Harris v. United States

RESPONDENT:United States
LOCATION:S.S. Guadalupe

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 359 US 19 (1959)
ARGUED: Jan 13, 1959 / Jan 14, 1959
DECIDED: Mar 02, 1959

Facts of the case


  • Oral Argument – January 14, 1959
  • Audio Transcription for Oral Argument – January 14, 1959 in Harris v. United States

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

    Earl Warren:

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

    Mr. Glazer.

    Sidney M. Glazer:

    May it please the Court.

    This is also a multiple punishment narcotic case.

    Unlike Blockburger, Gore and Greene, this case does not involve any sale.

    Also unlike Blockburger, Gore and Greene, this case does not involve the order form statute.

    The only statutes involved in this case are the Stamp Act requirement statute and the illegal import statute.

    The question, primary question for consideration is whether under a charge of purchasing narcotic drugs from an unstamped package, and receiving and concealing the same drugs, known that the drugs have been illegally imported, a defendant may be given consecutive sentences under proof of mere possession and under instructions which do not try to distinguish the elements of one statute from the elements in the other statute.

    Now, Section 4704 of Title 26 not only makes sale an offense, it makes purchase, sale, dispensing and distributing drugs, except in original stamped packages, a crime and that statute has a presumption which provides that the absence of stamps is prima facie evidence of a violation by the person in whose possession the narcotic drug may be found.

    The other statute involved is the import statute which makes it a crime to either import or receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment or sale of narcotic drugs after import knowing that the drugs have been illegally imported.

    Again, there is a presumption which provides that possession of the narcotic drugs shall be sufficient evidence to constitute a — a conviction of a violation of this statute.

    Now, in this particular case, the defendant received the maximum sentence in each — on each of the two counts, or at that — at that time, the maximum sentence was five years and so he received a consecutive sentence of 10 years.

    Now, the Government’s case, the evidence in the Government’s case show that there were two police officers standing on cans peered into windows of an apartment and they saw three individuals.

    One police officer testified that he saw the two codefendants, not the — not the petitioner handling some powder.

    The other officer testified that the — he saw the defendant with something in his hand, but he did know what it was.

    The officers announced who they were and all three occupants of the room fled and the officers found filled and unfilled capsules of narcotic drugs.

    They found some capsules in a woman’s coat.

    They found narcotic power on the mirror and –and they also found a needle and syringe.

    Now, in this particular case, the defense in this case, this petitioner was in alibi that he wasn’t there at the time and place the crime was committed.

    Somebody else testified that he, not petitioner was in the room and this alibi naturally was rejected by the jury.

    Now, the instructions are very important in this case and they are set out on — the pertinent instructions are set out on page 7, 8 and 9 of our brief.

    In this particular case, the Court instructed the jury by first reading the statutes involved.

    They next instructed the jury by reading the presumptions.

    He then read each count of the indictment.

    Then the Court immediately after reading each count of the indictment said, “So, the question under each count of this indictment resolves down to whether or not the defendants or either of them did possess this narcotic drug on the 8th day of February, of this year, out there in the room at 4567 McMillan.”

    Then the Court stated that under Count 1 that possession was prima facie evidence and significantly, the Court said, this is on page 8 of our brief, “So if you find and believe from all the evidence beyond a reasonable doubt that the defendants or either of them possessed the narcotics mentioned in Count 1 and that the said narcotics did not bear the required internal revenue tax stamps, then you will find the defendants or either of them guilty as charged in Count 1.”

    Then the Court gave a similar instruction under — for Count 2, the difference being instead of saying that you will find the defendants guilty, the Court said that possession would authorize — would authorize the conviction of the defendants under Count 2.

    Then the Court went on to say that unless you find that the defendants had possession, that you must acquit the defendants.

    Now, the Court of Appeals affirmed on a theory that the single act of possession justified cumulative sentence — sentences and that the Court instructed the — trial court instructed the jury as to the necessary elements required for a — for a conviction.

    Now, the first problem involved is, what did the Blockburger and Gore cases hold?

    Sidney M. Glazer:

    In Blockburger, there was a sale involving — and Blockburger was charged under the order form statute and the stamp package statute.

    The order forms statute doesn’t have any presumption, so Blockburger did not have that issue as to whether or not you could get cumulative punishments from this substantially similar presumption.

    The Gore case, one count involved the order form, that’s not — that statute isn’t involved in this case.

    The other two counts in Gore, Gore was charged with the purchase, sale and distribution of narcotic drugs from unstamped package in one of the other counts, and in the last count he was charged with transport — transporting and concealing illegally imported drugs.

    The evidence in the Gore case show that Gore delivered narcotic drugs to a government agent in an unstamped package without any of the use of any order form.

    So, the Gore case really didn’t involve the question whether or not there was a conviction on both presumptions.

