LEARY v. UNITED STATES
No. 65
Supreme Court of the United States
May 19, 1969
Argued December 11-12, 1968
Briefs of amici curiae urging reversal were filed by Jonathan Sobeloff and Melvin L. Wulf for the American Civil Liberties Union, and by Joseph S. Oteri for the National Student Assn.
MR. JUSTICE HARLAN delivered the opinion of the Court.
This case presents constitutional questions arising out of the conviction of the petitioner, Dr. Timothy Leary, for violation of two federal statutes governing traffic in marihuana.
The circumstances surrounding petitioner‘s conviction were as follows. On December 20, 1965, petitioner left New York by automobile, intending a vacation trip to Yucatan, Mexico. He was accompanied by his daughter and son, both teenagers, and two other persons. On
Petitioner was indicted and tried before a jury in the Federal District Court for the Southern District of Texas, on three counts. First, it was alleged that he had knowingly smuggled marihuana into the United States, in violation of
After both sides had presented their evidence and the defense had moved for a judgment of acquittal, the District Court dismissed the first or smuggling count.4 The jury found petitioner guilty on the other two counts. He was tentatively sentenced to the maximum punishment, pending completion of a study and recommendations to be used by the District Court in fixing his final sentence.5 On appeal, the Court of Appeals for the
Fifth Circuit affirmed. 383 F. 2d 851 (1967). That court subsequently denied a petition for rehearing and rehearing en banc. 392 F. 2d 220 (1968).
We granted certiorari, 392 U. S. 903 (1968), to consider two questions: (1) whether petitioner‘s conviction for failing to comply with the transfer tax provisions of the Marihuana Tax Act violated his Fifth Amendment privilege against self-incrimination; (2) whether petitioner was denied due process by the application of the part of
I.
We consider first petitioner‘s claim that his conviction under the Marihuana Tax Act violated his privilege against self-incrimination.
A.
Petitioner argues that reversal of his Marihuana Tax Act conviction is required by our decisions of last Term in Marchetti v. United States, 390 U. S. 39 (1968), Grosso v. United States, 390 U. S. 62 (1968), and Haynes v. United States, 390 U. S. 85 (1968). In Marchetti, we held that a plea of the Fifth Amendment privilege provided a complete defense to a prosecution for failure to register and pay the occupational tax on wagers, as re-
In Grosso, we held that the same considerations required that a claim of the privilege be a defense to prosecution under
In order to understand petitioner‘s contention that compliance with the Marihuana Tax Act would have obliged him to incriminate himself within the meaning of the foregoing decisions, it is necessary to be familiar with the statutory scheme. The Marihuana Tax Act has two main subparts. The first imposes a tax on transfers of marihuana, the second an occupational tax upon those who deal in the drug. It is convenient to begin with the occupational tax provisions,
The first of the transfer tax provisions,
person, “whether or not required to pay a special tax and register under
Another statutory provision,
Finally,
C.
If read according to its terms, the Marihuana Tax Act compelled petitioner to expose himself to a “real and appreciable” risk of self-incrimination, within the meaning of our decisions in Marchetti, Grosso, and Haynes. Sections 4741-4742 required him, in the course of obtaining an order form, to identify himself not only as a transferee of marihuana but as a transferee who had not registered and paid the occupational tax under
Petitioner had ample reason to fear that transmittal to such officials of the fact that he was a recent, unregistered transferee of marihuana “would surely prove a significant ‘link in a chain’ of evidence tending to establish his guilt”13 under the state marihuana laws then in effect.14 When petitioner failed to comply with the Act, in late 1965, possession of any quantity of marihuana was apparently a crime in every one of the 50 States, including New York, where petitioner claimed the transfer occurred, and Texas, where he was arrested and convicted.15 It is
Thus, at the time petitioner failed to comply with the Act those persons who might legally possess marihuana under state law were virtually certain either to be registered under
D.
The Government, however, vigorously contends that when the Act is considered together with the accompanying regulations, and in light of existing administrative practice, its incriminatory aspect will be seen to vanish or shrink to less than constitutional proportions. The Government points first to regulations, 26 CFR §§ 152.22, 152.23, added in 1964, which provide that every applicant for registration under
The Government asserts that these regulations clearly signify that no person will be permitted to register unless his activities are permissible under the law of his jurisdiction, and that no one will be permitted to obtain an order form and prepay the transfer tax unless he has registered.20 The result, the Government contends, is simply to prohibit nonregistrants like petitioner from dealing in marihuana at all. The Government further asserts that the administrative practice of the Internal Revenue Service and the Bureau of Narcotics has always been consistent with this interpretation, though it concedes that there apparently has never been an attempt by
We cannot accept the Government‘s argument, for we find that Congress did intend that a nonregistrant should be able to obtain an order form and prepay the transfer tax. This congressional intent appears both from the language of the Act and from its legislative history.
