Harris v. United States – Oral Argument – January 14, 1959

Media for Harris v. United States

Audio Transcription for Oral Argument – January 13, 1959 in Harris v. United States

del

Earl Warren:

Number 11, Nathaniel Harris, Petitioner, versus United States of America.

Mr. Glazer, you may continue.

Sidney M. Glazer:

Before sitting down, I want to answer an argument of Mr. Murphy which he made in the Greene case.

Mr. Murphy stated that one reason why cumulative punishment might be imposed is because these two presumptions are different.

Now, this is an argument which he didn’t make in his brief, and his argument, as I understood it, was that the import presumption applies whether or not the drug is stamped, whereas the Stamp Act presumption only applies when the drug is stamped.

It is our position in this regard that — that in dealing with the import presumption, there is only one valid presumption which can be drawn.

In other words, if the narcotic drugs are stamped, even under the import presumption, you cannot presume that the person in whose possession the drugs are found knows that the drugs were imported contrary to law.

In other words, anybody who has a package of stamped drugs and if that’s the only evidence, you couldn’t sustain a conviction even — even though this — the — the presumption statute is — is broad enough to — on its face to either apply to stamped or unstamped narcotics.

But anytime, anybody would have stamped narcotics in their possession, you couldn’t sustain a conviction based on the presumption because they — you — the evidence would not show that they knew the — the drugs were imported contrary to law.

The presumption wouldn’t — such a presumption wouldn’t be rational, there wouldn’t be a — a rational connection between the presumption and the fact proved.

And in that regard, I refer to the Tot case where this Court said, it is not permissible to shift the burden by arbitrarily making one fact which has no relevance of guilt to the offense, the occasion of casting on the defendant the obligation of exculpation.In other words, the — both presumptions are only applicable if the package is unstamped.

Now, under these circumstances, since the presumptions are alike, since the evidence is the same to permit double punishment, is to permit punishing the same thing by placing different labels on the same act.

Earl Warren:

Mr. Murphy.

John L. Murphy:

Mr. Chief Justice, Associate Justices, may it please the Court.

In this case, the petitioner was convicted of two offenses under the narcotics laws.

The offenses grew out of a single transaction which occurred on the morning of February 8th, 1956.

On that morning, the petitioner and two other people, another man and a woman, were in a room in St. Louis, Missouri and two officers of the St. Louis Police Department observed them through the window doing what is known in the trade as capping narcotics.

The petitioner was clearly observed by at least one of these officers.

Hugo L. Black:

Doing what?

John L. Murphy:

Capping narcotics.

They had the bulk narcotics spread out on a mirror upon a bed in the room and they were engaged in placing these bulk narcotics into capsules for distribution, sale.

Felix Frankfurter:

What — was the mirror — is — is that before a mirror?

Is that — is that relevant —

John L. Murphy:

It was —

Felix Frankfurter:

— to the transaction?

John L. Murphy:

No, Your Honor, the — the —

Felix Frankfurter:

(Voice Overlap) —

John L. Murphy:

— gist of the transaction is possession of — of the drug.

Felix Frankfurter:

Yes, all right.

No, no, but I just wondered because you said in front of a mirror.

John L. Murphy:

It was upon a mirror.

Felix Frankfurter:

Oh.

John L. Murphy:

It was — they were using the mirror simply —

Felix Frankfurter:

I suppose —

John L. Murphy:

— as a glass.

Felix Frankfurter:

All right.

John L. Murphy:

The officers not immediately being able to gain entrance to the room after announcing their identity broke into the room, but by that time the occupants had departed via the window.

Subsequently, the petitioner was arrested or at least he — fighting out that he — he was identified and — and could be easily apprehended, he gave himself up.

Now, he was charged in an indictment containing two counts.

The first count was laid under Section 4704 (a) of the Internal Revenue Code which is set forth in our brief, of course, and that section provides that it shall be unlawful for any person to purchase, sell, dispense or distribute, narcotic drugs except in the original stamp package or from the original stamp package and the absence of appropriate tax paid stamps from narcotic drugs shall be prima facie evidence of a violation of this section by the person in whose possession the same may be found.

The second count was laid upon a violation of Section 174 of Title 21, which is a part of the Narcotic Drugs Export Import Act and that prohibits or provides that 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, buys, sells, or in any manner facilitates the transportation, concealment or sale of any such narcotic drug after being imported or brought in knowing the same to have been imported contrary to law, or conspires to commit any such acts in violation of the laws of the United States, shall be fined and so forth.

