Waterman and Anderson, Circuit Judges, and Bartels, District Judge.*fn*
Appellant appeals from a judgment of conviction in the United States District Court for the Southern District of New York, before Judge Wyatt and a jury, for having violated, and for having conspired to violate, 18 U.S.C. § 545. Count one of the two count indictment charged a conspiracy unlawfully to receive, conceal, sell and transport illegally imported merchandise, knowing it to have been illegally imported. Count two charged the unlawful receipt, concealment, sale and transportation of 200 one-ounce bottles of illegally imported Arpege perfume, knowing of its illegal importation.*fn1 On this appeal appellant's only challenge is to the constitutionality of the portion of the statute that authorizes conviction upon proof of defendant's possession of illegally imported goods, unless such possession "is explained to the satisfaction of the jury."*fn2 The thrust of appellant's attack at argument, relying on Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970) and Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969) is that the connection between the fact of one's possession of illegally imported merchandise and the fact to be inferred therefrom, that the possessor had knowledge of illegal importation, is irrational and hence violates the due process clause of the Fifth Amendment.
Unlike similar language found in 21 U.S.C. § 174, authorizing conviction for possessing imported heroin once a defendant is shown to have had unexplained possession of heroin, 18 U.S.C. § 545 requires the Government to prove that the goods found in the defendant's possession were illegally imported before the defendant's knowledge of the illegal importation of them may be inferred. Although the § 174 presumptions as applied to possession of heroin were recently upheld, Turner v. United States, 90 S. Ct. at 646-653, they were held invalid when applied to possession of cocaine (at least in relatively small amounts), id. at 654 and n. 39, as were the similar 21 U.S.C. § 176a presumptions applicable to possession of marijuana, Leary v. United States, supra.
The test to be applied when judging the constitutionality of a statutory presumption has undergone extensive examination in Turner and former Supreme Court cases. In Tot v. United States, 319 U.S. 463, 467-468, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943), the Court stated:
Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts.
Subsequent to Tot, the Court considered two statutory presumptions dealing with illegal stills. In United States v. Gainey, 380 U.S. 63, 85 S. Ct. 754, 13 L. Ed. 2d 658 (1965) it was held that the defendant's unexplained presence at an illegal still authorized the jury to infer that he was "carrying on" the business of a distiller, but in United States v. Romano, 382 U.S. 136, 86 S. Ct. 279, 15 L. Ed. 2d 210 (1965) it was held that the jury was not authorized to infer from the defendant's unexplained presence at an illegal still that he had possession, custody or control of the still. In Leary v. United States, supra 395 U.S. at 36, 89 S. Ct. at 1548, the Court further instructed:
The upshot of Tot, Gainey, and Romano is, we think, that a criminal statutory presumption must be regarded as "irrational" or "arbitrary," and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.
Nevertheless, the "controlling" test is not clear for although the Leary Court found it "irrational" to presume that one possessing marijuana knew it had been illegally imported, the Court added a caveat by saying the Court did not need to decide whether a criminal presumption which "passes muster" when judged by the "more likely than not" standard must also satisfy the criminal "reasonable doubt" standard. Id. at 36, n. 64, 89 S. Ct. 1532, reaffirmed in Turner v. United States, 90 S. Ct. at 646. The Court was again able to skirt this issue when it ruled in Turner, supra at 652, that the presumption permitting the jury to infer that heroin possessed in this country is illegally imported is valid, "whether judged by the more likely than not standard applied in Leary v. United States, supra, or by the more exacting reasonable-doubt standard normally applicable in criminal cases, * * *." Turning to the presumption of knowledge, the Turner Court decided that due to the fact that "little if any heroin is made in the United States" a defendant found in possession of heroin would be "aware of the 'high probability' that the heroin in his possession had originated in a foreign country." Id. at 652.*fn3
The development of different rules relative to the probative effect of unexplained possession of heroin and unexplained possession of perfume which is proved at trial to have been smuggled perfume arises from the fact, accepted as an undisputable one, that the great bulk of foreign-produced perfume finds its way into this country lawfully, while all importation of heroin is unlawful. Obviously a smuggler of Arpege perfume would know he had smuggled it; also one who knew he was dealing in smuggled perfume would know it had been illegally imported. However, after those involved with the entry or the initial circulation of smuggled perfume have disposed of the merchandise and the perfume has become goods in lawful commerce, there would no longer seem to be a "high probability" that one in possession of such perfume would know that it was some of the relatively small amount that is smuggled.
If the permissible inference authorized by 18 U.S.C. § 545 can be upheld it must find support in the common law, for we need not "weigh heavily" the congressional determination when the inference permitted, as here, is within "specialized judicial competence." Leary v. United States, supra at 35-36, 89 S. Ct. 1532. The inference authorized by statute with respect to smuggled goods is closely akin to the common-law rule which allows the jury, once a defendant is shown to have possession of recently stolen property, to infer that he knew the property to have been stolen. E.g., United States v. Minieri, 303 F.2d 550, 554 (2 Cir. 1962). This rule, long recognized in the common law, is not, however, directly applicable to a consideration of the statutorily created inference involved in the present case. Section 545 allows the jury to infer knowledge of illegal importation irrespective of the length of time elapsing between the date the goods illegally entered this country and the date the goods were found in the defendant's possession. Cf. United States v. O'Brien, 255 F. Supp. 755, 766 (D.C.1965), aff'd, 365 F.2d 601, 605-606 (6 Cir. 1966), judgment vacated, 386 U.S. 345, 87 S. Ct. 1158, 18 L. Ed. 2d 94 (1967). Absent the additional showing of "recent" illegal importation, we cannot say "with substantial assurance" that one found in possession of smuggled goods which are not of the kind of goods where importation is absolutely forbidden, as heroin, is "more likely than not" to be aware of a "high probability" that the goods had at one time been smuggled. Cf. Leary v. United States, supra at 45-53, 89 S. Ct. 1532.
In the present case, however, the government proof substantiated beyond a reasonable doubt that the perfume the appellant, then a seaman on the S.S. United States, sought to sell to an undercover Bureau of Customs agent, one Weinstein, had been recently smuggled, and that the appellant actually knew of his own personal knowledge that the perfume had been illegally imported. Appellant represented to Weinstein, who told Matalon that he wished to purchase some perfume, that he could get as much Arpege perfume as Weinstein wanted, that it was of good quality, that it came from overseas, and that he had no problem bringing the perfume into the United States. Several attempts to fill Weinstein's order failed for one reason or another, but after appellant saw that Weinstein actually had the cash to effect a purchase he called Oscar Zavala, a fellow crew member who he knew had taken ashore a large number of Arpege bottles from their ship. As a result of this call a price of $10 a bottle for 200 bottles was arrived at. Zavala and appellant each presented a carton of bottles to Weinstein, and then, at a pre-arranged signal, Matalon and Zavala were arrested. The Government also proved that there were no properly executed customs declarations and no matching "release slips" for the quantities of bottles Zavala and Matalon had planned to sell to Weinstein. Zavala took the stand and denied illegally importing the perfume. Matalon did not take the stand and the testimony of the undercover agent and of the arresting officer was in no way rebutted by him.
The court charged the jury that in order to convict either of the defendants on ...