We begin with the words of the statute.
The legislative history also strongly indicates that the Act was intended merely to impose a very high tax on transfers to nonregistrants and not to prohibit such transfers entirely. As a taxing measure, the bill of course originated in the House of Representatives. At the start of the first hearing on the bill, before the House Ways and Means Committee, the committee chairman announced that he had introduced the bill at the request of the Secretary of the Treasury.23 The transfer provisions of the bill then read essentially as they do now.24 The first witness to appear before the Committee was the Treasury Department‘s Assistant General Counsel, Clinton M. Hester. He began by stating that the bill‘s purpose was “not only to raise revenue from the marihuana traffic, but also to discourage the current and widespread undesirable use of marihuana by smokers and drug addicts . . . .”25 He stated that in form the bill was a “synthesis” of the Harrison Narcotics Act, now
The Treasury witness explained that the marihuana tax bill generally followed the plan of the Narcotics Act insofar as it required dealers in marihuana to register and prohibited transfers except by order form. But he testified that because of constitutional doubts:
“[a]t this point, this bill, like the National Firearms Act, departs from the plan of the Harrison Narcotic Act which limits the right to purchase narcotic drugs to those persons who are permitted to register under that act. . . .
“[I]n order to obviate the possibility of [an] attack upon the constitutionality of this bill, it, like the National Firearms Act, permits the transfer of marihuana to nonregistered persons upon the payment of a heavy transfer tax. The bill would permit the transfer of marihuana to anyone, but would impose a $100 per ounce tax upon a transfer to a person who might use it for purposes which are dangerous and harmful to the public . . . .”27
Mr. Hester was also the first witness before a subcommittee of the Senate Finance Committee. There he testified in less detail, stating at different points that the purpose of the transfer provisions was “to discourage the widespread use of the drug by smokers and drug addicts,”28 “to render extremely difficult the acquisition of
The House and Senate reports describe the purposes of the transfer provisions largely in the language of Mr. Hester‘s testimony. The House report declares that the purpose was “to discourage the widespread use of the drug by smokers and drug addicts,”32 to “render extremely difficult the acquisition of marihuana by persons who desire it for illicit uses,”33 and “through the $100 transfer tax to prevent the drug from coming into the hands of those who will put it to illicit uses.”34 In discussing the issue of constitutionality, the report recites that “[t]he law is . . . settled that Congress has the power to enact a tax which is so heavy as to discourage the transactions or activities taxed”35 and states that “[t]hese cases sustain the $100 tax imposed . . . upon transfers . . . to unregistered persons.”36 The Senate report, without discussing constitutionality, otherwise states the purpose of the transfer provisions in the very same words as the House report.37 Thus, the committee reports confirm Mr. Hester‘s account of the bill‘s purposes. In short, the legislative history fully accords with the statutory language.
Upon this evidence, we have no hesitation in concluding that the interpretation which the Government would
Nor are we persuaded by the Government‘s argument that its construction has been followed by the Internal Revenue Service and the Bureau of Narcotics ever since the passage of the Act, and that this “long-standing” interpretation by the agencies charged with administering the Act should be controlling. We have often recognized that, as a general matter, a long-standing, contemporaneous construction of a statute by the administering agencies is “entitled to great weight,” FTC v. Mandel Bros., 359 U. S. 385, 391 (1959), and will be “show[n] great deference,” Udall v. Tallman, 380 U. S. 1, 16 (1965).41 However, in this instance the Government admits that until our decisions last Term in Marchetti, Grosso, and Haynes, the alleged interpretation had been made known only through the regulations themselves, since there apparently had never been an application by a nonregistrant to prepay the transfer tax. Moreover, in its brief in this Court in United States v. Sanchez, 340 U. S. 42 (1950), the United States plainly took the position that the Act imposed only a tax and not a prohibition on transfers to nonregistrants,42 implying that at that time the alleged administrative construction was unknown even to those charged with representing the
The foregoing shows that at the time petitioner acquired marihuana he was confronted with a statute which on its face permitted him to acquire the drug legally, provided he paid the $100 per ounce transfer tax and gave incriminating information, and simultaneously with a system of regulations which, according to the Government, prohibited him from acquiring marihuana under any conditions. We have found those regulations so out of keeping with the statute as to be ultra vires. Faced with these conflicting commands, we think petitioner would have been justified in giving precedence to the higher authority: the statute.43 “[L]iteral and full compliance’ with all the statutory requirements”44 would have entailed a very substantial risk of self-incrimination. See supra, at 16-18.
