1970
US Court of Appeals

Tony Chisum, Jr. appeals from his conviction on all ten counts of an indictment charging him with violations of the narcotics and tax laws. 

His principal contentions are that he was denied a speedy trial guaranteed by the Sixth Amendment to the Constitution and a fair trial afforded by the due process clause of the Fifth.

The charges were rested upon a series of four separate transactions in each of which Chisum supplied heroin to an undercover narcotics agent. The first transaction took place on May 11, and the last on May 26, 1966. Chisum was indicted on January 11, 1967 and tried the following September.

We reject Chisum's Sixth Amendment contention.

1970
US Supreme Court

Petitioner was . . . convicted of . . . narcotics violations:  . . . . At the trial the Government presented evidence of the seizure of the packages but offered no evidence on the origin of the drugs, and petitioner did not testify. Section 174 provides that when a "defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury." Section 4704 (a) states that: "It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection . . . ." . . .the trial judge charged the . . . that it could infer from petitioner's unexplained possession of the heroin and cocaine that petitioner knew the drugs had been illegally imported. . . . petitioner argued that the judge's instructions on the inferences that the jury might draw from unexplained possession of the drugs violated his privilege against self-incrimination by penalizing him for not testifying. The Court of Appeals rejected this claim and affirmed, finding that the inferences were permissible under prior decisions. Held :

The trial court's instructions . . . did not violate his right to be convicted only on a finding of guilt beyond a reasonable doubt and did not place impermissible pressure on him to testify in his own defense.

1970
US Court of Appeals

On this appeal, appellant contends that both § 4704(a) and § 4705(a) of Title 26, United States Code, are violative of the Fifth Amendment privilege against self-incrimination, and that § 4704(a) is otherwise constitutionally infirm as being beyond the pale of congressional power to regulate and as irrationally presuming illegal purchase of narcotics upon proof of possession only, thereby violating due process of law. Between the time of submission of this case and our decision today, the Supreme Court spoke to the very issues presented here. Suffice it to say that both statutes were held valid and not subject to any constitutional infirmities.

1970
US Court of Appeals
Fifth Circuit

. .   Evelio Soriano sold marihuana to . .  an undercover narcotics agent . . . The agent did not have the official order form required for such transactions by § 6 of the Marihuana Tax Act, 26 U.S.C. § 4742(a).

On this appeal, Soriano makes two contentions: first, he argues that the sale . . . falls within the exceptions to the requirements of § 4742(a), as provided in § 4742(b) (4); second, he argues that § 4742(a) violates his Fifth Amendment privilege against self-incrimination. We affirm.

1970
US Court of Appeals

Defendant was indicted, tried, and convicted by a jury on both counts of a two-count indictment which charged that he . .  did receive, conceal, and facilitate the transportation and concealment of narcotic drugs after those drugs had been illegally imported into the United States, knowing that the drugs had been illegally imported, . . . and (2) unlawfully, wilfully, and knowingly did purchase narcotic drugs other than in or from the original stamped package containing those drugs . . .

The defendant first contends that he was denied due process of law by the application to him of the presumption contained in the second paragraph of this statute, providing that inferences of both illegal importation and the possessor's knowledge of same could be drawn from mere possession. . . .. The answer to this claim is that the Supreme Court has recently considered and rejected it in Turner v. United States . . .

Clark argues that, having asserted his Fifth Amendment privilege against self-incrimination, he could not be punished for acquiring narcotic drugs without having paid the 1% per ounce regulatory excise tax . . .(appeal rejected)

1970
US Court of Appeals

Raul V. Castano was convicted, on his guilty plea, of violating 26 U.S.C. § 4755(a) (1) which prohibits certain activity by unregistered dealers in marihuana. He moved the district court to vacate the resulting sentence pursuant to 28 U.S.C. § 2255. In support of his motion, Castano contended that § 4755(a) (1) as well as the underlying taxing and registration provisions of 26 U.S.C. §§ 4751-4753 were unconstitutional in light of the Supreme Court's decisions . . .

Since the decision by the district court, the Supreme Court has reversed Leary. While the Court did not directly consider the "occupational tax" provisions of §§ 4751-4753 or § 4755(a) (1), its determination that a timely assertion of the privilege against self-incrimination is a complete defense to prosecution under 26 U.S.C. § 4744(a) (2) may support Castano's argument. . . .

