Opinion
No. 399, Docket 26802.
Argued June 6, 1961.
Decided June 21, 1961.
David P. Bicks, Asst. U.S. Atty., Southern District of New York, New York City (Robert M. Morgenthau, U.S. Atty., Southern District of New York, and David R. Hyde, Asst. U.S. Atty., New York City, on the brief), for appellee.
Theodore Krieger, New York City (Louis L. Moses and Albert J. Krieger, New York City, on the brief), for defendant-appellant.
Walker Barrington appeals his conviction for concealment and transportation of nearly a kilo of pure heroin, in violation of 21 U.S.C. § 174. The defendant seeks reversal claiming that the government did not prove that he knew that the packages involved contained narcotics or that he possessed the narcotics within the meaning of the second paragraph of § 174 which creates a presumption that possessors have knowledge that the narcotics were illegally imported. We find that there was ample evidence from which Judge Dawson, sitting without a jury, could find that these elements of the crime were proved beyond a reasonable doubt and we affirm the conviction.
The testimony of the arresting narcotic agents, which Judge Dawson accepted, was as follows: On the evening of October 24, 1960, a man known as "Al," whom agent Leonard S. Schrier had been following left two packages wrapped in brown paper in locker number 116 at the East Side Airlines Terminal. Joined by agent Edward Guy, Schrier watched the locker until 1:15 in the morning of October 25, when Barrington approached the locker, removed the packages, covered them with a newspaper, and walked away. After he had taken four steps, moving about five feet, the agents arrested him, first announcing that they were federal narcotic agents.
Relying upon the in banc reversal of Nicholas Narducci's conviction in United States v. Santore, 2 Cir., 1960, 290 F.2d 51, Barrington contends that "possession" could not be found upon these facts. We disagree. Barrington controlled the packages; unlike Narducci his grasp was not momentary.
There was, moreover, ample evidence that Barrington knew that the packages contained narcotics. When asked by agent Schrier what was in the packages, he replied: "What's the sense. You know what's in it." He guessed that the packages weighed a "half kilo." (The kilo is a common measurement in the narcotic trade.) Barrington told the agents that he had picked up similar packages several times in the past, always receiving $100.00, and that he had said to agent Schrier "You have me wrong. I am not a big shot. I am just an addict. I am only getting $100 for picking up the stuff." Barrington took the stand and admitted two previous narcotics convictions and that he was an addict. Judge Dawson had ample reasons for concluding that Barrington knew that the two packages contained narcotics.
Affirmed.