The United States has not urged us, as it did in Marchetti, Grosso, and Haynes, to avoid this constitutional difficulty by placing restrictions upon the use of information gained under the transfer provisions. We declined to impose use restrictions in those cases because we found that the furnishing of information to interested prosecutors was a “significant element of Congress’ purposes in adopting” the statutes there involved. Marchetti v. United States, supra, at 59 (1968).45 The
E.
There remain the further questions whether this petitioner‘s claim of the privilege was timely and whether it was waived. As for timeliness, petitioner did not assert the privilege as a defense to the
In denying Leary‘s petition for rehearing, the Court of Appeals, in addition to holding the privilege generally inapplicable to prosecutions under
The Government suggests that petitioner waived his right to plead self-incrimination in yet another way, by testifying at trial that he had violated the statute for reasons entirely unrelated to fear of self-incrimination. It is true that some portions of petitioner‘s testimony indicate that his noncompliance was motivated, at least
II.
Next, we consider whether, in the circumstances of this case, the application of the presumption contained in
Insofar as here relevant,
“knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law . . . , or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such marihuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law . . . .”
A subsequent paragraph establishes the presumption now under scrutiny:
“Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.”
The second count of the indictment charged petitioner with having violated the “transportation” and “concealment” provisions of
In view of this testimony, the trial court instructed the jury that it might find petitioner guilty of violating
The Government contends that by giving testimony at trial which established all elements of the offense under the “South-North” theory, and by failing to object to the jury instructions on the ground now advanced, petitioner foreclosed himself from raising the point thereafter. We cannot agree. Even assuming that petitioner‘s testimony did supply all the evidence required for a valid conviction under the “South-North” theory, the jury nevertheless was told that it could alternatively convict with the aid of the presumption under the “North-South” theory. For all we know, the conviction did rest on that ground. It has long been settled that when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that
It is true that petitioner did not object to the jury instructions on the basis of the presumption‘s alleged unconstitutionality.53 However, he did rely upon that ground in his previous motion for a directed verdict at the close of the prosecution‘s case, and urged it again in his subsequent motion for a new trial.54 Both motions were denied. The Court of Appeals considered petitioner‘s constitutional argument on the merits, and rejected it. See 383 F. 2d, at 868-870. In these circumstances, we conclude that the question is properly before us.55
B.
By what criteria is the constitutionality of the
Early decisions of this Court set forth a number of different standards by which to measure the validity of statutory presumptions.56 However, in Tot v. United States, 319 U. S. 463 (1943), the Court singled out one of these tests as controlling, and the Tot rule has been adhered to in the two subsequent cases in which the issue has been presented. The Tot Court had before it a federal statute57 which, as construed, made it a crime for one previously convicted of a crime of violence to receive any firearm or ammunition in an interstate transaction. The statute further provided that “the possession of a firearm or ammunition by any such person shall be presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act.”
The Court, relying upon a prior decision in a civil case,58 held that the “controlling” test for determining the validity of a statutory presumption was “that there be a rational connection between the facts proved and the fact presumed.” 319 U. S., at 467. 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 infer-
ence 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.” 319 U. S., at 467-468 (footnotes omitted).
The Tot Court reduced to the status of a “corollary” another test which had some support in prior decisions:59 whether it was more convenient for the defendant or for the Government to supply proof of the ultimate fact which the presumption permitted to be inferred. The Court stated that “[t]he argument from convenience is admissible only where the inference is a permissible one . . . .” 319 U. S., at 469. The Court rejected entirely another suggested test with some backing in the case law,60 according to which the presumption should be sustained if Congress might legitimately have made it a crime to commit the basic act from which the presumption allowed an inference to be drawn.61 The Tot Court stated simply that “for whatever reason” Congress had not chosen to make the basic act a crime. Id., at 472.