The order of the district court is reversed and the case remanded for consideration in light of these recent decisions.

1970
US Supreme Court

Respondent was convicted of furnishing marihuana to a minor . . , chiefly on the basis of evidence consisting of prior inconsistent statements made by the minor . .   The California Supreme Court affirmed, and held § 1235 unconstitutional insofar as it permitted the substantive use of a witness' prior inconsistent statements even though such statements were subject to cross-examination at a prior hearing. Held :

1. The Confrontation Clause of the Sixth Amendment, as made applicable to the States by the Fourteenth Amendment, is not violated by admitting a declarant's out-of-court statements as long as he is testifying as a witness at trial and is subject to full cross-examination. . . .

2. Even in the absence of an opportunity for full cross-examination at trial, the admission into evidence of the preliminary hearing testimony would not violate the Constitution. . . .

1970
US Court of Appeals

Appellant. . . was . . . found guilty of a violation . .  (conspiracy to illegally import marihuana). He was sentenced to serve a term of 15 years imprisonment and appeals. We affirm.

. . . Appellant's threshold contention is that the imposition of an internal revenue tax lien against his property prior to the trial, under the provisions of the Marihuana Tax Act, 26 U.S.C. §§ 4751-4755, invaded his Fifth Amendment rights. He argues that the effect of the tax lien was to deny him use of property with which he could have raised money to prepare his defense.

1971
US Court of Appeals
8th Circuit

Crawford contends on appeal that the trial court erred in (1) permitting the prosecution to cross-examine the defendant about his association with persons who were addicts or convicted drug sellers, (2) admitting evidence of and allowing the prosecutor to comment upon Crawford's alleged sales of narcotics to the government informant on occasions other than those charged in the indictment, and (3) refusing to permit the defense counsel to ask the government informant whether or not she had some hope of leniency by virtue of the testimony she was giving against the defendant.. . . . .

[79] -The danger of prejudice to a defendant because of the admission of evidence of other crimes is always great. The nature of such prejudice is demonstrated by the case before us. After Mrs. Parker's testimony respecting Crawford's alleged prior narcotics sales had been introduced, the defense had two alternatives: to either let the testimony stand, or to cross-examine the witness and run the risk of eliciting more damaging testimony. The defendant elected to rebut her testimony by both a specific and a general denial in his own direct examination. These denials were then used by the government as the basis for the line of cross-examination which we have held to be prejudicial error.

[80] -If Crawford's defense had raised the questions of mistake, identity, motive, or lack of scheme or plan, the government could have met this defense on its rebuttal. The Second Circuit has suggested that the preferable method of dealing with evidence of prior crimes is to defer its introduction until the defense case makes the proof of prior crimes necessary. United States v. Adams, 385 F.2d 548 (2nd Cir. 1967). We think the suggestion is one deserving serious consideration.

[81] -Reversed and remanded for a new trial.

1971
US Court of Appeals

This is an appeal from an April 19, 1968, order of the United States District Court for the District of New Jersey decreeing the forfeiture of a 1964 Ford Thunderbird automobile, . . .

The agents did not have a warrant for the arrest of Bivens for a search of the automobile subsequently ordered forfeited. The Government argues, and the district court agreed, that the agents' testimony regarding the events of the early morning of September 2, combined with Agent Feldman's testimony that Bivens had on a prior occasion sold heroin from the automobile to one Agent Scott, establishes that the agents had probable cause to arrest Bivens without a warrant. It follows from this, the Government argues, that the arrest and search incident to the arrest were lawful. . . .

We agree with appellant that the district judge applied the wrong standard to the facts. The standard is not what a police officer trained in a particular field would conclude, but rather it is what a reasonable, prudent man would conclude. *footnote 6 We do not, however, believe that this error compels either a reversal or a remand to the district court.

1971
US Court of Appeals

1971
US Court of Appeals
Fifth Circuit

1971
US Court of Appeals
Fifth Circuit

By § 2255 motion, Smedberg challenges the District Court's judgement of conviction entered after he pled guilty to violating 26 U.S.C.A. § 4744(a)(2). Smedberg asserts that Leary v. United States, 1968, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57, should be retrospectively applied and that he has not effectively waived his fifth amendment privilege. The District Court denied his petition. The application for leave to appeal in forma pauperis is granted, and we affirm.

