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Albert Lopez GALLEGO Appellant
UNITED STATES of America Appellee
No. 16580
March 23 1960
Clague A. VanSlyke Tucson Ariz. for appellant.
Jack D. H. Hays U.S. Atty. Mary Anne Reimann Asst. U.S. Atty. Tucson Ariz. for appellee.
Before MATHEWS HAMLEY and MERRILL Circuit Court.
The Hon. Justice Hamley

Albert Lopez Gallego appeals from his conviction and sentence on a charge of unlawful importation of marijuana in violation of 21 U.S.C.A. SEC. 176a. Two questions are presented here. The first is whether because of an asserted missing link in the chain of evidence relating to the custody of a can and a sack containing marijuana it was error to admit these articles into evidence as exhibits. The second is whether the sentence imposed in conformity with 21 U.S.C.A. SEC. 176a and 26 U.S.C.A. SEC. 7237(d) constitutes cruel and unusual punishment within the meaning of the Eighth Amendment.

Concerning the question as to the admissibility of evidence the relevant facts are as follows: Appellant entered the United States from Mexico on April 3 1959 and was stopped at the border by an immigration inspector and a customs inspector. In the trunk of appellant's car the immigration inspector found a paper sack which contained a substance which appeared to be marijuana. He handed the sack to the customs inspector who in turn gave it to Fred Valenzuela Deputy Collector of Customs at the latter's nearby home. Valenzuela then took the sack to his office in the Customs House at Naco and put it in his desk.

Immediately afterwards he searched appellant at the Customs House and found upon the latter's person a Prince Albert tobacco can containing what appeared to be marijuana cigarettes. As soon as the can was found it was placed in Valenzuela's desk.

The sack and can were kept in the desk for approximately one hour during which Valenzuela was at all times in the vicinity of the desk. That night Valenzuela placed the sack and can in a safe in the Customs House. The next day he personally took these two articles to the Commissioner's hearing after which he returned them to the safe. Valenzuela took the can and sack from the safe about ten days later and sent them by registered mail to the customs laboratory in Los Angeles. They were returned by registered mail and replaced in the safe where they remained until the morning of the trial.

At the trial the immigration inspector who had found the paper sack in the trunk of appellant's car examined a paper sack which was handed to him and its contents and identified the sack as that which he had found. His initials appeared thereon. He similarly examined a can which was handed to him on which his initials appeared and identified the can as the one which had been taken from appellant's person. He testified that the contents of the can appeared to be the same as when the can was first found but was unable to testify that the contents actually were the same.

Valenzuela similarly examined the same paper sack and can which were produced at the trial. He identified the sack as the one which had been turned over to him at his home. He identified the can as the one which he had found on appellant's person and testified that its contents appeared to be 'very much' the same as when the can was discovered. A customs inspector who had been present when the automobile was searched examined the paper sack which was produced at the trial and its contents and identified the sack as the article found in the trunk of appellant's car.

A chemist for the United States Customs Service identified these two containers as the ones which had reached him by registered mail. On the basis of his analysis of their contents he testified that the sack and can each contained marijuana.

The safe at the customs office in Naco where the sack and can were placed for a period of time had a combination lock. The combination was known only by Valenzuela and by the acting deputy collector of customs who takes Valenzuela's place when the latter is away. The acting deputy collector was not called as a witness.

After all of the evidence reviewed above had been received the government offered the paper sack and its contents in evidence as exhibit 1-A and the can and its contents as exhibit 1-B. Appellant objected on the ground that the government had failed to show that it had exclusive control and possession of the articles during the ten days they were in the safe before being sent to the Los Angeles laboratory. The objection was overruled and the articles were admitted in evidence.

It is this objection which appellant renews here in contending that it was error to receive exhibits 1-A and 1-B in evidence. Specifically appellant argues that the 'chain of custody' must be complete and exclusive and that it was incumbent upon the government to prove that the articles could not have been tampered with during this ten-day period. In permitting introduction of the exhibits appellant contends Court drew the impermissible conclusion that the acting deputy collector who knew the combination of the safe but was not called as a witness did not change or tamper with the evidence.

Before a physical object connected with the commission of a crime may properly be admitted in evidence there must be a showing that such object is in substantially the same condition as when the crime was committed. This determination is to be made by the trial Court. Factors to be considered in making this determination include the nature of the article the circumstances surrounding the preservation and custody of it and the likelihood of intermeddlers tampering with it. If upon the consideration of such factors the trial Court is satisfied that in reasonable probability the article has not been changed in important respects he may permit its introduction in evidence. United States v. S. B. Penick & C. 2 Cir. 136 F.2d 413 415.

The jury of course is free to disregard such evidence upon its finding that the article was not properly identified or that there has been a change in its nature.

The trial Court's determination that the showing as to identification and nature of contents is sufficient to warrant reception of an article in evidence may not be overturned except for a clear abuse of discretion. No abuse of discretion was shown here.

The only other person who knew the combination of the safe was the acting deputy collector of customs. In the absence of any evidence to the contrary the trial Court was entitled to assume that this official would not tamper with the sack and can or their contents. Where no evidence indicating otherwise is produced the presumption of regularity supports the official acts of public officers and courts presume that they have properly discharged their official duties. Pasadena Research Laboratories v. United States 9 Cir. 169 F.2d 375 381-382.

