Before DUFFY, KNOCH and MAJOR, Circuit Judges.
Appellant (defendant) was charged in a one-count indictment with receiving and concealing a quantity of imported marijuana, knowing it was imported, in violation of Title 21 U.S.C.A. § 176a. Upon trial by the Court without a jury, defendant was found guilty and judgment was entered accordingly. From this judgment he appeals.
Defendant contends that the Court erred in its refusal to grant his motions for judgment of acquittal made at the close of the government's case and again at the conclusion of the trial.
The government relied solely on proof that defendant had in his possession a quantity of marijuana. It introduced no evidence to show that imported or that defendant knew it was imported.
Defendant was arrested October 31, 1961, in a basement apartment in North Chicago, pursuant to a warrant. He was searched by two officers who found a plastic vial in his pocket containing a green, leafy substance. The contents of the vial, pending trial, were retained in the continuous possession of the government or its agents. Appropriate examination of its contents revealed it to be marijuana.
A government witness on cross-examination testified that marijuana is a plant indigenous to the United States; that it grows almost any place; that it grows in large quantities along the Sanitary District Canal in and around Chicago; that it grows in back yards and under certain conditions can be grown in a flower pot on a window sill. He admitted that he did not know whether the marijuana found in defendant's possession was of foreign or domestic originand, further, that the contents of the vial were "all ground-up leaves."
This concluded the government's case, whereupon defendant moved for a judgment of acquittal for failure of the government to prove that the marijuana was imported. This motion was denied.
Defendant, called as a witness on his own behalf, testified that he did not know that the vial contained marijuana and that he had no knowledge as to whether its contents came from outside the United States. He testified he was confused as to whether the vial was found on his person, but he thought the officer while searching him found it on the sinn.
Thereupon, defendant renewed his motion for judgment of acquittal, assigning as an additional ground failure of the government to prove his knowledge that the marijuana was imported into the United States. This motion was also denied.
While defendant in his testimony equivocated as to whether the marijuana was found on his person, the testimony of the government agents disclosed conclusively that it was. The question for decision, therefore, is whether possession alone under the circumstances shown was sufficient to authorize a conviction or, to state the question another way, whether such possession was sufficient to justify a finding that the marijuana was imported with knowledge on the part of defendant.
Section 176a, which defendant was charged with violating, contains the following provision:
"Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marijuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury."
This provision is precisely the same as that contained in Sec. 174, except 176a relates to marijuana while 174 relates to narcotic drugs generally. Section 176a was ...