*1
up
ready
to set
rides
er was
asleep
day.
did not fall
He
in the
later
America,
UNITED STATES
performance of his duties.
while
Plaintiff-Appellee,
leaving
coming
or
his
Neither
injury. The
of his
at the time
work
plаin
MATHER,
Defendant-
Gordon
activity was in no
is that his
Appellant.
employment.
way
his
connected with
No. 72-1280.
a harsh rule
Indeed, it would be
Appeals,
United States Court of
the ordi-
him to assume
Fifth Circuit.
nary
employment while
of his
risks
Aug.
1972.
separated
completely
asleep and
employment, and we
duties of his
En Banc
support Kentucky
law
find no
can
Sept.
Denied
rule.
such a
Certiorari Denied Dec.
See
in while were compensation their work. of the engaged in the exca-
The workers were required tunnel, blast- of a which vation employees’
ing operations tents and the proximity to the ex- in close
were located laborer, plaintiff, a cavation work. injured was set off when a blast sleeping. he was a tent
near
The Court said: engaged at his or
“But while meals plaintiff]
wrapped in slumber [the performing no sеrvices master, being performance obtaining employment, of no but
enjoying compensation from the mas during
ter, he such time the was not employes
fellow servant of work, about which he was
who were engaged assisting. way He
in no of a not in the condition servant being conveyed in a car who is work, separated much but was as sleeping
it as if he had been away.” home a Orman v.
own mile
Salvo, supra,
further *2 tion or movement interstate foreign commerce. We affirm.
I. seizure cocaine occurred sоught appellant after had to board an flight Atlanta, Eastern Airlines Geor- gia en route from America. Act- South regard anti-hijacking to an profile, agent appellant the ticket asked produce Appellant re- identification. plied agent that he had then none. appellant seated, asked took his ticket, and supervisor. summoned a Pearson, Daniel Robert Jose fs C. S. supervisor arrived, When Rogow, Miami, berg, Fla., for de Bruce agent by formed ticket fendant-appellant; Josefs Pearson & selectee, i.e., hijacking lant was a a sus- berg, Miami, A., Rogow, P. Bruce S. pect. supervisor approached Fla., of counsel. appellant and asked to see identifica- Rust, Atty., Michael W. U. S. Appellant replied that his identifi- Miami, Fla., plaintiff- Sullivаn, P. appellee. luggage. was in cation It was at supervisor ap- this time that the asked BELL, pellant voluntarily “if Before RO he would GOLDBERG and submit Judges. by NEY, to a search a United States Marshal.” Appellant replied that he would. Judge: BELL, Circuit Shortly deputy thereafter a appeal judgment is from a boarding Marshal arrived by conviction entered the district court gate appellant and was infоrmed that jury, finding guilty without a Mather on was a selectee had voluntarily and charged an indictment which him with agreed During to be searched. possessing 197.75 of cocaine with search that followed а marshal found intent to distribute same in violation envelope pock- in an in the inside 841(a)(1). of 21 U.S.C.A. § appellant’s jacket. et of It was identi- trial, Prior to district court con- by fied time as cocaine. appellant’s ducted motion the cocaine which taken nothing in the record to by from him federal Miami marshals at suggest appellant’s consent was Airport. International denied court promises, coerced. There record Thereupon appellant the motion. waived threats, discourtesies, or inducements. jury trial the evidence He was told that search suppress. received on the motion to by conducted federal officers. It fol only problem in the ease comes from the there was no error in the dis lows that truncated fashiоn in which the matter suppress. trict court’s refusal Cf. was thereafter handled. Wainwright, 5 Cockerham v.