Applying the “rational connection” test, the Court held the Tot presumption unconstitutional. The Court rejected the contention that because most States forbade intrastate acquisition of firearms without a record of the transaction or registration of ownership it could be inferred merely from possession that an acquisition which did not meet these requirements must have been interstate, noting the alternative possibilities of unlawful
The two subsequent cases in which this Court ruled upon the constitutionality of criminal statutory presumptions, United States v. Gainey, 380 U. S. 63 (1965), and United States v. Romano, 382 U. S. 136 (1965), involved companion sections of the Internal Revenue Code dealing with illegal stills. The presumption in Gainey was worded similarly to the one at issue here; it permitted a jury to infer from a defendant‘s presence at an illegal still that he was “carrying on” the business of a distiller “unless the defendant explains such presence to the satisfaction of the jury . . . .” See
We held that the Gainey presumption should be tested by the “rational connection” standard announced in Tot. We added:
“The process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.” 380 U. S., at 67.
Applying these principles, we sustained the Gainey presumption, finding that it “did no more than ‘accord to the evidence, if unexplained, its natural probative force.‘” 380 U. S., at 71.
The presumption under attack in United States v. Romano, supra, was identical to that in Gainey except that it authorized the jury to infer from the defendant‘s presence at an illegal still that he had possession, custody, or control of the still. See
“Presence is relevant and admissible evidence in a trial on a possession charge; but absent some showing of the defendant‘s function at the still, its connection with possession is too tenuous to permit a reasonable inference of guilt—‘the inference of the one from proof of the other is arbitrary . . . .’ Tot v. United States, 319 U. S. 463, 467.” Ibid.63
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.64 And in the judicial assessment the congressional determination favoring the particular presumption must, of course, weigh heavily.
How does the
So far as here relevant, the presumption, quoted supra, at 30, authorizes the jury to infer from a defendant‘s possession of marihuana two necessary elements of the crime: (1) that the marihuana was imported or brought into the United States illegally; and (2) that the defendant knew of the unlawful importation or bringing in.65 Petitioner argues that neither inference is valid, citing undisputed testimony at his trial to the effect that marihuana will grow anywhere in the United States, and that some actually is grown here.66 The Government contends, on the other hand, that both inferences are permissible. For reasons that follow, we hold unconstitutional that part of the presumption which relates to a defendant‘s knowledge of illegal importation. Consequently, we do not reach the question of the validity of the “illegal importation” inference.
With regard to the “knowledge” presumption, we believe that Tot and Romano require that we take the statute at face value and ask whether it permits conviction upon insufficient proof of “knowledge,” rather than inquire whether Congress might have made possession itself a crime.67 In order thus to determine the con-
Of course, it must be kept in mind that “significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.” Ibid. However, it quickly becomes apparent that the legislative record does not supply an adequate basis upon which to judge the soundness of the “knowledge” part of the presumption. We have therefore taken other materials into account as well, in an effort to sustain the presumption. In so doing, we have not confined ourselves to data available at the time the presumption was enacted in 1956, but have also considered more recent information, in order both to obtain a broader general background and to ascertain whether the intervening years have witnessed significant changes which might bear upon the presumption‘s validity.68
As has been noted, we do not decide whether the presumption of illegal importation is itself constitutional.
D.
Since the importation question is a subsidiary one, we take it up first, beginning, of course, with the legislative history of
On the other hand, written material inserted in the record of the Senate hearings included former testimony of an experienced federal customs agent before another Senate committee, to the effect that high-quality marihuana was being grown near the Texas cities of Laredo and Brownsville.73 A written report of the Ohio Attorney General recited that marihuana “may grow unnoticed along roadsides and vacant lots in many parts of the country,”74 and a Philadelphia Police Academy bulletin stated that: “Plenty of [marihuana] is found growing in this city.”75
Examination of periodicals and books published since the enactment of the presumption leaves no doubt that in more than a dozen intervening years there have been great changes in the extent and nature of marihuana use in this country. With respect to quantity, one readily available statistic is indicative: the amount of marihuana seized in this country by federal authorities has jumped from about 3,400 pounds in 1956 to about 61,400 pounds in 1967.76 With regard to nature of use, the 1955 hearing records and other reports portray marihuana smoking as at that time an activity almost exclu-
Despite these undoubted changes, the materials which we have examined point quite strongly to the conclusion that most domestically consumed marihuana is still of foreign origin. During the six years 1962-1967, some 79% of all marihuana seized by federal authorities was seized in attempted smuggling at ports and borders.79 The Government informs us that a considerable part of the internally seized marihuana bore indications of foreign origin.80 While it is possible that these facts reflect only the deployment of federal narcotics forces, rather than the actual proportion of imported to domestic marihuana, almost all of the authorities which we have con-
Petitioner makes much of statistics showing the number of acres of domestic marihuana destroyed annually by state and federal authorities, pointing out that if harvested the destroyed acreage could in each year have accounted for all marihuana estimated to have been consumed in the United States,82 and that no one knows how many acres escape destruction. However, several factors weaken this argument from domestic growth. First, the number of acres annually destroyed declined by a factor of three between 1959 and 1967,83 while during the same period the consumption of marihuana, as measured by federal seizures, rose twenty-fold.84
The Government urges that once it is concluded that most domestically consumed marihuana comes from abroad—a conclusion which we think is warranted by the data just examined—we must uphold the “knowledge” part of the presumption in light of this Court‘s decision in Yee Hem v. United States, 268 U. S. 178 (1925). In that case, the Court sustained a presumption which was virtually identical to the one at issue here except that the forbidden substance was smoking opium rather than marihuana. With respect to the inference of knowledge from possession which was authorized by that presumption, the Court said:
“Legitimate possession [of opium], unless for medicinal use, is so highly improbable that to say to any person who obtains the outlawed commodity, ‘since you are bound to know that it cannot be brought into this country at all, except under regulation for medicinal use, you must at your peril ascertain and be prepared to show the facts and circumstances which rebut, or tend to rebut, the natural inference of unlawful importation, or your knowledge of it,’ is not such an unreasonable requirement as to cause it to fall outside the constitutional power of Congress.” 268 U. S., at 184.