For a second offense, which is not relevant here, Section 174 contains a presumption which is set forth on Page 4 of our brief whenever on trial for a violation of this subsection, the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.

Now the defendant in this case was sentenced under the first count to a term of five years imprisonment.

Hugo L. Black:

I didn’t quite get from you, what was he charged with under the first count, sale or purchase?

John L. Murphy:

Purchase.

Sir, I am sorry, I don’t think I mentioned that.

Hugo L. Black:

In purchase.

John L. Murphy:

Purchase of 224 grains of heroin.

Hugo L. Black:

Purchase knowing it to have been what?

John L. Murphy:

Not in or from the original stamped package.

Hugo L. Black:

Not in or from the original.

John L. Murphy:

That is correct.

And in the second count he was charged with receiving and concealing and facilitating the receipt and concealment of the same drug, the same quantity, 224 grains.

Earl Warren:

That which he bought as you charge him with in the first count?

John L. Murphy:

That is correct.

William J. Brennan, Jr.:

Out of the evidence filed though to anything except the issue of dispossession of it as I recall he pleaded an alibi, did he not?

John L. Murphy:

His defense was alibi, yes.

He claimed that he was not present in the room on that occasion.

William J. Brennan, Jr.:

Well, now was there — except for the testimony that this substance was on the mirror, was there any other testimony that related specifically to the heroin?

John L. Murphy:

No, Mr. Justice Brennan, there was not — the Government’s case was founded upon the presumption.

William J. Brennan, Jr.:

On the presumption so that except for proof then of possession these convictions stand, both of them, upon the presumption that’s drawn from his failure take the stand and explain and so forth?

John L. Murphy:

That is correct.

(Inaudible)

John L. Murphy:

No, the sole evidence related to the observation of the offices of the defendant in this room with the narcotics.

There was no other evidence.

Earl Warren:

Well, is the — is the presumption broad enough to include purchase?

John L. Murphy:

Under Section 4704 yes.

And — and also under Section 174, which prohibits buying, the presumption —

Earl Warren:

Well, I know but —

John L. Murphy:

— the — the presumption —

Earl Warren:

— but there’s no evidence of — here of buying.

Is the — is the presumption broad enough to carry the presumption that he bought it instead of just possessing it, or having found it or having been given to him or something else?

John L. Murphy:

Under Section 174, the presumption provides that whenever on trial for a violation of this subsection, the defendant is shown, to have had possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession.

Earl Warren:

The conviction of possession?

John L. Murphy:

Conviction of all of the elements.

Earl Warren:

Does it say that?

John L. Murphy:

It just says, “Authorize conviction.”

Hugo L. Black:

Possession is enough to convict the purchase, sale and what else?

Does is mention?

John L. Murphy:

The statute prohibits buying, selling, receiving, concealing or in any manner facilitating the transportation, concealment, or sale of any such narcotic drugs.

Hugo L. Black:

So, they might have picked out sale instead of purchase, or they picked up concealment instead of purchase and had —

John L. Murphy:

Well, in this case they picked out receive and conceal and facilitate the receipt and concealment.

William J. Brennan, Jr.:

Mr. Murphy, am I — am I correct that in Gore there was an affirmative evidence of a sale, was there not?

John L. Murphy:

Yes, there was.

William J. Brennan, Jr.:

So, the conviction then on this is, are we dealing now with 174, 4704 right?

John L. Murphy:

We are dealing with both of them in this case.

William J. Brennan, Jr.:

With both of them.

So, that there was at least affirmative evidence of a sale by Gore.

John L. Murphy:

That is correct.

William J. Brennan, Jr.:

And in this case, I want to be clear about this.

William J. Brennan, Jr.:

Here we have absolutely nothing except evidence from which possession was proved.

John L. Murphy:

That is only fact which differentiates this case from Gore.

Felix Frankfurter:

In the Government’s position — this — I’m not now saying it should be sustained, but is this the Government’s position that the statute practically draws, once possession is proved, the burden of — of explaining away any of the alternative condemnations of the statute upon the defendant?

The statute does so and this Court in several cases has sustained that presumption.

Is that the Government’s position?

John L. Murphy:

That is exactly the Government’s —

Felix Frankfurter:

To show —

John L. Murphy:

— position.

Felix Frankfurter:

— that’s all there’s in this case?

John L. Murphy:

Yes and — and, of course, in the Casey case this following language was stated.

