Opinion
No. 21636.
January 18, 1968.
John E. Wahl (argued), San Francisco, Cal., for appellant.
Craig B. Jorgensen (argued), Asst. U.S. Atty., Wm. Matthew Byrne, Jr., U.S. Atty., Robert L. Brosio, Asst. U.S. Atty., Chief, Criminal Division, Los Angeles, Cal., for appellee.
Appellant was charged in Counts IV, V and VI of a six count indictment with (a) concealing and transporting, (b) selling and (c) illegally transferring marijuana. A codefendant was charged alone in Counts I, II and III, and jointly in Counts IV, V and VI. The codefendant Rivera was found guilty on all counts. The appellant was found guilty on three counts, and received an eight year sentence on each count, to run concurrently.
Five errors are urged. Four of them relating to severance, claim of immunity, failure to instruct on entrapment as to Counts IV, V and VI, and unreasonable search, were never raised at the trial court level. No motion of acquittal was urged on behalf of this defendant during the trial. Not only was the record not made, there is no substance or merit in any of these points.
Appellant's "main point" is the unconstitutionality of the presumption portion of 21 U.S.C.A. § 176a.
We have repeatedly held it constitutional, and have declined to overrule such previous decisions. Caudillo v. United States, 253 F.2d 513 (9th Cir.), cert. denied sub nom. Romero v. United States, 357 U.S. 931, 78 S.Ct. 1375, 2 L.Ed.2d 1373 (1958); Jefferson v. United States, 340 F.2d 194 (9th Cir. 1965). As to other circuits, see Borne v. United States, 332 F.2d 565 (5th Cir. 1964); Robinson v. United States, 327 F.2d 618 (8th Cir. 1964); Toy v. United States, 266 F. 326 (2d Cir. 1920).
Affirmed.