(dissenting as to D’Aria and Massi).
I agree with the opinion of. Judge Waterman with one exception: i. e., I do not think that “possession” in the last paragraph of Sec. 174 of Title 21, U.S. Code, includes “constructive possession.” I understand by “possession,” as that term is commonly used in the law, either actual custody of the chattel, or at least that relation to the custodian that makes him unconditionally subject to the “possessor’s” demand for custody. I am of course aware that the outlines of the conception are not sharply drawn, but it seems to me that D'Aria and Massi did not have “possession” in the sense required. In the case at bar by adding “constructive possession” we give very important added advantage procedurally to the case for the prosecution, which it seems to me is unwarranted for reasons I shall try to state.
The paragraph in question creates more than a “presumption” for that would require no more than that the accused should put in some evidence that he had not dealt with the drugs in any of the ways forbidden. As I read the paragraph, “possession” by itself will support a conviction unless the accused “explains the possession to the satisfaction of the jury,” which in the end comes to saying that the burden of proof shifts to him to establish his innocence, once he is shown, not only to be in “possession” at the time of the forbidden dealings, but to have ever been in possession in the past. Assuming that such a statute would be constitutional, which, I submit, is not wholly free from doubt, it appears to me that at least the language should be explicit that “possession” has some other than the usual meaning. We must remember further that, not only is this a criminal statute, but that the penalties prescribed are extremely heavy.
Moreover, I find confirmation for my interpretation in the fact that when in 1914, five years later, Congress made dealing in narcotics lawful under specified conditions, among which was the “registry” of the dealers (Sec. 4722, Title 26, U.S.Code), it provided that “possession or control” should be presumed to be a violation of that act (Sec. 4724 (c), Title 26, U.S.Code), unless the dealer had “registered”; it did not shift the burden of proof. It is therefore clear that in that statute at least “pos*71session” was used in its ordinary sense, and that, when Congress meant to include “constructive possession,” it added the phrase, “or control.”
I agree that it does not necessarily follow that in 1909 the word may not have been used more comprehensively; but I submit that it is significant that, when dealing with the same subject matter — narcotic drugs — the same word was used so as to exclude “constructive possession.” Moreover, Sec. 4734 of Title 26 provides that Sec. 4722 — -among other sections- — -shall not “impair, alter, amend, or repeal” any part of the Act of 1914. I agree that this language means that whatever was “possession” under Sec. 174 remains “possession” under the Act of 1914, but, I cannot see how that helps to define what was “possession” under Sec. 174. Not only does it beg the question to assume that the word had the same meaning in both statutes, but it makes redundant the addition of the words, “or control,” in 1914. I can see no reason to imply that these were added merely to make assurance doubly sure. As I have said, the Act of 1909 imposed much heavier penalties, and procedural consequences of the “possession” were more drastic.
It is true that we have twice spoken as though “constructive possession” was enough under Sec. 174 (United States v. Cohen, 124 F.2d 164; United States v. Moia, 251 F.2d 255); but in both eases, “possession,” strieti juris, was proved and what we said was obiter. On the other hand in United States v. Landry, 257 F.2d 425 (1958) the Seventh Circuit decided that control by the accused over the custodian of narcotics was not alone enough to put the accused in “possession” under Sec. 174. In that case the control was more immediate than that of D’Aria and Massi in the case at bar. The point appears to me therefore to be still open for discussion.
To sum up I do not say that it would be unconstitutional to make “possession or control” enough to shift the burden of proof; but, I do think that if the intent was so far reaching, it was necessary to be more explicit as was done in the Act of 1914.