There is no rule requiring the prosecution to produce as witnesses all persons who were in a position to come into contact with the article sought to be introduced in evidence. Pasadena Research Laboratories v. United States supra. *fn1

Accordingly the failure of the government to produce the acting deputy collector of customs as a witness did not require the trial court to reject exhibits 1-A and 1-B.

The trial court did not err in admitting these exhibits in evidence.

Appellant's attack upon the sentence as constituting cruel and unusual punishment within the meaning of the Eighth Amendment relates to the statutory restrictions which were placed upon Court in imposing the sentence.

Title 21 U.S.C.A. 176a provides that for the crime of which appellant was convicted the penalty for a first offense shall be imprisonment for not less than five years nor more than twenty years and in addition a fine of not more than $20, 000. Appellant was given the minimum penalty prescribed by this statute: a five-year prison term and no fine.

Appellant asserts however that were it not for 26 U.S.C.A. SEC. 7237(d) the trial court might have suspended sentence or granted probation. Likewise it is argued were it not for that statute appellant might have become eligible for parole after serving one third of his term as provided in 18 U.S.C.A. 4202. *fn2 It is contended in effect that under the particular facts of this case the sentence constitutes cruel and unusual punishment because consistent with section 7237(d) his sentence could not be suspended he could not be placed on probation and he may not be paroled. *fn3

Appellate courts have no control over a sentence which is within statutory limits. Flores v. United States 9 Cir. 238 F.2d 758. If however the sentence prescribed by statute is cruel and unusual within the meaning of the Eighth Amendment the statute itself is unconstitutional and any sentence imposed thereunder must be set aside. Weems v. United States 217 U.S. 349 30 S.Ct. 544 54 L.Ed. 793.

The purpose Congress sought to achieve in enacting section 7237(d) is succinctly stated in the report of House Committee on Ways and Means on H.R. 11619 which became the Narcotic Control Act of 1956. *fn4 This purpose does not exhibit an inclination to visit upon offenders such as appellant a penalty so out of proportion to the crime committed that it shocks a balanced sense of justice. At worst it merely forbids in this kind of case and for good reason the discretionary granting of special benefits which Congress did not have to permit in the first place.

We agree with the view expressed in State v. Thomas 224 La. 431 69 So.2d 738 740 in dealing with the validity of a similar state statute under a similar state constitutional provision:

'In view of the moral degeneration inherent in all aspects of the crime denounced by the Narcotic Act it cannot be said that the length or severity of the punishment here prescribed is disproportionate to the offense. *fn5

Appellant further contends that however valid the sentence or statute may be under other facts they contravene the Eighth Amendment as applied in this case. We find no circumstances here which warrant such a conclusion.



*fn1. This is also true in civil cases. See Rosedale Coal Co. v. Director of U.S. Bureau of Mines 4 Cir. 247 F.2d 299 303.

*fn2. Title 26 U.S.C.A. SEC. 7237(d) reads as follows:

'No suspension of sentence; no probation; etc. -- Upon conviction --

'(1) of any offense the penalty for which is provided in subsection (b) of this section subsections (c) (h) or (i) of section 2 of the Narcotic Drugs Import and Export Act as amended or such Act of July 11 1941 as amended or

'(2) of any offense the penalty for which is provided in subsection (a) of this section if it is the offender's second or subsequent offense 'the imposition or execution of sentence shall not be suspended probation shall not be granted section 4202 of title 18 of the United States Code shall not apply and the Act of July 15 1932 (47 Stat. 696; D.C. Code 24-201 and following) as amended shall not apply.'

*fn3. Appellant also contended in his brief that section 7237(d) prevents him from receiving good time allowance. At the oral argument however his Counsel conceded that this statute does not deprive him of this allowance. Good time allowance provided for under 18 U.S.C.A. SEC. 4161 is not affected by section


*fn4. 2 U.S. Code Congressional and Administrative News 84th Cong. 2d Sess. 1956 p. 3274 at pages 3284-3285 reading in part as follows:

'The need for the elimination of probation suspension of sentence and parole with respect to the first-offender-trafficker is demonstrated by the appearance of increasing numbers of recruits with a record of no previous narcotic offenses in the illicit trafficking because of the severe penalties imposed on repeating offenders. As a result of the fact that repeating offenders are subject to a heavier mandatory penalty under the Boggs' law persons having a previous narcotic or marihuana law violation conviction have moved into the background and recruited young hoodlums as peddlers.

At the present time 80 per cent of the violators apprehended and convicted are first offenders under the narcotic and marihuana laws. The majority of these individuals have prior records of crime. However because they have no prior conviction for violations under the Boggs law they are considered as first offenders. With the possibility of receiving probation or a suspended sentence these unscrupulous individuals are willing to risk apprehension for the profits derived from this type of crime.

Therefore it is the view of your committee that the first-offender-peddler problem will become progressively worse and eventually lead to the large scale recruiting of our youth by the upper echelon of traffickers unless immediate action is taken to prohibit parole probation or suspension of sentence in the case of all persons convicted of trafficking in narcotic and marihuana drugs.'

*fn5. See also State v. Bellam 225 La. 445 73 So.2d 311.