HARRIS v. UNITED STATES

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Argument of Sidney M. Glazer

Chief Justice Earl Warren: Number 11, Nathaniel Harris, Petitioner, versus United States of America.

Mr. Glazer.

Mr. 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?

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.

Justice John M. Harlan: Supposing that in the (Inaudible)

Mr. Sidney M. Glazer: No, I don't think -- on -- if all they put in proof, whether there was an unstamped package, I don't --

Justice John M. Harlan: They put in proof of possession and proof of unstamped package.

Mr. 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 --

Justice John M. Harlan: But you're going all over Gore again.

We've disposed with all that in court.

Mr. 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.

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.

Justice William J. Brennan: Mr. Glazer, I -- I gather your argument is that you (Inaudible)

Mr. 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.

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

Mr. Sidney M. Glazer: Yes, Gore was a Section 2255.

Justice Potter Stewart: On direct appeal.

Mr. Sidney M. Glazer: And this was a direct appeal from the conviction.

Justice Hugo L. Black: If you have -- what were your objections made to this?

What were the objections made to this -- this charge?

Mr. Sidney M. Glazer: Your Honor, we were not trial counsel and --

Justice Hugo L. Black: Were there any?

Mr. 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 --

Justice 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.

Mr. Sidney M. Glazer: The -- that's our contention, Your Honor.

Justice 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 --

Mr. Sidney M. Glazer: Well --

Justice 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?

Mr. Sidney M. Glazer: He did that, Your --

Justice Felix Frankfurter: Isn't that -- isn't that true?

Isn't that all true?

Mr. 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.

Justice Felix Frankfurter: That -- that was his opening -- general way --

Mr. Sidney M. Glazer: Yes.

Justice Felix Frankfurter: -- and that's what in a human way got down to.

Mr. Sidney M. Glazer: Yes, sir.

Justice 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.

Mr. Sidney M. Glazer: And -- and that --

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

Mr. Sidney M. Glazer: Well, that --

Unknown Speaker: (Inaudible)

Mr. Sidney M. Glazer: Yes.

Unknown Speaker: That he sought to do.

Mr. 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.

Justice 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.

Mr. Sidney M. Glazer: Well --

Justice 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.

Mr. 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.”

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 --

Justice 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.

Mr. 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 --

Chief Justice Earl Warren: We'll recess now, Mr. --

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Argument of Sidney M. Glazer

Chief Justice Earl Warren: Number 11, Nathaniel Harris, Petitioner, versus United States of America.

Mr. Glazer, you may continue.

Mr. 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.

Chief Justice Earl Warren: Mr. Murphy.

Argument of John L. Murphy

Mr. 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.

Justice Hugo L. Black: Doing what?

Mr. 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.

Justice Felix Frankfurter: What -- was the mirror -- is -- is that before a mirror?

Is that -- is that relevant --

Mr. John L. Murphy: It was --

Justice Felix Frankfurter: -- to the transaction?

Mr. John L. Murphy: No, Your Honor, the -- the --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. John L. Murphy: -- gist of the transaction is possession of -- of the drug.

Justice Felix Frankfurter: Yes, all right.

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

Mr. John L. Murphy: It was upon a mirror.

Justice Felix Frankfurter: Oh.

Mr. John L. Murphy: It was -- they were using the mirror simply --

Justice Felix Frankfurter: I suppose --

Mr. John L. Murphy: -- as a glass.

Justice Felix Frankfurter: All right.

Mr. 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.

Justice Hugo L. Black: I didn't quite get from you, what was he charged with under the first count, sale or purchase?

Mr. John L. Murphy: Purchase.

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

Justice Hugo L. Black: In purchase.

Mr. John L. Murphy: Purchase of 224 grains of heroin.

Justice Hugo L. Black: Purchase knowing it to have been what?

Mr. John L. Murphy: Not in or from the original stamped package.

Justice Hugo L. Black: Not in or from the original.

Mr. 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.

Chief Justice Earl Warren: That which he bought as you charge him with in the first count?