“In dealing with a poison not commonly used except upon a doctor’s prescription easily proved, or for a debauch only possible by a breach of law, it seems reasonable to call on a person possessing it in a form that warrants suspicion to show that he obtained it in a mode permitted by the law.”

So the — the burden is upon the defendant once the Government proves that he had possession of the drug under Section 174 and under 4704 that he had possession of the drug and that they did not contain appropriate tax paid stamps.

The Government may call upon the defendant to explain his possession.

This is a — a presumption which has been declared to be reasonably related to the elements of the offense.

Hugo L. Black:

Would your case be any different if you had, had counts for — had convicted him for purchasing on the presumption, selling on the presumption, dispensing on the presumption and distributing on the presumption under Section 4704?

John L. Murphy:

Yes, it would Mr. Justice Black.

Hugo L. Black:

What would be the —

John L. Murphy:

We would not, we would not there contend solely upon proof arising out of the presumption that he had committed several different offenses.

The — we could in an appropriate case charge a person with purchasing and with selling and with distributing, if we had separate evidence to prove each of those offenses, because we say that Congress defined several different offenses in each of these statutes.

But when it comes to relying upon the presumption if we must do that then it’s only reasonable to say that the presumption can only be prima facie evidence of a violation of the statute, not of each element of the statute.

Hugo L. Black:

Why, why would it exhaust itself that way?

John L. Murphy:

Well I think it’s due to the language used in these presumptions, “Shall be deemed sufficient evidence to authorize conviction.”

They must mean conviction of the statute.

Hugo L. Black:

That’s right, but they have — the statute makes sale, purchase, dispense or there’s distribution about it.

John L. Murphy:

Well, I think —

Hugo L. Black:

There are four — four separate things.

John L. Murphy:

There’d certainly room for interpretation there, Mr. Justice Black but insofar as we have —

I — I like your interpretation but I was trying to see what — on what logic it could be based.

John L. Murphy:

Well, we base it on the logic that the presumption is prima facie evidence of the violation of these statutes, not of each element.

And I — I have no doubt that this Court would in such a case apply the rule of lenity to construe that presumption is authorizing only one conviction in that circumstance.

John L. Murphy:

Now in the — the Yancey case we have the situation where the defendant was convicted of two crimes under the single statute.

But there we relied upon the presumption for proof of the purchase and we relied upon explicit testimony for proof of the sale.

So we had two distinct violations proved by distinct evidence.

William J. Brennan, Jr.:

Well, now let — let me see if I follow that.

You mean that was a case I gather, I know we’ve had it there, but I forgot the details, was that like —

John L. Murphy:

It was on —

William J. Brennan, Jr.:

— Gore?

John L. Murphy:

— petition now which has not been acted on.

William J. Brennan, Jr.:

Was that like — was that like Gore in the sense that there was affirmative evidence of a sale, is that right?

John L. Murphy:

That is correct.

William J. Brennan, Jr.:

And on that, on the authority of that affirmative evidence he didn’t rely on the presumption and you suggest the conviction may be sustained for the sale under the statute in that way, right?

John L. Murphy:

That is correct.

William J. Brennan, Jr.:

But at the same time you take the same evidence of a sale and you say that that justifies use of the presumption to establish a purchase?

John L. Murphy:

The proof of the possession of the drug.

William J. Brennan, Jr.:

Would —

John L. Murphy:

The possession —

William J. Brennan, Jr.:

Now let me use —

John L. Murphy:

— may be incidental to the sale.

(Voice Overlap) —

William J. Brennan, Jr.:

Yes, but your affirmative testimony was that he sold it, not that he bought it.

John L. Murphy:

That is correct.

William J. Brennan, Jr.:

Is that so?

And on the strength of that affirmative testimony you support the conviction for sale.

John L. Murphy:

That is correct.

William J. Brennan, Jr.:

And now you turn around and say nevertheless that because the sale involved possession that also entitles you to a conviction for purchase, although your affirmative testimony is not that he purchased but that he sold, is that it?

John L. Murphy:

That is correct.

We rely for one offense upon the presumption and the direct explicit testimony for the other.

(Inaudible)

John L. Murphy:

That is correct, Mr. Justice.

Therefore in order to prove a case under 4704, you have to prove possession and you have —

John L. Murphy:

And you want —

— to prove also absence of standards.

John L. Murphy:

That’s true.

(Inaudible) the raise to the presumption —

John L. Murphy:

That is correct.

— whereas under your (Inaudible) under 174 all you have to do is prove possession.

John L. Murphy:

That is correct.

So that you do have to prove more in the first case than you do in the second.

John L. Murphy:

That is our position.

