United States v. Williams

¶5MacKINNON, Circuit Judge:

¶6Appellant was indicted on two counts charging violations of the federal narcotics laws, 26 U.S.C. § 4704(a) 1 and 21 U.S.C. § 174,2 respectively. A jury convicted appellant on both counts and on August 8, 1969 the Government filed an Information of Previous Convictions informing the court that the conviction in the present case represented a subsequent offense under 21 U.S.C. § 174, 26 U.S.C. § 4704(a) and 26 U.S.C. § 7237 by virtue of two prior convictions for violation of the federal narcotic laws. The first prior conviction occurred in the District of Columbia on June 20, 1952 when the court adjudged a sentence to imprisonment for 16 months to 4 years and suspended the execution of the sentence and placed appellant on probation. The probation was revoked on May 21, 1954. The second prior conviction on May 21, 1954 also occurred in the District of Columbia when the court adjudged a sentence of imprisonment for 2 to 6 years. These two prior convictions involved violations of statutes now described as 26 U.S.C. §§ 4705(a), 4704(a) and 21 U.S.C. § 174. Appellant thus had prior convictions of the identical statutes that he was convicted of violating in the instant case.

¶7On this appeal appellant first contends that the search and seizure, which resulted in the finding of 99 capsules of heroin upon appellant’s person after he was detained by a District of Columbia policeman on a potential charge of simple trespass or unlawful entry in the fifth floor of a vacant building being used as a narcotics pad, violated his rights under the Fourth Amendment, and that the District Court erred by failing to suppress the evidence *740of the capsules so obtained. However, we consider the search of appellant’s person under such circumstances to have been a valid search pursuant to a valid arrest. The trial court ruled that the search was justified on two grounds:

First: The unlawful entry which the defendant committed in the presence of the officers justified a war-rantless arrest under Title 4, Section 140 [3] of the District of Columbia

¶8Code.

Second: That under all of the factual circumstances which were previously enumerated, Officer Shaffer and Officer Campbell had reasonable grounds, in the Court’s opinion, to believe that the narcotics laws were being violated. And looking at it from that standpoint, they had a basis for making a valid arrest of the defendant on that ground alone.

¶9In Thomas v. United States, 134 U.S. App.D.C. 48, 412 F.2d 1095 (1969), where we upheld the validity of a narcotics search, the circumstances were substantially the same but the facts here are stronger. We consider the search to have been reasonable and valid under both grounds stated in the ruling of the trial court.

¶10Appellant also attacks the statutory presumptions of 2°6 U.S.C. § 4704(a) and 21 U.S.C. § 174 arising from his possession of the heroin but these presumptions were recently upheld with respect to heroin in Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). The presumption of 21 U.S.C. § 174, that possession permits the inference that the defendant had knowledge the heroin was illegally imported, is especially attacked. The basis of the Supreme Court's holding in Turner as to this presumption was that “the overwhelming evidence is that the heroin consumed in the United States is illegally imported.” 396 U.S. at 415, 90 S.Ct. at 652. The Court recognized, however, that

It is, of course, possible for the situation to change either through the development of a simple method of synthesizing heroin or through the creation of substantial clandestine operations utilizing opium or morphine which has been illegally imported or which, though legally here, has been stolen.

¶11396 U.S. at 416 n. 28, 90 S.Ct. at 652. Counsel for appellant in this case has sought to utilize the loophole suggested *741by footnote 28. A Government chemist was placed on the stand to establish that the capsules in question did in fact contain heroin, and on cross-examination counsel elicited testimony to the effect that heroin could be manufactured in this country using opium or morphine illicitly obtained. However, the record falls far short of establishing hard evidence that “substantial clandestine operations” do in fact exist, and in the absence of such evidence the presumption retains validity.

¶12Appellant makes the further contention with respect to count one (the 26 U.S.C. § 4704(a) charge) that his conviction thereof violated his rights under the Fifth Amendment because to have obtained the tax stamps would have required him to incriminate himself. We disagree. Good v. United States, 410 F. 2d 1217, 1220 (5th Cir. 1969); United States v. Gladden, 296 F.Supp. 983 (E.D.La.1969); Fields v. United States, 287 F.Supp. 606 (E.D.Va.1968); see Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969). In support of his contention appellant contends that had he complied with the law he would have been required to purchase federal narcotic tax stamps and that this would have compelled him to incriminate himself. However, the nature of this charge of the indictment4 and the scheme of the statute upon which it is based5 do not support such assertion. For appellant to have acquired the necessary tax stamps under the applicable regulations he was required (1) to register and pay the occupational tax6 and (2) to be an “importer, manufacturer, producer or compounder” of the narcotic drugs for which the tax stamp is required.7 Since there is no evidence here that appellant was engaged in importing, manufacturing, producing or compounding heroin, his failure to obtain the tax stamp did not result from any risk of self-incrimination but rather from his inability to meet the statutory requirements for obtaining the stamp. Appellant was just ineligible under the statute to purchase the tax stamp so he was not required in any way to incriminate himself.8

¶13We likewise reject appellant’s contention that 26 U.S.C. § 7237(d)9 by *742its denial of probation and parole constitutes an infliction of cruel and unusual punishment in violation of the Eighth Amendment,10 and that a portion of the argument to the jury by the United States Attorney was improper. Whatever error might have been occasioned by the argument of counsel, and we do not hold that the argument constituted error, it was corrected by the judge’s timely cautionary instruction.

¶14Finally, appellant points out that the District Court in adjudging sentence added the recommendation that appellant “be treated for narcotics addiction." This sentence was imposed on September 5, 1969 before our en bane decision in Watson v. United States, 141 U.S. App.D.C. -, 439 F.2d 442 (1970). In acordanee with our decision in Watson it is our opinion that the appellant, notwithstanding his two prior narcotics convictions, had a right, the same as Watson, to be considered for treatment under the Narcotic Addict Rehabilitation Act of 1966 (18 U.S.C. § 4251et seq.). So we affirm Williams’ conviction but vacate his sentence and remand the case for re-sentencing, in the course of which the District Judge shall give consideration to the disposition of appellant under Title II of the Narcotic Addict Rehabilitation Act.11

¶15Judge Robb concurs in the affirmance of the conviction and as he now considers himself bound by our decision in Watson v. United States, supra, he also concurs in the result.

¶16The case is remanded to the District Court for disposition in conformance with the foregoing opinion.

¶17So ordered.