Mr. John L. Murphy: That is correct.

Justice William J. Brennan: 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?

Mr. John L. Murphy: His defense was alibi, yes.

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

Justice William J. Brennan: 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?

Mr. John L. Murphy: No, Mr. Justice Brennan, there was not -- the Government's case was founded upon the presumption.

Justice William J. Brennan: 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?

Mr. John L. Murphy: That is correct.

Justice John M. Harlan: (Inaudible)

Mr. 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.

Chief Justice Earl Warren: Well, is the -- is the presumption broad enough to include purchase?

Mr. John L. Murphy: Under Section 4704 yes.

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

Chief Justice Earl Warren: Well, I know but --

Mr. John L. Murphy: -- the -- the presumption --

Chief Justice 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?

Mr. 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.

Chief Justice Earl Warren: The conviction of possession?

Mr. John L. Murphy: Conviction of all of the elements.

Chief Justice Earl Warren: Does it say that?

Mr. John L. Murphy: It just says, “Authorize conviction.”

Justice Hugo L. Black: Possession is enough to convict the purchase, sale and what else?

Does is mention?

Mr. 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.

Justice Hugo L. Black: So, they might have picked out sale instead of purchase, or they picked up concealment instead of purchase and had --

Mr. John L. Murphy: Well, in this case they picked out receive and conceal and facilitate the receipt and concealment.

Justice William J. Brennan: Mr. Murphy, am I -- am I correct that in Gore there was an affirmative evidence of a sale, was there not?

Mr. John L. Murphy: Yes, there was.

Justice William J. Brennan: So, the conviction then on this is, are we dealing now with 174, 4704 right?

Mr. John L. Murphy: We are dealing with both of them in this case.

Justice William J. Brennan: With both of them.

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

Mr. John L. Murphy: That is correct.

Justice William J. Brennan: And in this case, I want to be clear about this.

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

Mr. John L. Murphy: That is only fact which differentiates this case from Gore.

Justice 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?

Mr. John L. Murphy: That is exactly the Government's --

Justice Felix Frankfurter: To show --

Mr. John L. Murphy: -- position.

Justice Felix Frankfurter: -- that's all there's in this case?

Mr. 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.

Justice 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?

Mr. John L. Murphy: Yes, it would Mr. Justice Black.

Justice Hugo L. Black: What would be the --

Mr. 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.

Justice Hugo L. Black: Why, why would it exhaust itself that way?

Mr. 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.

Justice Hugo L. Black: That's right, but they have -- the statute makes sale, purchase, dispense or there's distribution about it.

Mr. John L. Murphy: Well, I think --

Justice Hugo L. Black: There are four -- four separate things.

Mr. John L. Murphy: There'd certainly room for interpretation there, Mr. Justice Black but insofar as we have --

Unknown Speaker: I -- I like your interpretation but I was trying to see what -- on what logic it could be based.

Mr. 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.

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.

Justice William J. Brennan: 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 --

Mr. John L. Murphy: It was on --

Justice William J. Brennan: -- Gore?

Mr. John L. Murphy: -- petition now which has not been acted on.

Justice William J. Brennan: Was that like -- was that like Gore in the sense that there was affirmative evidence of a sale, is that right?

Mr. John L. Murphy: That is correct.

Justice William J. Brennan: 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?

Mr. John L. Murphy: That is correct.

Justice William J. Brennan: 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?

Mr. John L. Murphy: The proof of the possession of the drug.

Justice William J. Brennan: Would --

Mr. John L. Murphy: The possession --

Justice William J. Brennan: Now let me use --

Mr. John L. Murphy: -- may be incidental to the sale.

(Voice Overlap) --

Justice William J. Brennan: Yes, but your affirmative testimony was that he sold it, not that he bought it.

Mr. John L. Murphy: That is correct.

Justice William J. Brennan: Is that so?

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

Mr. John L. Murphy: That is correct.

Justice William J. Brennan: 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?

Mr. John L. Murphy: That is correct.