Felix Frankfurter:

Indeed, the (Inaudible) of that penalization by Congress because they use that method, they thought that was a way of — of discouraging these people.

They use the physical power as a means of — of penalizing conduct is that right?

John L. Murphy:

That is correct, Mr. Justice Frankfurter.

Felix Frankfurter:

And that’s where they have to sustain in the cases,

John L. Murphy:

Is that —

Felix Frankfurter:

Otherwise, it’s a state offense.

Otherwise it might be just, otherwise (Voice Overlap) transaction.

John L. Murphy:

It’s the beyond the power (Voice Overlap) —

Felix Frankfurter:

This has nothing to do with commerce, has it?

John L. Murphy:

Nothing, sir, nothing.

Felix Frankfurter:

If there’s no stamp, if it wasn’t for the physical aspect under which this Court sustained that legislation, it would be a local offense and not a federal offense.

John L. Murphy:

That is correct.

Felix Frankfurter:

So that the — the stamp business is of the essence of the crime.

Hugo L. Black:

May I ask in that regard Mr. Murphy, did I — counsel argued yesterday did someone suggest to us that there are certain narcotics which could never lawfully have to be stamped.

John L. Murphy:

That is correct and heroin is one of them.

William J. Brennan, Jr.:

That’s one here.

John L. Murphy:

Yes that is completely

William J. Brennan, Jr.:

So that —

John L. Murphy:

— off the hook.

William J. Brennan, Jr.:

Well, now suppose, somehow rather you had a package of heroin with — with a stamp on it, secured it somehow or the other, would that obligate a conviction under this statute for unstamped when the stamp is not lawfully —

John L. Murphy:

Well, the stamp would —

William J. Brennan, Jr.:

(Voice Overlap) —

John L. Murphy:

— obviously be spurious in that case (Voice Overlap) —

William J. Brennan, Jr.:

Well, it might be of a spurious —

John L. Murphy:

(Voice Overlap) —

William J. Brennan, Jr.:

— stamp with it — but you could not lawfully have as I understand it, a stamped package of heroin.

John L. Murphy:

That is correct.

William J. Brennan, Jr.:

So that even if it had the stamp on it, you could have a conviction for possession of unstamped narcotics.

John L. Murphy:

Yes.

William J. Brennan, Jr.:

Well then what’s the significance of the so-called ingredient of a stamp in the case of heroin?

John L. Murphy:

Well, in the case of heroin there is no real significance, no practical significance.

William J. Brennan, Jr.:

And it doesn’t go or it doesn’t — it’s not an ingredient then to proof of the crime at all, is it?

John L. Murphy:

Well, that’s the — the fact that heroin can’t be stamped is merely incidental.

The — the petitioner has placed himself in the position of possessing heroin rather than some other drug which is —

William J. Brennan, Jr.:

Yes, and there’s a — if I understand you now, if he has a package of heroin and it does bear a stamp, he may, nevertheless, be convicted under this 4704 was it —

John L. Murphy:

Well, I would assume —

William J. Brennan, Jr.:

In — in relation to tax paid stamps, you could still be convicted under that section?

John L. Murphy:

Now, this — this is an impossible situation, of course, but — but assuming that the defendant attempted to show that his possession —

William J. Brennan, Jr.:

And are you —

John L. Murphy:

Would you —

William J. Brennan, Jr.:

— what you have, what the Government finds on it, on his person is a package of heroin and the package happens to bear a stamp.

And that’s what you offer in evidence.

Now, as I understood what you’ve just answered me, he could be convicted for possessing heroin in an unstamped package because lawfully he could not have a stamped package of heroin.

John L. Murphy:

Well, it wouldn’t be because he had it in an unstamped package precisely.

It — it would be because we would show that the stamp was not lawfully put on there.

That the — the stamp is merely evidence of the payment of the tax if he has not paid the tax on that drug then he couldn’t lawfully have paid any tax on heroin, then couldn’t have a lawful tax stamp on there.

And we could show that as part of our case.

William J. Brennan, Jr.:

Well, you wouldn’t have to show any evidence would you?

John L. Murphy:

It would —

William J. Brennan, Jr.:

Wouldn’t that be just a matter of law once you’ve established it’s heroin, wouldn’t the judge have to say the presence of the stamp on the package’s meaning?

John L. Murphy:

Yes, I would presume that, that would be a fair —

William J. Brennan, Jr.:

That’s not a — that’s not a matter of evidence now, is it?

Felix Frankfurter:

Is possession of heroin in and of itself a federal offense?