The Government contends that Yee Hem requires us to read the
F.
We therefore must consider in detail whether the available evidence supports the conclusion that the “knowl-
Even if we assume that the previously assembled data are sufficient to justify the inference of illegal importation, see supra, at 44, it by no means follows that a majority of marihuana possessors “know”93 that their marihuana was illegally imported. Any such proposition would depend upon an intermediate premise: that most marihuana possessors are aware of the level of importation and have deduced that their own marihuana was grown abroad. This intermediate step might be thought justified by common sense if it were proved that little or no marihuana is grown in this country. Short of such a showing, not here present, we do not believe that the inference of knowledge can be sustained solely because of the assumed validity of the “importation” presumption.
Once it is established that a significant percentage of domestically consumed marihuana may not have been imported at all, then it can no longer be postulated, without proof, that possessors will be even roughly aware of the proportion actually imported. We conclude that in order to sustain the inference of knowledge we must
We can imagine five ways in which a possessor might acquire such knowledge: (1) he might be aware of the proportion of domestically consumed marihuana which is smuggled from abroad and deduce that his was illegally imported; (2) he might have smuggled the marihuana himself; (3) he might have learned by indirect means that the marihuana consumed in his locality or furnished by his supplier was smuggled from abroad; (4) he might have specified foreign marihuana when making his “buy,” or might have been told the source of the marihuana by his supplier; (5) he might be able to tell the source from the appearance, packaging, or taste of the marihuana itself.
We treat these five possibilities seriatim, in light of the available materials, beginning in each instance with the legislative record. We note at the outset that although we have been able to discover a good deal of relevant secondary evidence, we have found none of the best kind possible—testimony of marihuana users about their own beliefs as to origin, or studies based upon interviews in which users were asked about this matter. The committee hearings which preceded passage of
The first possibility is that a possessor may have known the proportion of imported to domestic marihuana and have deduced that his own marihuana was grown abroad. The legislative record is of no assistance in evaluating this possibility. Such indirect evidence as we have found points to the conclusion that while most marihuana users probably know that some marihuana comes from Mexico, it is also likely that the great majority either have no knowledge about the proportion which is imported or believe that the proportion is considerably lower than may actually be the case.97
The second possibility is that a possessor may know the origin of his marihuana because he smuggled it into the United States himself. The legislative record is unhelpful in estimating the proportion of possessors who fall into this class. Other sources indicate that there are a considerable number of smokers who “smuggle their own,” but that the great majority of possessors have obtained their marihuana from suppliers in this country.98
The fourth possibility is that the possessor may have specified foreign marihuana when making his purchase or may have been told by his supplier that the marihuana was grown abroad. The legislative record is somewhat more helpful with respect to this possibility, for it does contain statements to the effect that Mexican marihuana is more potent than domestic and is consequently preferred by smokers.100 However, the legislative record also contains testimony by a customs agent that Texas marihuana is as “good” as that from Mexico.101 Most authorities state that Mexican marihuana generally does have greater intoxicating power than domestic marihuana, due to the higher temperatures and lower humidity usually encountered in Mexico.102 There are some indications that smokers are likely to prefer Mexican marihuana,103 but there is nothing to show that purchasers
The fifth possibility is that a smoker may be able to tell the source of his marihuana from its appearance, packaging, or taste. As for appearance, it seems that there is only one species of marihuana, and that even experts are unable to tell by eye where a particular sample was grown.106 The Court of Appeals for the Ninth Circuit did find in Caudillo v. United States, 253 F. 2d 513 (1958), on the basis of trial testimony, that “unmanicured” or “rough” marihuana—that is, marihuana containing some seeds and stems, as well as leaves—was much more likely to come from Mexico than from California; this was because the presence of seeds implied that the plant had been allowed to mature and evidence showed that California growers almost always harvested the plant before that stage. However, we have found nothing to indicate that this distinction holds good in other areas of the country, or that marihuana possessors are likely to realize its significance.