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

Justice John M. Harlan: (Inaudible)

Mr. John L. Murphy: That is correct, Mr. Justice.

Justice John M. Harlan: Therefore in order to prove a case under 4704, you have to prove possession and you have --

Mr. John L. Murphy: And you want --

Justice John M. Harlan: -- to prove also absence of standards.

Mr. John L. Murphy: That's true.

Justice John M. Harlan: (Inaudible) the raise to the presumption --

Mr. John L. Murphy: That is correct.

Justice John M. Harlan: -- whereas under your (Inaudible) under 174 all you have to do is prove possession.

Mr. John L. Murphy: That is correct.

Justice John M. Harlan: So that you do have to prove more in the first case than you do in the second.

Mr. John L. Murphy: That is our position.

Justice 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?

Mr. John L. Murphy: That is correct, Mr. Justice Frankfurter.

Justice Felix Frankfurter: And that's where they have to sustain in the cases,

Mr. John L. Murphy: Is that --

Justice Felix Frankfurter: Otherwise, it's a state offense.

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

Mr. John L. Murphy: It's the beyond the power (Voice Overlap) --

Justice Felix Frankfurter: This has nothing to do with commerce, has it?

Mr. John L. Murphy: Nothing, sir, nothing.

Justice 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.

Mr. John L. Murphy: That is correct.

Justice Felix Frankfurter: So that the -- the stamp business is of the essence of the crime.

Justice 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.

Mr. John L. Murphy: That is correct and heroin is one of them.

Justice William J. Brennan: That's one here.

Mr. John L. Murphy: Yes that is completely

Justice William J. Brennan: So that --

Mr. John L. Murphy: -- off the hook.

Justice William J. Brennan: 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 --

Mr. John L. Murphy: Well, the stamp would --

Justice William J. Brennan: (Voice Overlap) --

Mr. John L. Murphy: -- obviously be spurious in that case (Voice Overlap) --

Justice William J. Brennan: Well, it might be of a spurious --

Mr. John L. Murphy: (Voice Overlap) --

Justice William J. Brennan: -- stamp with it -- but you could not lawfully have as I understand it, a stamped package of heroin.

Mr. John L. Murphy: That is correct.

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

Mr. John L. Murphy: Yes.

Justice William J. Brennan: Well then what's the significance of the so-called ingredient of a stamp in the case of heroin?

Mr. John L. Murphy: Well, in the case of heroin there is no real significance, no practical significance.

Justice William J. Brennan: And it doesn't go or it doesn't -- it's not an ingredient then to proof of the crime at all, is it?

Mr. 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 --

Justice William J. Brennan: 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 --

Mr. John L. Murphy: Well, I would assume --

Justice William J. Brennan: In -- in relation to tax paid stamps, you could still be convicted under that section?

Mr. John L. Murphy: Now, this -- this is an impossible situation, of course, but -- but assuming that the defendant attempted to show that his possession --

Justice William J. Brennan: And are you --

Mr. John L. Murphy: Would you --

Justice William J. Brennan: -- 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.

Mr. 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.

Justice William J. Brennan: Well, you wouldn't have to show any evidence would you?

Mr. John L. Murphy: It would --

Justice William J. Brennan: 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?

Mr. John L. Murphy: Yes, I would presume that, that would be a fair --

Justice William J. Brennan: That's not a -- that's not a matter of evidence now, is it?

Justice Felix Frankfurter: Is possession of heroin in and of itself a federal offense?

Mr. John L. Murphy: There --

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

Mr. 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.

Justice 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?

Mr. John L. Murphy: They --

Justice Felix Frankfurter: Must it be a -- is it --

Mr. John L. Murphy: Upon the commerce power.

Justice Felix Frankfurter: -- in interstate commerce?

Mr. John L. Murphy: (Voice Overlap)

Justice 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?

Mr. John L. Murphy: That's only -- that's the only way you can obtain heroin.

There --

Justice Felix Frankfurter: But --

Mr. John L. Murphy: -- is no legal way --

Justice Felix Frankfurter: Very well --

Mr. John L. Murphy: -- in which heroin can be manufactured in this country.