John L. Murphy:

There —

Felix Frankfurter:

It says John Jones in New York or City of Binghamton in New York was arrested for possessing heroin.

John L. Murphy:

At the time of this case, it was not.

Under the Narcotic Control Act of 1956, the provision is now codified, I think at 18 U.S.C. 1402, heroin is outlawed and possession of it cannot be lawful, but there is no penalty for it.

Felix Frankfurter:

Well I mean how can — what — what is the basis, what is the constitutional justification for a law by Congress that the possession of a drug for which no physical responsibility, which involve no physical responsibility of a crime?

John L. Murphy:

They —

Felix Frankfurter:

Must it be a — is it —

John L. Murphy:

Upon the commerce power.

Felix Frankfurter:

— in interstate commerce?

John L. Murphy:

(Voice Overlap)

Felix Frankfurter:

Or if it’s imported, if there’s a presumption that if you’ve got a drug which only could be imported, I can understand that, is that it?

John L. Murphy:

That’s only — that’s the only way you can obtain heroin.

There —

Felix Frankfurter:

But —

John L. Murphy:

— is no legal way —

Felix Frankfurter:

Very well —

John L. Murphy:

— in which heroin can be manufactured in this country.

Felix Frankfurter:

So, therefore — therefore, there’s a presumption that if you’re possessing it, it — it was imported.

John L. Murphy:

That is correct.

Felix Frankfurter:

And since it was imported, it comes under the foreign commerce provision of the Constitution.

And all the stamp in regard to heroin has nothing to do with it.

John L. Murphy:

Not under that section, no sir, but the Section 4704 is predicated under the revenue power.

Felix Frankfurter:

Well, but — but that doesn’t apply, if there’s no revenue power exerted against heroin.

John L. Murphy:

Of course, Congress could also tax that which it also prohibits.

Felix Frankfurter:

Certainly, and if Congress acts —

John L. Murphy:

It’s still on heroin.

Felix Frankfurter:

Congress gets a lot of money or gets some money out of — from illegal sources.

I suppose the secretary of treasury has no conscience qualms so that —

John L. Murphy:

And I — I want to make it clear that — that it’s a violation under the stamp tax provision to purchase heroin, not even from the original stamped package, even though heroin maybe completely illegal.

That is perfectly permissible.

What Congress — to — to tax that which it also prohibits.

Hugo L. Black:

Yes, but it’s not permissible for anyone to possess heroin in this country.

John L. Murphy:

No, Your Honor it is not.

Now this case with this rather fine —

If fact when I go to a doctor and he prescribes heroin for me, I suppose his package would have a stamp on it wouldn’t it?

John L. Murphy:

He could not —

(Voice Overlap) —

John L. Murphy:

— prescribe heroin.

What’s that?

John L. Murphy:

He could not prescribe it.

Could not prescribe it?

Can’t do it (Voice Overlap) —

John L. Murphy:

There is no legal heroin available.

No, there isn’t.

John L. Murphy:

Some of the doctors don’t like that.

Tom C. Clark:

Well, when you have these laws in this country, how do you — how you can obtain a conviction under the stamp tax, where heroin is a drug in the problem.

I can’t see —

John L. Murphy:

Congress —

Tom C. Clark:

(Voice Overlap) —

John L. Murphy:

— Congress places a tax on the manufacture or importation of all narcotic drug.

William J. Brennan, Jr.:

Including heroin?

John L. Murphy:

Including heroin, any narcotic drug, any derivative of opium, and heroin is certainly that.

Potter Stewart:

And it also absolutely prohibits the importation of heroin.

John L. Murphy:

It also prohibits the importation of opium for the purpose of manufacturing heroin.

In effect, it prohibits the importation of heroin.

No heroin can be obtained into this country.

It hasn’t been able — there has been no heroin imported for some 30 years.

Hugo L. Black:

It prohibits importation, manufacturing, processing, use, possession or anything else in connection with heroin.

John L. Murphy:

That is correct.

Now, this case, we think, is indistinguishable from Gore.

In Gore, the issue was whether one transaction, there a sale, could support three consecutive sentences.

Here the transaction involved is possession.

But there is no difference in principle between those two transactions.

William J. Brennan, Jr.:

(Inaudible) however, you didn’t have to rely on the presumption, as I understand (Inaudible) affirmative evidence of a sale.

John L. Murphy:

That is correct.

William J. Brennan, Jr.:

Here, you have affirmative evidence which is nothing but confession and you rely on the presumption of the same conviction, is that right?