With respect to taste, the Senate hearing record contains the statement of a federal customs agent that: “A good marihuana smoker can probably tell good marihuana
G.
We conclude that the “knowledge” aspect of the
We find it impossible to make such a determination. As we have seen, the materials at our disposal leave us at large to estimate even roughly the proportion of marihuana possessors who have learned in one way or another the origin of their marihuana. It must also be recognized that a not inconsiderable proportion of domestically consumed marihuana appears to have been grown
Nor are these deficiencies in the foundation for the “knowledge” presumption overcome by paying, as we do, the utmost deference to the congressional determination that this presumption was warranted. For Congress, no less than we, is subject to constitutional requirements, and in this instance the legislative record falls even shorter of furnishing an adequate foundation for the “knowledge” presumption than do the more extensive materials we have examined.
We thus cannot escape the duty of setting aside petitioner‘s conviction under Count 2 of this indictment.
For the reasons stated in Part I of this opinion we reverse outright the judgment of conviction on Count 3 of the indictment. For the reasons stated in Part II, we reverse the judgment of conviction on Count 2 and
Reversed and remanded.
MR. CHIEF JUSTICE WARREN joins Part II of the opinion of the Court and, considering himself bound by the decisions in Marchetti v. United States, 390 U. S. 39 (1968), Grosso v. United States, 390 U. S. 62 (1968), and Haynes v. United States, 390 U. S. 85 (1968), concurs in the result as to Part I.
MR. JUSTICE STEWART, concurring.
I join Part II of the Court‘s opinion. As to Part I, I have before now expressed my conviction that the
I concur in the Court‘s outright reversal of the petitioner‘s conviction on Count 3 of the indictment for the reasons set out in Part I of the Court‘s opinion.
I also concur in reversal of the petitioner‘s conviction on Count 2 of the indictment, based on
It is for these reasons, and not because I think the law is “‘irrational’ or ‘arbitrary,’ and hence unconstitutional,” ante, at 36, that I would invalidate this presumption. I am firmly and profoundly opposed to construing “due process” as authorizing this Court to invalidate statutes on any such nebulous grounds. My quite different reasons for holding that the presumption does deny due process of law, that is the benefit of the “law of the land,” have been fully set out in many opinions, including, for illustration, my concurring opinion in Tot v. United States, 319 U. S. 463, 473 (1943), and my dissenting opinion in United States v. Gainey, 380 U. S. 63, 74 (1965).
Notes
“Notwithstanding any other provision of law, whoever, knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law, or smuggles or clandestinely introduces into the United States marihuana which should have been invoiced, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such marihuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or whoever conspires to do any of the foregoing acts, shall be imprisoned . . . .
“Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.”
See Grosso v. United States, 390 U. S. 62, 76 (1968) (concurring opinion); In re Gault, 387 U. S. 1, 80, n. 3 (1967) (dissenting opinion).“It shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by
“(1) to acquire or otherwise obtain any marihuana without having paid such tax, or
“(2) to transport or conceal, or in any manner facilitate the transportation or concealment of, any marihuana so acquired or obtained.”
The statutory scheme of the Marihuana Tax Act is analyzed in more detail at 14-16, infra.
In 1965, New York and Texas had in effect statutory provisions substantially identical to the above sections of the Uniform Act. For New York, see
“Now, you might have some difficulty with the question on Count 2 . . . .
“I mention this a second time because you might be confused about the question of importation.
“We are not talking necessarily about the importation or what the government contends was importation here at the bridge.
“The defendant has told us that he received the marihuana in New York. This statute, of course, is of application throughout the land and the presumption would still apply that the narcotic had been imported illegally and that he knew it had been imported illegally unless he explains his possession to the satisfaction of the jury.” Appendix 103a-104a.
“When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.”