    Now, these presumptions have been said to place on the defendant, the duty of going forward with the evidence and their vice consist in the fact that different offenses may be presumed in an essence from the same fact.

    In other words should you find — if the jury finds that the defendant had possession of the drugs, then the burden of furnishing an explanation shifts to the defendant and if he doesn’t furnish a satisfactory explanation, he can receive, according to the court below, cumulative sentences.

    Now, the Blockburger test which was referred to in the preceding argument, we don’t believe, would require the imposition of cumulative sentences.

    And under that test, the test is whether each provision requires proofs — proof of — of an additional fact which the other does not.

    Well, here, Congress itself has said, by these presumption statutes that different proof isn’t required.

    We don’t have a situation where Congress hasn’t spoken as to what the proof is, but here Congress in the very statute, in the very statutes in which it creates the crime, sets out what proof.

    In effect, Congress has made possession the crime.

    Supposing that in the (Inaudible)

    Sidney M. Glazer:

    No, I don’t think — on — if all they put in proof, whether there was an unstamped package, I don’t —

    They put in proof of possession and proof of unstamped package.

    Sidney M. Glazer:

    Well, if — if all the — if the extra proof was an unstamped package, I don’t think there should be a multiple sentence for this reason.

    In — the original narcotics statute was the import statute.

    That was in 1909 and that has a — had a presumption.

    The next statute was the Harrison Act and originally, the Harrison — Harrison Act, that imposed the order form statute and there — there was also a registration requirement.

    Now, there was a decision of the Supreme Court which held that the 1914 Harrison Act registration requirement —

    But you’re going all over Gore again.

    We’ve disposed with all that in court.

    Sidney M. Glazer:

    No, Your Honor, I’m — I don’t mean to go back over Gore.

    I — I just want to refer to the reason for enacting the presumption in the Stamp Act.

    The reason for enacting that presumption in the Stamp Act was to be sure the possessor should be punished.

    Also as a matter of fact it’s impossible for anybody in one sense, the tax is imposed upon all narcotics drugs, and tax has to be evidenced by the stamp.

    And it’s impossible to import any — any narcotic drugs for the purpose of making heroin out of it, so from one point of view all narcotic drugs, all heroin, at least, would be unstamped.

    Now, I think you have a different situation if — if there was a purchase involved in — in the two counts, if one count had a — if — if there was an — if evidence — there was actual evidence of a purchase, then it may be that you could impose consecutive sentences, because the — there would be a little difference between the two charges.

    In other words, the evidence would be a little different, but in the absence of — of some evidence of a — of a purchase, I don’t think this — this whole business of presumptions set forth in time, all are — are based on the question whether or not something logically followed.

    Sidney M. Glazer:

    These presumptions and the whole theory of shifting the burden, the prayer or the reason for that rule is to convict a defendant where it’s very difficult or impossible for the Government to obtain the necessary evidence.

    Now, I think it may be reasonable to assume that a person in possession has violated one — one narcotic statute.

    But just because a man has possession doesn’t necessarily mean he was a purchaser.

    For example, in this particular case, there were three people in the room.

    Now, it all — it may be that one person purchased the narcotic drugs and the other two didn’t come into the picture until after the purchase.

    In other words, they didn’t aid and abet the purchase, but their — but their function may have been to assist in the disposition of the narcotic drug.

    So, actually, the presumption, as applied in that case, in effect, is they are convicting — convicting a man of — of an extra crime.

    A crime which doesn’t — which I don’t think logically follows and — and which, I don’t see the reason when you’re basing this thing on a presumption to have two sort of substantially similar presumptions, when the whole purpose of the presumption is to apply to a situation where you do not know what the wrong is and you say, “Well, the man has done some wrong in connection with the narcotic law.

    If he can’t come forward with — with an explanation he should be punished.

    William J. Brennan, Jr.:

    Mr. Glazer, I — I gather your argument is that you (Inaudible)

    Sidney M. Glazer:

    Well, in Gore, as I read the majority opinion, the — the — there was no issue concerning how the conviction was brought about.

    In other words, the only issue was whether under a specific indictment the man could receive these consecutive sentences.

    Also in Gore, the evidence actually did show, and it’s pointed out in the Government’s brief on page 4 in the Gore case, that the man did sell narcotic drugs, brought, sell and deliver narcotic drugs to a federal agent in an unstamped package.

    In other words, at the time of the sale, there was an actual delivery of narcotic drug in an unstamped package.

    Potter Stewart:

    Mr. Glazer, forgive me for my ignorance, but did Gore come here on Section 2255?

    Sidney M. Glazer:

    Yes, Gore was a Section 2255.

    Potter Stewart:

    On direct appeal.

    Sidney M. Glazer:

    And this was a direct appeal from the conviction.

    Hugo L. Black:

    If you have — what were your objections made to this?

