White v. United States

¶5PER CURIAM.

¶6Appellant was indicted in Count I for the sale of heroin on June 22, 1959; in Count II for the possession or concealment of heroin on June 22, 1959; and in Count III for possession and concealment of marijuana on June 21, 1960. Upon pleas of not guilty to each count, the trial judge severed Count III. A jury found appellant guilty of Counts I and II, and appellant was sentenced to two concurrent five year terms. Count III was dismissed.

¶7Appellant urges as grounds for appeal:

¶8I. Insufficiency of the evidence of possession as to both counts.

¶9II. The federal rule that an accused can be convicted by the uncorroborated testimony of an accomplice should be changed.

¶10III. Error in instructions with respect to:

a) the burden of proof on defendant

b) presumptions created by unexplained possession of drugs

¶11IY. The presumption in 21 U.S.C.

§ 174 is unconstitutional:

a) because it violates the due process clause

b) because no rational basis therefor

¶12V. Prejudicial error of prosecutor in argument to the jury.

¶13We adopt the government’s statement as to the facts of the case,1 as we must. Glasser v. United States, 1942, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680.

¶14*115I

¶15 Possession need not be actual possession, if there is circumstantial evidence sufficient to establish dominion and control. Rodella v. United States, 9 Cir., 1960, 286 F.2d 306; Cellino v. United States, 9 Cir., 1960, 276 F.2d 941. There was sufficient, substantial evidence to go to the jury, and to convict, if the jury believed the testimony of Keith Wallace.

¶16II

¶17Counsel asks us to change the federal rule on the lack of necessity of corroboration of the testimony of an accomplice. This we have refused, and do refuse, to do. Audett v. United States, 9 Cir., 1959, 265 F.2d 837, notes 45 and 46, and cases cited; Williams v. United States, 9 Cir., 1962, 308 F.2d 664; Toles v. United States, 9 Cir., 1962, 308 F.2d 590; Bible v. United States, 9 Cir., 1963, 314 F.2d 106.

¶18III

¶19 The first instruction objected to was favorable to appellant. But whether it was or not, no objection was made to it when it was given, and any objection was waived. Walker v. United States, 9 Cir., 1962, 298 F.2d 217; O’Neal v. United States, 9 Cir., 1962, 310 F.2d 175. No point is made that the instruction is an incorrect statement of law, merely that it is not applicable to the facts of this case. Under such circumstance, it is peculiarly defense counsel’s obligation to make timely objection. Defendant’s interpretation of the facts would eliminate and fail to consider much testimony favorable to the prosecution.

¶20The second instruction complained about would be error only if the presumption contained in 21 U.S.C. § 174 is unconstitutional.

¶21IV

¶22Section 174 of Title 21 United States Code, with its presumption, is not unconstitutional. Caudillo v. United States, 9 Cir., 1958, 253 F.2d 513, certiorari denied. Romero v. United States, 357 U.S. 931, 79 S.Ct. 1375, 2 L.Ed.2d 1373.

¶23V

¶24Under this point, appellant cites good law, Berger v. United States, 1935, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, wholly inapplicable to the factual situation disclosed by the record.2 There was *116clearly no prejudicial misconduct, just the good, ordinary and usual arguments presented to juries by prosecutors.

¶25But even had there been a taint of unfairness or prejudice, no voice was raised in protest — no objection ever raised — no chance given the trial court to cure any alleged error. This is a complete waiver.

¶26Finding no error, and the record disclosing appellant had a fair trial, the judgments of conviction on Counts I and II are

¶27Affirmed.