John L. Murphy:

Well, in — in Gore, I — I hesitate to get back into the refinements of that case.

But we did charge under the Stamp Tax Act and I do believe that we relied in part upon the presumption in that case.

But there was a distinct evidence of sale.

There can be no question about that.

Now, petitioner’s contention is that he can’t be convicted under these two statutes because he is, in effect, being convicted under the same evidence.

And, of course, this was an issue which was raised in the Gore case.

And I would like, first of all, to set at rest a question which came up yesterday as to whether there is a distinction between the Gore case and this one, because the Gore case came up on a 2255 motion.

Gore did come up in that way but it is a fact that Gore was decided on the merits and the record was before this Court.

In the Gore brief, I think it’s at page 5.

There is a footnote which says, “The testimony appears in the certified record of the official court reporter lodged with the clerk of this Court.”

And certainly it’s incontrovertible that the Gore opinion was bottomed on the fact that a single transaction was involved.

And it tells, of course, that Congress could make a single transaction violative of three different offenses.

Now, petitioner misconstrues the same evidence rule, which is used to determine the identity or differentiation between offenses, read quickly the same evidence rule, would we want to conclude that if you use the same evidence you can convict of different offenses.

But that, in fact, is not really what the rule means.

The rule in — it is our contention, has to do with the elements of the effects.

The confusion results, of course, because the elements of the — of an — of any offense are defined usually in terms of facts.

And the cases speak about whether there is this proof of the same fact required or different facts.

And the primary evidence to prove those ultimate facts are usually very closely related, if need — indeed identical with the facts necessitating a conviction under the — the statute.

Here, of course, we are somewhat removed from the close relationship between the primary evidentiary facts and the ultimate fact which you usually find in a case, because of the application of the presumption.

But never —

William J. Brennan, Jr.:

Now, here you’re talking about ultimate facts.

I gather you mean something like purchase, sale or something —

John L. Murphy:

That is correct.

William J. Brennan, Jr.:

— that’s the ultimate fact.

John L. Murphy:

Yes.

William J. Brennan, Jr.:

Now, looking at this — or of this indictment at page 1 of the record, I gather the first count “did unlawfully purchase”, you might equally have chosen from the statute, “did unlawfully sell, did unlawfully dispense or did unlawfully distribute.”

You didn’t have to pick on “did unlawfully purchase” did you?

John L. Murphy:

We don’t normally charge a sale when we are going to rely upon the presumption.

William J. Brennan, Jr.:

Well whether you do or not, as I understood your colloquy earlier, you might as well have picked any of these ultimate facts, so-called from the statute, sell, dispense or distribute rather than purchase it.

John L. Murphy:

Yes.

Theoretically yes, but —

William J. Brennan, Jr.:

So, in — in actual fact the only evidence you had, was evidence of possession.

John L. Murphy:

Yes (Voice Overlap) —

William J. Brennan, Jr.:

And it’s — and then you say from possession flows either purchase, sale, dispense or distribute, isn’t that it?

John L. Murphy:

That is correct.

Congress —

Felix Frankfurter:

Those — suppose —

That — that is the wrong (Inaudible)

John L. Murphy:

Well, we have the — the possession under one statute alone and possession without the stamps under the other statute.

Justice Brennan is talking about 4704 and would — would you or would you not make out a case simply by proving possession, period, nothing more important (Inaudible)

John L. Murphy:

Well, I’ll have to answer that —

Isn’t that a case purchased simply by proving possession (Inaudible)

John L. Murphy:

Not under any drug.

There is a peculiar circumstance in the case of heroin that as a matter of law, you can’t purchase legally.

So that you could never have tax stamps on heroin, but that is the circumstance.

Legally, the offenses are different and you can have possession of a drug, for instance, a — a commercially manufactured drug, and it can — that possession can be violative of Section 174, while not violative of Section 4704 as —

Potter Stewart:

But with — with respect to heroin possession alone raises a presumption of the violation of — of Section 474, is it not, 4 — 4704?

John L. Murphy:

Of 174.

And if there are no tax stamps on the drugs as there cannot be —

Potter Stewart:

And there cannot be with respect to heroin.

John L. Murphy:

— then it also raises a presumption of violation of 4704, yes, but that is —

William J. Brennan, Jr.:

So all you have to prove to establish as to heroin — I just want to be clear about this, a case under 4704 (a) is what you proved here, namely, possession of powder which was heroin on a mirror.