Justice Felix Frankfurter: So, therefore -- therefore, there's a presumption that if you're possessing it, it -- it was imported.

Mr. John L. Murphy: That is correct.

Justice 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.

Mr. John L. Murphy: Not under that section, no sir, but the Section 4704 is predicated under the revenue power.

Justice Felix Frankfurter: Well, but -- but that doesn't apply, if there's no revenue power exerted against heroin.

Mr. John L. Murphy: Of course, Congress could also tax that which it also prohibits.

Justice Felix Frankfurter: Certainly, and if Congress acts --

Mr. John L. Murphy: It's still on heroin.

Justice 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 --

Mr. 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.

Justice Hugo L. Black: Yes, but it's not permissible for anyone to possess heroin in this country.

Mr. John L. Murphy: No, Your Honor it is not.

Now this case with this rather fine --

Justice John M. Harlan: 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?

Mr. John L. Murphy: He could not --

Justice John M. Harlan: (Voice Overlap) --

Mr. John L. Murphy: -- prescribe heroin.

Justice John M. Harlan: What's that?

Mr. John L. Murphy: He could not prescribe it.

Justice John M. Harlan: Could not prescribe it?

Can't do it (Voice Overlap) --

Mr. John L. Murphy: There is no legal heroin available.

Justice John M. Harlan: No, there isn't.

Mr. John L. Murphy: Some of the doctors don't like that.

Justice 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 --

Mr. John L. Murphy: Congress --

Justice Tom C. Clark: (Voice Overlap) --

Mr. John L. Murphy: -- Congress places a tax on the manufacture or importation of all narcotic drug.

Justice William J. Brennan: Including heroin?

Mr. John L. Murphy: Including heroin, any narcotic drug, any derivative of opium, and heroin is certainly that.

Justice Potter Stewart: And it also absolutely prohibits the importation of heroin.

Mr. 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.

Justice Hugo L. Black: It prohibits importation, manufacturing, processing, use, possession or anything else in connection with heroin.

Mr. 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.

Justice William J. Brennan: (Inaudible) however, you didn't have to rely on the presumption, as I understand (Inaudible) affirmative evidence of a sale.

Mr. John L. Murphy: That is correct.

Justice William J. Brennan: Here, you have affirmative evidence which is nothing but confession and you rely on the presumption of the same conviction, is that right?

Mr. 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 --

Justice William J. Brennan: Now, here you're talking about ultimate facts.

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

Mr. John L. Murphy: That is correct.

Justice William J. Brennan: -- that's the ultimate fact.

Mr. John L. Murphy: Yes.

Justice William J. Brennan: 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?

Mr. John L. Murphy: We don't normally charge a sale when we are going to rely upon the presumption.

Justice William J. Brennan: 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.

Mr. John L. Murphy: Yes.

Theoretically yes, but --

Justice William J. Brennan: So, in -- in actual fact the only evidence you had, was evidence of possession.

Mr. John L. Murphy: Yes (Voice Overlap) --

Justice William J. Brennan: And it's -- and then you say from possession flows either purchase, sale, dispense or distribute, isn't that it?

Mr. John L. Murphy: That is correct.

Congress --

Justice Felix Frankfurter: Those -- suppose --

Justice John M. Harlan: That -- that is the wrong (Inaudible)

Mr. John L. Murphy: Well, we have the -- the possession under one statute alone and possession without the stamps under the other statute.

Justice John M. Harlan: 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)

Mr. John L. Murphy: Well, I'll have to answer that --

Justice John M. Harlan: Isn't that a case purchased simply by proving possession (Inaudible)

Mr. 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 --

Justice 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?

Mr. John L. Murphy: Of 174.

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

Justice Potter Stewart: And there cannot be with respect to heroin.

Mr. John L. Murphy: -- then it also raises a presumption of violation of 4704, yes, but that is --

Justice William J. Brennan: 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.

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

Mr. John L. Murphy: Yes, because there is a legal inference that there were no stamps on the drug.

