (1967). The evi L.Ed.2d 705 agаinst from over
dence Fueston was far
whelming, Harrington California,
U.S. (1969), consisting solely of as did it
agent’s vigor testimony Fueston —which ously errors in Constitutional rebutted. instructions, mоreover, may scrutiny
require closer than er somewhat in since
rors the admission merely one element affect not guilt, the manner but remain
which the evaluates all the
ing Bollen elements.
bach,
966 S.Ct.
(1946); Note, 83 Harv.
L.Rev. Here pre well have concluded that
sumption bypass dif authorized it question appellant’s participа
ficult sale, guilty
tion in find him and abetting showing
aiding merely on
that he had had actual or constructive
possession of the cocaine.
Reversed and new for a remanded
trial. *2 Atty., (argued), Linnell S. S. U. Vegas, Nev., appellee.
Las for JERTBERG, Before Judges. BROWNING, Circuit PER CURIAM: challеnge to Defendants’ constitutional by the inference authorized U.S.C. § disposed 174 as to heroin cases of Turner v. United (Jan- uary 20, 1970). however, agree We prejudicial in in- еrror occurred structing regarding jury in- the the ference. jury informed
The sat possessiоn to the “explanation of the jury,” to in sec referred isfaction of the “inno explanation of an tion law. the possession. This is cent” possession of Even if the defendant’s jury drugs is to the narcotic either reasonable doubt if there is contrary drugs imported to were the they were knew law that the defendant unlawfully imported. United States (2d Cir. Peeples, F.2d Llanes, 1967); F.2d States v. Chavez 715-716 Cir. 88-90 343 F.2d States, 298 1965); Griego v. United 1962).1 (10th Cir. important, instructiоns the More possesion were impression that if left the doubt, con proved bеyond reasonable a follow; obscured viction should remained ultimate burden fact government ele prove each to with the beyond reasonable mеnt the offense of in example, doubt. For Vegas, Nev., Gang, Leonard Las “proof possession, unless of structed that Christion. satisfactorily explained, the necеs avoids Albright sity proving Heaton, V. of & of the Government DeVoe Heaton, Nev., illegal importation defend- Vegas, and the for Frazier. Las proof. explanation of to meet burden has failed its “An of ‘to proof may occur, de jury, a failure of Such satisfaction of the as those words respect spite possession, proof paragraph witli of are used the second any elements one of the essential direct or cir means § Verdugo satisfy cumstantial, offense.” v. United which is sufficient 599, 601, despite posses 603 n. 3 government by the defendant sion knowledge (emphasis аdd- thereof” ant’s ed). clear instruction But there was no GRABER, Richard E. and Kathie acquitted un- that defendants were be Appellants, including less, upon all the evidence wаs satis- MAYEM, Bernice andR. Robert J. thát the fied a reasonable doubt Appellees. unlаwfully imported and de- heroin was No. 24602. *3 knowledge of fact.2 fendants had United States Cоurt of above, See, in addition to cases cited Ninth Circuit. States, United Turner v. 396 U.S. 1,May (January S.Ct. 20, 1970); Verdugo States, United Glaziou,
States
Reversed and remanded. Judge (dis- Circuit
senting) :
Here we had a chemist who testified morphine.
that heroin can be from made course, Leary Of whаt underlies large is incidence of homegrown marijuana which domestic
makes the use unfair. clears the presumption in
Section 174 the case judge, I would
heroin. If I were not a very
know heroin made little morphine.
the United from I reverse here unless the chemist
had testified that of con- the incidence
version within the United phine of mor- high.
to heroin is This he did not
do.
Accepting foregoing, it seems to majority
me that overcritical of slight
the instructiоns. If there was er- ror, I would it is harmless. following instruction, requested by 2. The presented you If yоu was refused: leaves with a reasonable doubt as you “If drug Defend- determine to whether the narcotic ille- ant, Christion, possession gally imported had into regardless drug,’ then, of the ‘narcotic or a reasonable doubt as possession of whether his was lawful to whether Robert Christion knew that you drug import- illegally must determine the narcotic your then, satisfaction a reasonable ed into the United re- gardless dоubt that Robert had knowl- his Christion the in- edge drug you the narcotic ille- ference I’ve instruсted gally imported you into the United States draw from his must charged.” of America order him of convict him of the crime charged. the crime with which he is