United States v. William P. Gregory and Albert Sumpter , 309 F.2d 536 ( 1962 )

LUMBARD, Chief Judge.

William P. Gregory and Albert Sumpter appeal from their convictions by Judge Cashin, sitting without a jury, in the District Court for the Southern District of New York, for violation of the narcotics laws, 21 U.S.C. §§ 173, 174. Each appellant claims the evidence was insufficient to prove possession and to raise the statutory presumption of knowledge of illegal importation. Finding no merit in these contentions, we affirm.

The government presented evidence that at about 2:30 A.M. on December 5, 1961, Gregory drove himself and Sumpter in Gregory’s 1961 Oldsmobile convertible to the Kimberly Hotel on West 74th Street in New York City. Gregory parked the car across the street from the hotel marquee which was lit. While being watched from a distance by several federal narcotics agents, Gregory got out of the car and entered the hotel, leaving Sumpter in the vehicle. Ten minutes later, Gregory came out of the hotel, carrying a brown paper bag. He reentered the ear and, at the same time, the agents approached to make the arrest. One of the agents, Ward, was known to Sumpter,¹ and, when Ward came into view, the window on Sumpter’s side of the car opened, an arm, holding the bag, slid “surreptitiously” out of the window, and the bag was dropped in the gutter.

The agents arrested Gregory and Sumpter, tested the contents of the bag disposed of through the window, finding heroin, and searched defendants and the automobile. No other bag was found.

There was ample evidence to sustain a finding that Gregory actually possessed the brown bag and carried it from the hotel to the car. Further, since no other bag was found at the scene, it was reasonable to infer that the bag Gregory carried was the same as the one containing heroin which was dropped from the car seconds later. Since the possession proved was reasonably related to the ultimate fact sought to be presumed — transportation of narcotics known to be unlawfully imported, United States v. Santore, 290 F.2d 51, 64, 79 (2 Cir., 1960) — the brevity of the possession is irrelevant. See United States v. Barrington, 291 F.2d 481 (2 Cir., 1961).

There was ample evidence that Sumpter held the bag and dropped it out of the car window into the gutter. Sumpter argues, however, that his possession, like that of Narducci in United States v. Santore, supra, did not involve that type of control from which it could reasonably be inferred “that the possessor was going to commit one or more of the specified acts which have been declared criminal.” 290 F.2d at 64. We disagree.

We do not understand Judge Kaufman’s suggestion that Sumpter might have disposed of the narcotics on Gregory’s order without knowing what they were. Since the attempt to dispose of the narcotics was made in full view of agents Bailey and Carrozo, who were approaching the car from the rear, it is most reasonable to suppose that they had not been seen by the defendants and that the disposal was prompted by the sight of Ward and the recognition of him as a government agent. The window from which the package was dropped was hidden from Ward, who was approaching from in front of the car on the driver’s side. So fair as the record indicates, it was Sumpter who recognized Ward. Therefore, it is reasonable to suppose that unless Sumpter already had possession of the narcotics when he saw Ward and, acting independently, disposed of them, he knew what Gregory’s package contained, and for that reason communicated the fact of Ward’s presence to Gregory. The evidence is thus convincing that the attempt to dispose of the narcotics originated with Sumpter.

Narducci’s possession, in the Santore case, supra, never became effective; before he had an opportunity to do anything with the narcotics, he relinquished his grasp, and the narcotics stayed where they were. Sumpter’s possession, although also brief, was more complete. As indicated above, it is reasonable to infer from the evidence that he took possession for the purpose of attempting to conceal the narcotics and that he accomplished his purpose, although the attempt failed. The distinction is not, as our dissenting brother argues, merely between “putting back” and “throwing out,” but rather between a grasp so fleeting that nothing is or is attempted to be accomplished and a possession which enables the possessor to do, for aught that appears, everything which he intended to do when he took possession. In these circumstances, we think the statutory presumption is applicable.

Affirmed.

1 . Sumpter admitted that he knew Ward as he had seen him in 1959 or 1960.