312 F. Supp. 244 | S.D.N.Y. | 1970
OPINION
Israel Vallejo collaterally attacks, under 28 U.S.C. § 2255, the sentence of ten years imprisonment imposed by this court on March 29, 1966, following a jury verdict finding him guilty of purchasing, selling, dispensing and distributing cocaine not in the original stamped package, in violation of 26 U.S.C. § 4704 (a), and of receiving, concealing and facilitating the transportation and concealment of cocaine, in violation of 21 U.S.C. §§ 173 and 174.
Petitioner and the government agree that the only question for decision is whether the United States Supreme Court’s decision in Turner v. United States,
The presumption in 21 U.S.C. § 174 provides that the knowing but unexplained possession of a narcotic drug is sufficient to authorize conviction.
Statutory presumptions in criminal cases ease the prosecution’s burden of having to establish a fact by the usual inductive system of drawing conclusions from direct and circumstantial evidence.
The Court applied this standard in Leary v. United States
The Court, in Turner v. United States,
The Court then went on and applied this same test to the presumption of guilt from the' unexplained knowing possession of a narcotic drug not in its original stamped package contained in 26 U.S.C. § 4704(a), and, once again, held it valid as applied to heroin and invalid as applied to cocaine.
The Turner decision does not, however, invalidate all possible applications of 26 U.S.C. § 4704(a) to cocaine. The statute proscribes four separate acts — purchasing, selling, dispensing or distributing without a stamp on the package— which the Supreme Court read as alternatives. If a defendant is shown to possess quantities of cocaine not in the original stamped package, which are too large for individual consumption, that alone, without the assistance of the presumption, supports conviction because it justifies a logical inference that the possession was for the purpose of sale or distribution, acts barred by the statute.
Here, a federal narcotics agent testified that, as he approached Vallejo and his co-defendant Wanton, he saw Vallejo drop six tinfoil packages to the sidewalk and Wanton drop one. The agent placed them under arrest, picked up the seven tinfoil packages and emptied six of the packages into one “substitute container” and the seventh into a second “substitute container.” A government chemist testified that the six packages weighed 3.2 grams and contained 30.1% of cocaine. The single package weighed .86 grams.
There was no evidence introduced as to the illegal importation of cocaine or defendant’s knowledge of illegal importation. As to 21 U.S.C. § 174, the jury was instructed that it could infer both illegal importation and knowledge of illegal importation from the fact of defendant’s unexplained possession of cocaine. As to 26 U.S.C. § 4704(a), the jury was instructed that it could find defendant guilty of violating that statute from the mere fact that petitioner knowingly possessed cocaine not in the original stamped package. There was no other evidence introduced except possession of cocaine which would indicate that Vallejo was purchasing, selling, dispensing or distributing cocaine not in the original stamped package. The government’s case thus rested on the presumption, and the jury was instructed that it could convict from evidence of knowing possession of cocaine in a container which did not bear a tax stamp. The quantity of cocaine involved, 3.2 grams, would not be sufficient to justify an inference that Vallejo possessed it for distribution,
Thus, Vallejo’s conviction was totally dependent on the statutory presumptions in 21 U.S.C. § 174 and 26 U.S.C. § 4704 (a) since held unconstitutional as applied to cocaine by the Supreme Court.
The Supreme Court did not, however, indicate whether its decisions on marihuana and cocaine were to be applied retroactively.
Determining whether a new constitutional standard should be granted retroactive or prospective application turns on three factors: (1) the purpose to be served by the new standard;
The Supreme Court has made it quite clear that the first factor is the most important,
The Fourth Amendment exclusionary rules which are, in effect, procedural
The Court has stated that the new standard for determining the constitutionality of statutory presumptions is intended to “prevent ‘conviction upon insufficient proof’ * * *."
In this case, as in most “buy and sell” narcotics cases, there was no proof of illegal importation, or knowledge of illegal importation of a narcotic drug, or of purchase, sale or distribution of the narcotic drug not in its original stamped package, except for the statutory presumptions, and these presumptions have been invalidated as they apply to cocaine.
The Turner decision and the Leary decision before it were intended to correct not a mere flaw in the fact-finding process, but to destroy the very foundation for conviction in cases relying solely on the invalid statutory presumptions. Thus, now that the underpinning has been swept away, such convictions necessarily rest on insufficient evidence.
The purpose of the new standard, which is intended to correct and perfect the entire fact-finding process in trials involving cocaine and marihuana, requires retroactive application. Consideration of the remaining two criteria, although certainly of great practical importance, is precluded by the Supreme Court’s decisions which hold that rules directly intended to correct flaws in the
Accordingly, Israel Vallejo’s motion to vacate the sentence and judgment imposed on March 29, 1966 is granted. J. J. Parker, Warden of the Federal Prison Camp at Allenwood, Pennsylvania, is ordered to release petitioner from custody within thirty (30) days from the date this order is filed, unless within that period petitioner is retried or an appeal is taken.
So ordered.
. 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).
. See McCormick, Evidence § 313 (1954).
. Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 1548, 23 L.Ed.2d 57 (1969).
. Id. at 52-53, 89 S.Ct. 1532.
. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).
. Id. at 415-416, 418-419, 90 S.Ct. 642.
. Id. at 419-424, 90 S.Ct. 642.
. Id. at 423-424, 90 S.Ct. 642.
. Id. at 419-423, 90 S.Ct. 642.
. Id. at 423, 90 S.Ct. 642 (holds that 14.68 grams of cocaine was insufficient to support an inference of distribution).
. Id. at 422-424, 90 S.Ct. 642.
. See Desist v. United States, 394 U.S. 244, 256, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) ; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1968).
. See De Stefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966).
. See Stovall v. Denno, 388 U.S. at 300, 87 S.Ct. 1967.
. Desist v. United States, 394 U.S. at 249, 89 S.Ct. 1030; Roberts v. Russell, 392 U.S. at 295, 88 S.Ct. 1921; Witherspoon v. Illinois, 391 U.S. 501, 523 n. 22, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
. Id.
. Desist v. United States, 394 U.S. at 249-250, 89 S.Ct. 1030; Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968) ; Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).
. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).
. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967).
. Desist v. United States, 394 U.S. at 251 n. 19, 89 S.Ct. 1030; De Stefano v. Woods, supra; Johnson v. New Jersey, supra.
. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) ; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) ; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).
. See McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Roberts v. Russell, supra; Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964); Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1964). See also Witherspoon v. Illinois, supra.
. See Turner v. United States, 396 U.S. at 404, 90 S.Ct. 642; Leary v. United States, 395 U.S. at 37, 89 S.Ct. 1532.
. United States v. Sorenson, 308 F.Supp 1268 (E.D.N.Y.1970).
. See notes 15 and 16, supra.