1971
US Supreme Court

1971
US Supreme Court

1971
US Supreme Court

1972
US Court of Appeals

1972
US Court of Appeals

1972
US Supreme Court

1972
US Supreme Court

1973
US Supreme Court

1973
US Supreme Court

Petitioner, . . ., was arrested and charged by state authorities with the sale of marihuana in violation of applicable state law. Prior to his trial on this charge, the petitioner . . . voluntarily left Arizona for New York. When the trial date was set, the petitioner's court-appointed attorney so advised the petitioner and requested him to return to Arizona. Assertedly because he lacked travel funds, the petitioner did not appear in Arizona on the date set for trial. Under these circumstances, the trial proceeded without the petitioner's presence, as authorized by state procedure. The jury returned a guilty verdict. After the verdict was rendered, the petitioner obtained the necessary travel funds and returned to Arizona in time for his sentencing. He was sentenced to not less than five nor more than five and one-half years in prison. The Arizona Supreme Court affirmed his conviction. 107 Ariz. 353, 488 P. 2d 973 (1971).

The petition for certiorari in this case presented questions as to constitutional limits on the States' authority to try in absentia a person who has voluntarily left the State and is unable, for financial reasons, to return to that State. Upon reviewing the record, however, it appears that these broad questions were not raised by the petitioner below nor passed upon by the Arizona Supreme Court. We cannot decide issues raised for the first time here. . . .

1973
US Supreme Court

1973
US Court of Appeals
Tenth Circuit

This appeal involves the validity of a claim by the government for excise taxes imposed on a transfer of marihuana alleged to be due under the Marihuana Tax Act provisions in 26 U.S.C.A. § 4741 (1954). *footnote 1 Appellant Simmons raises only one issue here -- the constitutionality of the excise tax provisions. He argues that in view of the self-incrimination principles pronounced in Leary v. United States, 395 U.S. 6, *footnote 2, 23 L. Ed. 2d 57, 89 S. Ct. 1532 the marihuana excise tax provisions are no longer valid and are not now sustained by the United States v. Sanchez, 340 U.S. 42, 95 L. Ed. 47, 71 S. Ct. 108. We do not agree and affirm the trial court's judgment which rejected these contentions.

1973
US Supreme Court

1973
US Court of Appeals

1973
US Supreme Court

Petitioner effectively waived his right to be present at his criminal trial by voluntarily absenting himself therefrom through failure to return to the courtroom after the morning session of the first day of trial, and the Court of Appeals properly applied Fed. Rule Crim. Proc. 43 and affirmed the conviction, it being unnecessary to show that petitioner knew or had been expressly warned by the trial court not only that he had a right to be present but also that the trial would continue in his absence and thereby effectively foreclose his right to testify and to confront personally the witnesses against him.

1973
US Supreme Court

Supreme Court of Alaska

Irwin RAVIN, Petitioner,
v.
STATE of Alaska, Respondent.
No. 2135.

Supreme Court of Alaska.
May 27, 1975.
As Amended May 28, 1975.

The operative facts herein are substantially identical to those in United States v. Morrison, ante, p. 1. Respondent's car was stopped by Border Patrol agents; a search disclosed marihuana. Respondent lost a motion to suppress and was found guilty after a bench trial. Following this trial, but before sentencing, the District Court, relying upon our decision in Almeida-Sanchez v. United States, 413 U.S. 266 (1973), granted respondent's motion to suppress.The Court of Appeals for the Tenth Circuit, as it did in Morrison, found the Government's appeal barred by double jeopardy.

In United States v. Wilson, 420 U.S. 332 (1975), we held that double jeopardy would not bar a Government appeal if success on that appeal would result in the reinstatement of a verdict of guilty. The fact that the order of suppression here occurred after a general finding of guilt rendered by the court in a bench trial, rather than after a return of a verdict of guilty by a jury, is immaterial. Morrison, ante, p. 1. Double jeopardy, therefore, does not bar an appeal by the Government.