RESPONDENT: United States
LOCATION: Charleston, South Carolina
DOCKET NO.: 134
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit
CITATION: 358 US 326 (1959)
ARGUED: Jan 13, 1959
DECIDED: Jan 26, 1959
Facts of the case
Media for Greene v. United StatesAudio Transcription for Oral Argument - January 13, 1959 (Part 1) in Greene v. United States
Audio Transcription for Oral Argument - January 13, 1959 (Part 2) in Greene v. United States
James H. Heller:
-- giving the example of a supposed instance where Congress had got -- gone at bank robbery, robbery of national banks as indirectly as it went at narcotics in this case and I think I have previously said that it went at narcotics indirectly because of -- perhaps to a degree, an attempt to make it easy to indentify the narcotics, but most particularly because it had some doubts, doubts which the Government in its own brief in the Blockburger case which was quite late in this part of the history of the narcotics laws conceded were substantial, some doubts whether it could simply say narcotics sales within this country are illegal.
I don't know whether those doubts are still valid or not, I think there are later cases which indicate that they would not be any obstacle right now to a direct passage of a law saying you can't sell the following narcotics, unless you were a doctor or one of an accepted group.
The bank robbery case, I -- I suppose was one in which they carefully left out however the offence of robbing the bank just as Congress carefully avoided saying anything about simply selling narcotic A, B and C.
The closest it came to that it was in the Import Act.
I think there is a case that something like this, it's a case which I didn't cite in this brief, but it was cited in the Gore briefs and I relied on them heavily because of the massive legislative history that's contained in both briefs.
Ex Parte Neilsen at 131 United Sates reports, was not two different statutes but it was two different sections of a law which Congress had passed for the territory of Utah.
And one of them was a law involving bigamy, and one of them was a law involving adultery, and it's very, very significant or at least it's a good coincidence in a sense that this is very close to the case of Morey versus Commonwealth in 108 Massachusetts reports from which Blockburger draws its quoted strength at least.
That is -- that's the original statement of the different evidence rule, the Blockburger rule in this country.
But in Ex Parte Neilsen, this Court declined to allow double punishment under those circumstances.
So I don't think, I am not arguing about whether the theories of these cases proceed directly in the manner that we suggested in Gore and that we suggest here, but I don't think that there is any obstacle to this Court simply because Congress without an intent or concern to correlate laws as the Gore opinion suggested they might be in a single provision of law with provisos, I don't think the fact that Congress neglected to do that, having -- being concerned with the narcotics matter in this country for something now 50 years, is conclusive upon this Court's power or its -- its right in its own discretion to say that as a rule of prosecution leading to punishment, you may not treble these counts.
If they are closely related as these are, if the statutes aim at the same offense, but simply impose different requirements as the history indicates to ensure detection and to ensure that there is no kind of person engaging in this activity who can go scot free because of the loophole in the law.
And that I think is the substance of the narcotics laws history.
I -- I intend not to -- to stay on that question.
There are other -- other reasons and they were largely summarized I think in the Chief Justice's dissent in the Gore case.
There is the later history of the law, the severity of the punishment, the attempt to achieve uniform punishment, the fact that under this pattern of prosecution, the first offender can get much more than the second or third offender was intended to get under any of those laws.
And second and third offenders are to a degree treated as -- as people who are consolidated offenders under these laws it seems.
I don't mean to say that their punishment is consolidated but the laws then refer to each other as -- as -- regards previous offences.
Those points have all been made before and -- and surely this is in a way a debate and surely as we argue, I think it is a matter of choices for the Court, choices in -- in what I think is a decent criminal jurisprudence and a choice which is open to it in its supervision of the federal courts.
But the second question is the question of, if Blockburger applies or the different evidence rule as it's being called, how does it work and was it violated in this case?
Now, this -- this branch of the case was -- was pretty clearly indicated in Justice Brennan's dissent in the Gore case and it also is to be argued I think almost exclusively in the Harris case that follows and I won't dwell on it very long.
But to go back to the evidence in this case, the evidence against the petitioner was in two basic parts, I won't say it's merely two facts but it's two factual aggregates.
First, the narcotics agents never saw him with the narcotics on him, nor did they see him with the marked money which they used to purchase it.
They did see Barbara Floyd with both of these on her.
They arrested him rather shortly after the last sale, it was about ten days, but they've searched his house and him and they found none of the money.
The indication seems to be that he was simply taking the money from Barbara Floyd and going out to somebody else and getting the narcotics and passing them back to her.
But of course that activity, Barbara Floyd testified to directly and it was corroborated heavily by the federal agents and there can't be any doubt that he was aiding and abetting her, and that is the first basic fact.
Secondly, Barbara Floyd herself testified that of course, he had the narcotics in his possession when he either got the money from her after he had gotten the money he'd gone out and come back and gave her the narcotics.
And possession is a rather important element in this case.
I have assumed that the Court knew the laws that were involved in this case because they were all there in Gore, but I think it's important now to read them in connection with the way the -- this question of how Blockburger is applied here.
In the Narcotics Drug Import and Export Act, the statutes are printed at pages 2 to 4 of my brief, reads in pertinent part, "Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction contrary to law, or receives, conceals, sells, or any in manner facilitates the transportation, concealment or sale of any such narcotic commits -- is -- is subject to punishment and imprisonment -- fine and imprisonment."