Leary v. United States

RESPONDENT: United States
LOCATION: Circuit Court of Mobile County

DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 395 US 6 (1969)
ARGUED: Dec 11, 1968 / Dec 12, 1968
DECIDED: May 19, 1969

Facts of the case


Media for Leary v. United States

Audio Transcription for Oral Argument - December 12, 1968 in Leary v. United States

Audio Transcription for Oral Argument - December 11, 1968 in Leary v. United States

Earl Warren:

Number 65, Timothy F. Leary, petitioner versus United States.

Mr. Haft.

Robert J. Haft:

Mr. Chief Justice, may it please the Court.

This matter is before the Court on writ of certiorari to the Court of Appeals to the Fifth Circuit, involves two offenses relating to the possession of one-half ounce of marihuana.

The first defense was a conviction under the Marihuana Tax Act and the second was a conviction under the importation statute, Section 176a of Title 21.

The two questions presented to the Court are first, the -- whether the Fifth Amendment privilege is a defense to a prosecution under the Marihuana Tax Act, and the second question is the constitutionality under the Due Process Clause of the presumption in the importation statutes which presumes importation in fact of marihuana and knowledge in fact by the defendant of such illegal importation.

Both inferences flowing from mere possession alone are facts in the case are quite simple.

The petitioner had an automobile trip from New York to Laredo, Texas, tried to enter Mexico, was denied entry, came back to Laredo and was search thoroughly at customs and the less than a half an ounce was found.

At the trial, petitioner took the stand and admitted acquisition of the marihuana in New York.

On the first issue, that is whether the Fifth Amendment privilege is available as a defense to a Marihuana Tax Act prosecution.

I think the Court's language in the Grosso case is particularly at, that is at the hazards of incrimination ought to be measured by literal and full compliance with all the statutory requirements.

The Government has no argument on that test.

They simply say that literal and full compliance with the statute is quite simple.

A proposed illegal possessor of marihuana can not pay, prepay the marihuana tax, cannot obtain an order form from the Secretary or the Treasury, and therefore is absolutely prohibited from obtaining marihuana and hence argues the Government.

There were no hazards of incrimination under the statute.

You just cannot acquire marihuana.

Our petitioner's position is that the plain meaning of the Act, the legislative history of the Act and in fact the Government's position in a case before this Court are completely contrary.

A brief review I think of the statutory scheme will be helpful.

The Order form requirement under the Marihuana Tax Act states that a written order form must be obtained prior to any transfer of marihuana.

There are no significant exceptions.

The tax is imposed on all transfers required to be accompanied by a written order form, and of course all must be accompanied by such an order form.

The tax is a very interesting one, it is a dollar an ounce on registered transferees, that is persons whose activities in relation to marihuana are lawful and who have registered and paid the special occupational tax.

And in the case of all others to with unregistered persons, persons whose possession is likely to be unlawful, the tax is $100.00 per ounce.

There are very clear schemes for statutory disclosure under the Marihuana Tax Act.

The written order form, a duplicate must be preserved in the internal revenue district for two years.

It's available to federal state and local prosecutors and admissible in evidence.

Now, against this very clear statutory scheme compelling incrimination, it seems to me we have to deal with the Government's position.

Government's position is that they have had a policy since the passage of the Marihuana Tax Act in 1937 of construing that Act in pari materia with the 1914 Harrison Anti-Narcotic Act.

Under the Harrison Act, it expressly states that only registered persons, persons who have paid the occupational tax can obtain an order form.

It's expressly in the statute.