Now --

Justice 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 --

Mr. John L. Murphy: Yes it --

Justice Felix Frankfurter: -- isn't that it?

That's a big question --

Mr. John L. Murphy: -- you just raised --

Justice Felix Frankfurter: -- that's raised.

Mr. John L. Murphy: That is a -- a very --

Justice Felix Frankfurter: And therefore --

Mr. John L. Murphy: -- important distinction.

Justice 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?

Mr. John L. Murphy: That was the holding in the Casey case, that's right.

Justice Hugo L. Black: But he couldn't explain anything about the stamp.

Mr. John L. Murphy: Well --

Justice 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.

Mr. John L. Murphy: That is correct.

Justice Hugo L. Black: Practically speaking.

Mr. John L. Murphy: Practically --

Justice Hugo L. Black: Conceptually, there's a difference.

Mr. John L. Murphy: Oh yes, conceptually there is a vast difference.

Justice William J. Brennan: 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?

Mr. John L. Murphy: No, he could not.

Justice William J. Brennan: No matter -- no matter how innocent his possession of it really --

Mr. John L. Murphy: But he is the one --

Justice William J. Brennan: (Voice Overlap) --

Mr. John L. Murphy: -- he is the one who has --- has put himself --

Justice Felix Frankfurter: That's the whole --

Mr. John L. Murphy: -- in that circumstance.

Justice William J. Brennan: I know.

Mr. John L. Murphy: And --and --

Justice William J. Brennan: 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).

Justice 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.

Mr. John L. Murphy: He can show --

Justice Felix Frankfurter: This is not a knowledgeable act, but it's a perilous act.

Mr. John L. Murphy: That would be --

Justice Felix Frankfurter: That's between a non knowledgeable act and perilous act.

Justice Hugo L. Black: Does the statute draw that thing?

Mr. 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.

Justice William J. Brennan: 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.

Mr. John L. Murphy: Well, if the jury --

Justice William J. Brennan: Would the jury find the possession be enough?

Mr. John L. Murphy: Yes.

Justice William J. Brennan: But it was actual heroin.

Mr. John L. Murphy: The jury is under no obligation to believe the defendant at all.

Justice William J. Brennan: No, but he could be convicted even though he believed that it was -- honestly believed it was talcum --

Mr. 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 --

Justice William J. Brennan: Well, there (Voice Overlap) --

Mr. John L. Murphy: (Voice Overlap) --

Justice William J. Brennan: Is there any language in the statute which makes it necessary that he know he has heroin in his possession?

Mr. John L. Murphy: No, there is not.

Not under 174 to my knowledge --

Justice Felix Frankfurter: You've held the contrary (Voice Overlap) --

Mr. John L. Murphy: I think --

Justice Felix Frankfurter: just might to know.

Mr. John L. Murphy: I think that it has been held that is strictly a malum prohibitum and -- and --

Justice Felix Frankfurter: Well, that's the Dotterweich case.

That's Balint.

Mr. John L. Murphy: Yes.

Chief Justice Earl Warren: Mr. Glazer, you may conclude.

Rebuttal of Sidney M. Glazer

Mr. Sidney M. Glazer: The Morissette case also refers to that case in dealing with the whole issue of intent --

Justice Felix Frankfurter: Yes.

Mr. Sidney M. Glazer: -- and says there is no intent required in these narcotic drug cases.

Justice 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.

Mr. 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 --

Justice Felix Frankfurter: Well, that was the whole argument in Balint, wasn't it?

Mr. Sidney M. Glazer: Yes.

Justice 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?

Mr. 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 --

Justice William J. Brennan: In -- in other words, the affirmative evidence of all those elements of the case.

Mr. 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.

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

Justice Hugo L. Black: I've wondered if you didn't answer one question in the little paragraph.

Mr. Sidney M. Glazer: Maybe I did, Your Honor.

Justice 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?

Mr. 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.

Justice 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) --

Mr. Sidney M. Glazer: No, no -- no, Your Honor.