William J. Brennan, Jr.:

That’s all you had to prove and you could have a conviction on that proof under both 4704 (a) and 174.

John L. Murphy:

Yes, because there is a legal inference that there were no stamps on the drug.

Now —

Felix Frankfurter:

Well, if there isn’t — isn’t a fastidiously accurate way of saying that if nothing more is in the case, the jury can convict, that it throws the burden of disproof if — upon the defendant and therefore it may raise a large question which presumably the cases that we’ve decided at face, namely, that this is either a violation of the Due Process Clause or the implication of other aspects of the Bill of Rights in regard to presumption of innocence —

John L. Murphy:

Yes it —

Felix Frankfurter:

— isn’t that it?

That’s a big question —

John L. Murphy:

— you just raised —

Felix Frankfurter:

— that’s raised.

John L. Murphy:

That is a — a very —

Felix Frankfurter:

And therefore —

John L. Murphy:

— important distinction.

Felix Frankfurter:

Well, that’s — that’s the real thing, that the body of legislation, the decision thus far has held that if you have possession, the nature of this animal is such that it is not violative of due process or a bad trial, or of rational connection to have the defendant explain it.

That’s essence of the business, isn’t it?

John L. Murphy:

That was the holding in the Casey case, that’s right.

Hugo L. Black:

But he couldn’t explain anything about the stamp.

John L. Murphy:

Well —

Hugo L. Black:

You said there was a legal difference, there is a legal conceptual difference, and if — but no practical difference.

Insofar as the case is concerned if he possesses heroin, he is in, under this statute or any other, he is guilty.

John L. Murphy:

That is correct.

Hugo L. Black:

Practically speaking.

John L. Murphy:

Practically —

Hugo L. Black:

Conceptually, there’s a difference.

John L. Murphy:

Oh yes, conceptually there is a vast difference.

William J. Brennan, Jr.:

Well as a matter of fact he couldn’t take the stand and no matter what he said he couldn’t act or play themselves under 4704 (a) if possession was of heroin, could he?

John L. Murphy:

No, he could not.

William J. Brennan, Jr.:

No matter — no matter how innocent his possession of it really —

John L. Murphy:

But he is the one —

William J. Brennan, Jr.:

(Voice Overlap) —

John L. Murphy:

— he is the one who has — has put himself —

Felix Frankfurter:

That’s the whole —

John L. Murphy:

— in that circumstance.

William J. Brennan, Jr.:

I know.

John L. Murphy:

And –and —

William J. Brennan, Jr.:

But he couldn’t escape — and he might escape the conviction under 174, but he couldn’t.

In other words, via explanation he might, under that section that he could not escape under 4704 (a).

Felix Frankfurter:

He could.

He might just be somebody — of — the case would arise, if he said, some of — somebody must have put this into my pocket, this is a plan, this is a perilous act.

John L. Murphy:

He can show —

Felix Frankfurter:

This is not a knowledgeable act, but it’s a perilous act.

John L. Murphy:

That would be —

Felix Frankfurter:

That’s between a non knowledgeable act and perilous act.

Hugo L. Black:

Does the statute draw that thing?

John L. Murphy:

Under Section 174, the statute says that he must know that the drug has been unlawfully imported.

Of course, the presumption sets up and supplies that element of proof.

William J. Brennan, Jr.:

What about — what about under 4704 (a) is there any — any ingredient of knowing possession, in other words he may — suppose he got to stand, “Well, I thought this was talcum powder.”

And he honestly thought it was talcum powder.

The jury chose not to acquit him on that ground.

John L. Murphy:

Well, if the jury —

William J. Brennan, Jr.:

Would the jury find the possession be enough?

John L. Murphy:

Yes.

William J. Brennan, Jr.:

But it was actual heroin.

John L. Murphy:

The jury is under no obligation to believe the defendant at all.

William J. Brennan, Jr.:

No, but he could be convicted even though he believed that it was — honestly believed it was talcum —

John L. Murphy:

Well, that would be a question of fact.

If the jury doesn’t believe him he had — he didn’t — he wasn’t ignorant.

But if the jury believes then they acquit him.

So, he can’t contend that he was ignorant and —

William J. Brennan, Jr.:

Well, there (Voice Overlap) —

John L. Murphy:

(Voice Overlap) —

William J. Brennan, Jr.:

Is there any language in the statute which makes it necessary that he know he has heroin in his possession?

John L. Murphy:

No, there is not.

Not under 174 to my knowledge —

Felix Frankfurter:

You’ve held the contrary (Voice Overlap) —

John L. Murphy:

I think —

Felix Frankfurter:

just might to know.

