Opinion
Cr. No. 17271.
March 10, 1958.
William B. Butler, U.S. Atty., Houston, Tex., Brian S. Odem, Asst. U.S. Atty., Brownsville, Tex., for plaintiff.
M. Gabriel Nahas, Jr., Houston, Tex., for defendants.
Defendants were convicted in this cause in September 1956 on three counts charging violation of 26 U.S.C.A. § 4744(a) and 18 U.S.C.A. § 545. That conviction was reversed upon appeal.
Gondron v. United States, 5 Cir., 242 F.2d 149.
Another trial was had on February 17, 1958, and defendants were convicted upon the third count, charging acquisition of 60 pounds of refined marihuana without payment of the transfer tax. Gondron was sentenced to 5 years and Elchuk to 8½ years.
The court sustained motions for verdict of acquittal on counts one and two, charging unlawful importation and concealment after unlawful importation, 18 U.S.C.A. § 545.
Elchuk had been sentenced on the first trial to 10 years as a second offender and had elected to enter upon service of his sentence while it was on appeal. He had served approximately 18 months at the time of the present trial.
Both defendants gave notice of appeal from the present conviction and move for the allowance of bail. The motion is denied. In my opinion there is no substantial question to be determined upon appeal. The only questions seriously pressed by defendants will be stated as discussed:
First
Defendants filed pleas of jeopardy because, after they had appealed the former conviction and sought reversal, the Government also filed a motion asking that the case be reversed. The Court of Appeals granted both motions and reversed for a new trial. The same claim of jeopardy was made in an application for habeas corpus by Elchuk in advance of this trial. The court treated such application as a plea of jeopardy and overruled it October 9, 1957, Elchuk v. McCarty, D.C., 159 F. Supp. 689. Notice was given of appeal from that order. There is no basis whatever, in my opinion, for the claim of jeopardy for all the reasons set out in the previous opinion.
Second
Defendants objected to introduction in evidence of the 60 pounds of marihuana and the chemist's analysis of samples therefrom on the ground that the chain of possession was broken and, therefore, there was not sufficient evidence to show that the marihuana introduced upon the trial was that which was seized by the officers. The evidence in this connection was as follows:
The seizure was made by customs agents Richards, Kinney and Diosdado. Kinney testified that he sealed the 60 small plastic bags with adhesive tape and placed his initials thereon; that these plastic bags were placed in three large sacks in which they had been found when seized; that these larger sacks were initialed by him; and then taken in charge by Diosdado. Kinney positively identified the 60 bags as being the ones seized.