    What were the objections made to this — this charge?

    Sidney M. Glazer:

    Your Honor, we were not trial counsel and —

    Hugo L. Black:

    Were there any?

    Sidney M. Glazer:

    There — there were none except that one of the trial — one of the lawyers said, he accepted every charge not given by instruction not requested by the defendant.

    But the record doesn’t show what that consisted of.

    There were —

    Hugo L. Black:

    What is the difference in the discharge as guilty and a charge with contempt that told the jury if you believe this man is guilty of possessing this drug, you convict him of possessing an unstamped drug.

    And in fact, there’s a general charge if you believe he is guilty of possessing this drug, he is guilty of possessing an unstamped drug.

    And if you believe he is guilty of possessing the drug, you — he is guilty of the other charge.

    Is any — and it seems to me like if his charge as given, I don’t know where that objection was made.

    In fact, the amount is the equivalent of the charge that he must be convicted if they found he possessed the drug.

    Sidney M. Glazer:

    The — that’s our contention, Your Honor.

    Felix Frankfurter:

    But — but doesn’t that leave out of account that while he did say that in the beginning, didn’t Judge Harper, in this rather lengthy charge, afterward particularize?

    He not only quoted the statute, but he quoted what the different needs of the two provisions were in great detail and —

    Sidney M. Glazer:

    Well —

    Felix Frankfurter:

    — he did what federal judges do not always do, but I wish they would, give the contentions of both the plaintiff — of the Government and of the defendants?

    Sidney M. Glazer:

    He did that, Your —

    Felix Frankfurter:

    Isn’t that — isn’t that true?

    Isn’t that all true?

    Sidney M. Glazer:

    That it — that is true, Your Honor, but significantly, three places, number one, he said that the question resolves down whether or not defendant had possession.

    Felix Frankfurter:

    That — that was his opening — general way —

    Sidney M. Glazer:


    Felix Frankfurter:

    — and that’s what in a human way got down to.

    Sidney M. Glazer:

    Yes, sir.

    Felix Frankfurter:

    Because if he didn’t have the possession, he couldn’t have been guilty either of clandestinely importing it or of selling without a license — without a stamp.

    Sidney M. Glazer:

    And — and that —

    Felix Frankfurter:

    That is just the colloquial way of talking to the jury, so that they could understand it, instead of talking legal jargon.

    Sidney M. Glazer:

    Well, that —


    Sidney M. Glazer:


    That he sought to do.

    Sidney M. Glazer:

    I — I could judge.

    And I think Judge Harper tries to be fair, but the end result of this thing, here you have two — two presumptions.

    They are substantially similar if there is some difference between them.

    If you do not — if you do not clearly and distinctly tell the jury that it’s not enough to just find possession, then you really do is you just lump, merge the two crimes, you lump them together and there becomes no difference at all.

    Felix Frankfurter:

    I would be you with if he’d stopped — if he — if he said, “no more or well done”, what he said on page 107.

    I would be with you.

    Sidney M. Glazer:

    Well —

    Felix Frankfurter:

    But — but then he stated, it seems to me that was articulating, he was talking to these laymen about what was the real knob of that issue.

    If this fellow didn’t possess the narcotics, then he could not be guilty of either one of the two offenses.

    Sidney M. Glazer:

    Then on page 111 Your Honor, he repeats, he says, “So if you find and believe from all the evidence beyond a reasonable doubt, that the defendants or either of them possessed the narcotics mentioned in Count 1, and he — and that the said narcotics did not bear the required internal revenue tax stamps, then you will find the defendants or either of them guilty as charged in Count 1.”

    Sidney M. Glazer:

    And now, then further down on page 111 he says, “The court instructs the jury that unless you find that the defendants or either of them had possession of the narcotics mentioned, and unless you find that such narcotics were under the dominion and control, then you must acquit the defendants or either of them who did not have —

    Felix Frankfurter:

    But before he said that, he also said the things on page 110 and particularized the difference between Count 1 and Count 2, the contentions of the prosecution and then with great particularity, he gave the contentions of the defendant.

    And I agree with you that possibly close — closely attuned counsel would have said, “Will Your Honor make it clear that merely possession isn’t enough in the case at all?

    But to me, you have read in my life and have read a great many charges, this seems to be uncommonly colloquial in illuminating the charge.

    Both charges seemed to me not very guiding, as I read them.

    Whereas this uses more words than I should use, I hope, but it — it does more than just give the generality.

    Sidney M. Glazer:

    Well, in — in any event, the — the evidence only did show possession and there is really — there is no real distinction if you look at this Blockburger rule which says whether or not this — the test — whether one transaction shall be the basis of — of double punishment or not is whether or not they — the — each offense requires an element which the other one doesn’t, an additional fact, here in effect —

    Earl Warren:

    We’ll recess now, Mr. —