(dissenting) :
I would reverse this conviction since the jury was not adequately instructed with respect to what facts it was obliged to find in order to convict Casiano of a “transfer” to Fuselli.
Although 26 U.S.C. § 4742(a) does not define the meaning of “transfer,” some light is cast by the penalty provision, § 7237(b), which refers to “the sale, barter, exchange, giving away, or transfer.” This indicates an intention on the part of Congress that something more is required than the mere handing of marijuana from one person to another without any change in effective control.
If Fuselli was merely Casiano’s servant, it is very old law that no change in possession was effected. See Holmes, The Common Law 179 (Howe ed. 1963). The Government therefore was required to show that Fuselli was acting as a principal, either because he had acquired title to the marijuana or, at the very least, because Casiano had put the marijuana in his hands to do with as he wished. While it may be that the Government produced evidence barely sufficient to warrant submission of this issue to the jury, Casiano was entitled to an instruction which clearly pointed up what the issue was.
I find nothing in the charge which sufficiently enlightened the jury on this subject. The judge defined a transfer as “the giving, the turning over of marijuana either by yourself or by your agent in your behalf.” This language was apt enough with respect to the first count, but gave no help on the second. Indeed, it was quite confusing because the first count alleged, in effect, that Fuselli was Casiano’s employee in the earlier transaction, whereas the second alleged, in effect, that Fuselli was something more in the second. The difficulty was compounded by a further instruction that “if you are satisfied beyond a reasonable doubt that the defendant knowingly had control over that marijuana, either actually or constructively, you may convict him.” While the objection of defense counsel could have been more clearly stated, he said enough to raise the point. In any event I would apply the plain error rule in so close a case as this.