On 438. The of consent contends F.2d failing that the the fact find district court erred in is for the district court as grant Fikе, Cir., the motion to and thus in er. United States v. admitting Henderson, evidence; 191; the cocaine into Perkins F.2d 441; F.2d Landsdown prove Cir., distribute; that 21 United 841(a)(1) supports U.S.C.A. 405. The record is unconstitution- allega- al in it does nоt here. statutory inference which validi the prima made Appellant’s attack distribution; 841(a)(1) facie case ty is with of 21 U.S.C.A. recently statutory in- has insufficient basis out merit. The purchase adversely fеrence of other than in or to him. United been decided stamped package. from the Only Lopez Llerena, 5 States v. ground here. first F.2d 949. *3 The Turner court concluded in that II. the small amount of сocaine involved prob- question presents The the statutory last sustain the to in- sufficient on possession Was lem. inference with intent of to district court tent to distribute? distribute rather intent to distribute the cocaine personal 422-423, inferred at 396 90 use. U.S. involved, grams. from the 197.75 amount S.Ct. 642. The amount involved was a package grams weighing contain- 14.68 hearing Following on the motion the ing sugar, a mixture of cocaine and cocaine, request of the to the 5% only of which was cocaine. Thus of non-jury .73 counsel for and his gram one in of cocainewas issue. stipulated granted. It was trial was on the adduced the that evidence Turner, court also concluded ev- to admitted as the 420, 654, 396 and fn. U.S. suggested The court idence on the trial.' 30, that of heroin the issue amount report on cocaine the of chemist the statutory inference warranted with the counsel be introduced but respect to distribution of heroin un- the amount, grams, the 197.75 4704(a). der The facts were that the § report nec- would not be stated that package weighing heroin was ain 48.25 essary. grams containing of a mixture was was heroin. The mixture validity the in- of 15.2% package in 275 contained within ference on оf turns whether amount glassine bags. support such as will an ference to of intent distribute as distin- Here of per- guished mere from route of cocaine en from 197.75 sonal use. judicial- to Atlanta. We Sоuth America ly There lant did not use cocaine. did or value, know that it had a worth is no to what evidence as neighborhood $2,500 of delivered. general frequency normal or the dose Smart, Cir., 1971, Unitеd States stipula- doses. can assume from We 1,000 931, 448 F.2d where tion not mixed with that the cocaine was $13,000 $12,000 delivered from worth other was thus substances and in New York Bolivia. from grams. true amount of 197.75 is far more thаn involved amount guidance on the We can obtain some the mini- found to be the Second Circuit v. United Turner submitting preclude amount mum L. jury in statutory to the inference § ille Ed.2d That case involved (illegal importation). cases gal importation heroin and cocaine in Gonzalez, 442 F.2d violation of This 21 U.S.C.A. 174. § following (En Banc). su- There the importation not an heroin pervisory rule was announced: analogous part of case. The Turner is pre- having charg “By to do with the our conclusion count illegal under of cocaine in or distribution not possession stamped package in vi 174 is valid where involved, 4704(a). large quantities olation of There 26 U.S.C.A. § holding limit our do conviction to that we intend as exceeding grounds: kilogram. quantities count one insuffi two reasoning (mere possession), оur Obviously cient behind foundation exactly conclusion is present to ditional on the issue large quantities although cocaine, Contreras, In ed. kilogram,
less than a
Turner
as the
the amount of
reasoning
quantities
grams,
small
co- cocaine involved was 690
17.7%
caine, although
gram.
pure
grams.
more than a
In
or a total of 121.13
already
yet
cases
tried and not
decided was
up
taken as a sufficient amount to
must,
statutory
we
in line with the hold the
inference of distribu
opinion,
4704(a) although
rationale of this
each tion
under
there was
doing
case on
support
an individual basis.
In
somе other evidence to
distribu
so we must consider both the
possibility
of cocaine involved and the
applied
respect
rule to be
of harmless
reference to
error. With
applied
inferences is the rule which was
tried,
yet
cases
be
district
in Turner: The inference is invalid “un-
courts
to re-
would be well advised
less it can at least
said
with substan-
*4
charging
statutory pre-
frain from
presumеd
tial assurance that
except
as such
when
likely
[here
is more
distribute]
quantity
decidedly
on the
side
proved
than not to flow from the
fact on
charge
and to refrain from
depend.”
which it is made to
396 U.S. at
presumption
quantity
when the
404-405, 90
64.6.1
the order of
or less. In cas-
extremes,
judge
es between
these
proved
We are satisfied that the
relating
should frame instructions
fact here of 197.75
fаcts
of cocaine and
of a traveler en route
legitimate sources,
as to thefts from
Atlanta,
from South America to
without
permitting
thereby
jury to
more,
pri
was sufficient make out
whethеr the
of cocaine is
ma facie case of intent to distribute the
justify
sufficient to
of ille-
cocaine. There the matter ends.
gal importation beyond a reasonable
doubt.”
It that Gоnza- lez was concerned with the fact ON PETITION FOR REHEARING illegal importation does al- AND PETITION FOR REHEAR- ways follow because thefts EN ING BANC country. this also Armenteros, PER CURIAM: ques- on the same Nevertheless, it some The Petition for is denied subject of on the amounts Judge panel and no member which are to be considered as regular active on the Court service personal possessor small or rather having rеquested polled Court pur- for commercial rehearing banc, (Rule en 35 Federal poses. Appellate Procedure; Rules of Local 12) Finally, connection, Fifth Rule Petition in this we find Circuit another Second be of ad- En Banc is denied. Citing Leary States, 1969, 23 L.Ed.2d