John L. Murphy:

I think that it has been held that is strictly a malum prohibitum and — and —

Felix Frankfurter:

Well, that’s the Dotterweich case.

That’s Balint.

John L. Murphy:

Yes.

Earl Warren:

Mr. Glazer, you may conclude.

Sidney M. Glazer:

The Morissette case also refers to that case in dealing with the whole issue of intent —

Felix Frankfurter:

Yes.

Sidney M. Glazer:

— and says there is no intent required in these narcotic drug cases.

Felix Frankfurter:

Yes.

I mean he put — it — it treats these cases practically, am I right or wrong about this?

It treats these cases.

It puts them to one side as an exception.

There’s a rule laid down in the Morissette case which would be the common law and — and I hope they accept the due process point.

Sidney M. Glazer:

Yes, in the Morissette case, the — the Court held that even though the — a — a statute dealing with conversion of government property said — mentioned nothing about intent, intent applied and in dicta referred to the other case —

Felix Frankfurter:

Well, that was the whole argument in Balint, wasn’t it?

Sidney M. Glazer:

Yes.

Felix Frankfurter:

That was the whole argument in Devine is otherwise, even though it didn’t say it, the usual presumption of mens rea applied, and all those cases go the other way, so that the real issue is this big issue which I try to say, isn’t that true?

Sidney M. Glazer:

I would think so.

Referring to the Gore case on page 4 of the Government’s brief, the Government themselves pointed out that the evidence showed that Gore — Gore, after selling to a narcotics agent, delivered the — the narcotics to an agent in an unstamped package without use of any order form, so there is a big factual distinction between Gore —

William J. Brennan, Jr.:

In — in other words, the affirmative evidence of all those elements of the case.

Sidney M. Glazer:

Yes, Your Honor.

Now, in reference to the Section 174, although it says possession of drugs, stamped or unstamped, it makes no difference.

If, for example, by mistake, the Government stamped a package of heroin instead of some other drugs and somebody buy — in — I don’t know about — how but theoretically, obtained possession of them, they couldn’t be convicted of — of violating 174 even though that presumption applies to possession of both stamped and unstamped drugs because if there were valid stamps on the drugs, a man could not knowingly know if the drugs were illegally imported.

In other words, the presumption would be contrary to the evidence and therefore that part of the preemption is meaningless.

Sidney M. Glazer:

The only part of that 174 presumption to have any meaning is the — that has to mean unstamped drugs.

Hugo L. Black:

I’ve wondered if you didn’t answer one question in the little paragraph.

Sidney M. Glazer:

Maybe I did, Your Honor.

Hugo L. Black:

Am I to understand from you that you think the only question here is whether under due process, this presumption can exist?

I thought you had the question that as to whether Congress, number (1) had or number (2) could prosecute one man twice for having possession of a drug?

Sidney M. Glazer:

That was — maybe I did answer the question too fast.

That was another issue in the case.

In other words, initially, in 1909, Congress imposed this import tax and then there came a decision.

Then the Harrison Act which dealt with the order form and — and registration of narcotics drugs was enacted in 1914.

Then, subsequently, the Harrison Act, an individual was found in possession of drugs and the Court held that because he was a person who could not register under any circumstances, he could not be found guilty of having possession of the drugs.

As a result, Congress enacted the Stamp Act.

So, there is a — a — some question of congressional intent whether Congress meant for a conviction for — for double punishment to be applicable if the conviction rests on both presumptions.

I think both — both things are in the case.

There’s a question of — of due process, whether or not it’s — it’s fair for this presumption to apply to both situations, I think it like it may be reasonable to shift the burden to the defendant for one situation, whereas, it may not be reasonable to do it for both.

In other words, there is a certain — I think there is a certain inconsistency perhaps, in many of these situations where a — they shift the burden on both counts.

It’s one thing to say that the defendant should have to explain his possession.It’s another thing to — to punish him twice for situations which may be inconsistent.

And — and it seems to me that it may be that while Congress meant the shift of burden to him once, they really didn’t mean to shift the burden to him twice.

In other words, they sort of meant that if he can’t explain, he should face punishment, but that doesn’t mean that they intended that he should be punished twice.

It’s a situation where I think the rule of lenity should apply.

Hugo L. Black:

You are now — that — but you are not — I agree that (Inaudible) due process question that lead to the presumption you share, but you are not saying that’s the only question (Voice Overlap) —

Sidney M. Glazer:

No, no — no, Your Honor.