Memorandum — Cochran v. United States

In the Supreme Court of the United States

OcTOBER TERM, 1974

No. 74-522

Frep HORNSBY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

MEMORANDI M FOR THE UNITED STATES IN OPPOSITION

Petitioner contends (1) that a transfer of marijuana

between co-conspirators is not a transfer within the meaning

of the Marijuana Tax Act, and (2) that he was entrapped

into committing conspiracy. The first question was raised

by one of petitioner’s co-defendants in his petition for a

writ of certiorari now pending in this Court. See Daniel

J. Cochran v. United States, No. 74-81.!

Petitioner, Cochran and several others were charged

with conspiracy to acquire, transport, and conceal mari-

juana, in violation of 26 U.S.C. (1964 ed.) 4741-4744

(Count One); importation of marijuana , in violation of

21 U.S.C. (1964 ed.) 176a (Count Two); and transfer of

‘A copy of our memorandum in opposition in Cochran 1s being

sent to petitioner's counsel.

(1)

all a 5

2

marijuana, in violation of 26 U.S.C. (1964 ed.) 4742(a)

(Count Three).? Petitioner, Cochran and co-defendant

Register were convicted after jury trials in the United

States District Court for the Northern District of Georgia.'

Petitione: vas sentenced to a term of five years’ imprison-

ment on each count, the sentence on Count Two to run

consecutively to the concurrent terms of imprisonment

imposed on Counts One and Three. The court of appeals

affirmed in an opinion on which we rely (496 F. 2d 1072;

Pet. App. A).*

The facts of the case are not in dispute and were

briefly summarized by the court of appeals (Pet. App.

A, pp. 2a-3a):

Register, Hornsby and Cochran, along with several

others, organized and tunded a scheme for flying

a large amount of marijuana in from Jamaica. Un-

fortunately for them, Gilmore Sims, the pilot re-

cruited for the job, informed the Bureau of Narcotics

and Dangerous Drugs, enabling its agents to infil-

trate the conspiracy thoroughly at an early stage.

As testified to by undercover agents and co-conspir-

ators who turned state’s evidence, appellants pro-

vided funds and made arrangements for Sims to

fly to Jamaica, pick up approximately 3,250 pounds

of marijuana, and return.

Petitioner was arrested after the flight was completed.

2The Marijuana Tax Act. 26 U.S.C. 4741-4744, and the Marijuana

Importing Statute, 21 U.S.C. !76a, were repealed by the Compre-

hensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C.

801, et seqg., effective May |, 1971. The acts alleged in the indict-

ment occurred during 1970.

‘Register was tried separately and found guilty on each count otf

the indictment.

‘The court of appeals affirmed the convictions of each appellant

on all three counts of the indictment. Judge Gee, however, dissented

from the court's affirmance of Counts One and Three (Pet. App.

A, p. 2a).

3

1. Petitioner contends (Pet. 6) that his convicticn on

Count Three should be reversed because it is not possible

for co-conspirators to “transfer” marijuana within the

meaning of the Marijuana Tax Act. Petitioner did not

move in the trial court to dismiss Count Three on this

ground. Moreover, on direct appeal he did not challenge

his convic‘ion under Count Three.’ He therefore cannot

appropriately challenge it here. Lawn v. United States,

355 U.S. 339, 362, n. 16. We believe moreover, that the

definition of “transfer” has insufficient continuing im-

portance, in light of the repeal four years ago of the

Marijuana Tax Act, to warrant plenary consideration by

this Court.

In any event, the court of appeals properly construed

the statute. The statutory definition of the term “trans-

fer” includes “any type of disposition resulting in a change

ot possession,” 26 U.S.C. (1964 ed.) 4761(4) (emphasis

added), with the exception of transfer to a common

carrier. The definition is very broadly phrased. Even it

co-conspirators are \ 2wed as “partners” and “agents” of

each other, as petitioner urges, they are at most agents

for purposes of ownership of the contraband. The statute.

however, taxes transfers cf possession, not transfers of

ownership. Moreover,

{t]he fact that Congress saw fit to exclude as a

taxable event transfer to a common carrier is at

least suggestive that all other changes in possession

were within the congressional intent [Pet. App. A,

pp. 22a-23a].

‘The issue was raised by the dissenting judge on the panel.

a

4

There is no sound reason to read the statute to proscribe

ordinary transfers among individuals, while ee:npting

transfers of possession among co-conspirators. | > give

the statute the reading suggested by petitioner would

grant an unwarranted boon to those “wise” enough to

add io criminal transfers a criminal conspiratorial agree-

ment.

.

2. Petitioner also contends (Pet. 5-6) that the involve-

ment of the government's undercover agents in the flight

from Jamaica made it impossible for petitioner to be con-

victed of conspiracy. Apparcatly, petitioner argues that

the actions of the government agents in the conspiracy

serve to ratify the acts of the conspiracy. Relying upon

this Court’s opinion in United States v. Russell, 411 U.S.

423, the court of appeals correctly rejected this argument

(Pet. App. A. p. 15a):

[Petitioner’s] second point, and the cases on which

he relies for support, have been emasculated by the

Supreme Court's decision in United States v. Russell,

411 U.S. 423 * * * (1973). There is no denying that

the government so thoroughly infiltrated this con-

spiracy that, when the plane touched down in Georgia

with its cargo of marijuana, only one of the four

persons on board was not a government agent, and

he later turned state’s evidence. But this in no way

indicates a lack of predisposition on the part of appel-

lants. And we do not find the undercover tactics

“***so outrageous that due process principles

would absolutely bar the government from invoking

judicial processes to obtain a conviction * * *” 411

U.S. at 431° °*.

5

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

Ropert H. Bork,

Solicitor General.

JANUARY 1975.