LEARY v. UNITED STATES

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Argument of John S. Martin, Jr.

Chief Justice Earl Warren: No. 65, Timothy F. Leary, petitioner versus United States.

Mr. Martin, you may proceed with your argument.

Mr. John S. Martin, Jr.: Mr. Chief Justice and it may please the Court.

I would like this morning to turn and address myself to petitioner's contention that his conviction on charge for transporting and concealing marijuana on which the tax hadn't been paid in violation of Section 4744 (a)(2) of Title XXVI is unconstitutional because the conviction on that count violated his privilege against self-incrimination.

To a certain extent, the claim raised here is identical to that presented in the case to follow this, United States v. Covington.

There is a significant difference, however, because in this case, we do have a factual record against which petitioner's assertion of this claim can be judged.

I'd like to turn to that record, if I right, for a moment.

Prior to trial, petitioner's counsel moved for a continuance to allow him to prepare his defenses.

In the motion for continuance, petitioner's counsel stated, this appears at page 34 of the record, “Defenses will be raised which would show that this defendant is an authority on psychedelics drugs which this defendant maintains, includes marijuana and that he should be have the right of experimentation with such drug, including marijuana and that, although there are provisions in the law, which would seem to allow a person to experiment with marijuana, such provisions are in actuality non-existent because it is not possible to obtain an order form and legally pay the tax on marijuana and any use without such order forms are held to be illegal”.

Similarly, at the close of the case, in arguing –

Justice Potter Stewart: That's not in the -- (Voice overlap)

Mr. John S. Martin, Jr.: That's not in the printed appendix -

Justice Potter Stewart: It's in the original record?

Mr. John S. Martin, Jr.: It is in the record which is in the Court.

Justice Potter Stewart: Alright.

Mr. John S. Martin, Jr.: And that unfortunately is true of the other point that I intend to refer to at this time.

At the close of the case, petitioner moved for judgment of acquittal.

That time, his counsel stated, this is at page 493 of the record, under the tax count, doctors or scientists working in a laboratory can obtain marijuana, but not those who are using it for religious beliefs.

And again at the close, after the verdict had come in -and the motion for new trial which was filed, -counsel argued, -this is the written motion for new trial submitted after the judgment, it appears at page 649 of the record.

The Court erred in denying defendant's motion for judgment of acquittal as to count two and three of the indictment for the reason that the evidence demonstrated, the defendant transported and possessed marijuana in pursuit of his free exercise of his religion, in pursuit of scientific experimentation out of the laboratory and in pursuit of his right to bring up his family according to his own honest belief.

And since the $100 an ounce tax is a prohibitive tax, conviction on the count three as well as count two would violate the First, Fifth and Ninth Amendments of the Constitution of the United States of America.

It is the government's position in this case that petitioner from the outset recognized that his failure to comply with the Marijuana Tax Act was not the result of any fear that he would tend to incriminate himself, but rather on his recognition that the Act acted as to him as a total bar on his right to possess marijuana.

We submit that the petitioner correctly construed the Act.

That it's our contention that the Marijuana Tax Act as construed and applied, does not compel self-incrimination because it prohibits those who could not legally deal in marijuana from handling marijuana.

Chief Justice Earl Warren: Do we test the right of a man's Fifth Amendment rights by what happens at preliminaries in the proceeding or by what happens at the trial?

Mr. John S. Martin, Jr.: Well, I think, Mr. Chief Justice, what we have to do is examine the validity of the claim and I think it has to be examined against the factual basis of what he believed, his counsel mentioned yesterday.

Petitioner testified at the trial that he knew he could not obtain marijuana under the Act.

So, you have that also.

It is position that here the tax Act in question was designed by Congress to prohibit, and that is clearly stated in each of the reports accompanying the legislation that the Bill was designed to prohibit those who could not legally handle marijuana from doing so.

Congress did this by imposing a prohibitive tax.

Justice Abe Fortas: Perhaps, unfortunately, Congress didn't set the statute up that way.

Congress set this up as if it were serious and as if a person who wanted the product for certain uses could get a permit upon -- and pay a $100 tax and you're asking us to say that Congress was just fooling in what it really -- and what this really is, is a statute that prohibits the use of marijuana except of the dollar an ounce purposes?

Mr. John S. Martin, Jr.: Well, I think, Mr. Justice, what we are asking the Court to do is to look at the statute in terms of the realities.

And I think if you look at the record before Congress which included testimony from Mr. Hester who has been referred to previously and others that at the time this tax was enacted, marijuana was selling in the illicit market at $1 an ounce.

Congress imposed the $100 an ounce tax, clearly prohibited.

I think the fact --

Justice Abe Fortas: And you use this – do you use this as a distinction between Marchetti and Grosso?

Mr. John S. Martin, Jr.: Yes, we do, I think that --

Justice Abe Fortas: In other words, you say that because the tax here is such a great amount on the $100 users that we are to look at it as if Congress, instead of going through the ritual of the taxing machinery and prohibited the- transfer, possession or transportation of marijuana except for the dollar an ounce purposes?

Mr. John S. Martin, Jr.: That is correct.

That is the way the Act is --

Justice Abe Fortas: And that so construed, you say that this is different from Marchetti and the Grosso because in Marchetti and Grosso anybody could apply and there was no distinction in the amount of the tax.

Mr. John S. Martin, Jr.: That's correct.

I think that it's important to note also, Mr. Justice Fortas that what you had here, which you didn't have in Grosso and Marchetti is that an industry in which marijuana had legitimate and illegal uses and Congress was attempting to distinguish those.

That's why I think all of the reporting requirements contains --

Justice Abe Fortas: Doesn't that cut against your point?

Mr. John S. Martin, Jr.: No, it doesn't because Congress says --

Justice Abe Fortas: Because in Marchetti and Grosso, the entire industry so called was an illegitimate one?

Mr. John S. Martin, Jr.: That is correct.

But there, that showed --

Justice Abe Fortas: So that that would have been prohibitive.

What they wanted to do in Marchetti and Grosso was to prohibit everybody from using, possessing or transferring or whatever it was that kind of firearm and here they wanted to prohibit only some.

Mr. John S. Martin, Jr.: In Marchetti and Grosso particularly, however --

Justice Abe Fortas: I beg your pardon.

I was talking about Haynes.

Mr. John S. Martin, Jr.: Well, in Haynes, there was, again there was a $200 tax.

In Haynes, we're dealing only with one particular requirement of the Act which clearly required people to register if they had a firearm of the type described in that statute.

Here, however, I think that it's important to note that all of the disclosure requirements are directed basically at the legal industry, the legal marijuana industry so that legal use of marijuana would be made public and that the law enforcement officials could see that the legal marijuana was not diverted -into illegal channels.

Justice Abe Fortas: Apart from -- is there any reason -why Congress did not enact a prohibitory statute other than tradition and bureaucratic claims on this particular activity?

Mr. John S. Martin, Jr.: Well, I think there was -- the only reason they didn't enact a totally prohibitive statute insofar as illegal transactions were concerned, there was a legal market for this so they couldn't totally prohibit it.

But insofar as the illegal market was concerned, the reason they chose to use the prohibitive tax form was I think because at the time Congress was concerned with the five, four decision of this case and the 63 decision in Nigro and Doremus and they were afraid, unless the prohibitive section was not put in terms of that prohibitive tax, there might be some constitutional problems with that.

Justice Potter Stewart: Also, they were acting they thought under their power to tax, under their taxing power.

Mr. John S. Martin, Jr.: That is correct.

Justice Potter Stewart: And that's the power under which the earlier Narcotics Federal Legislation had been upheld.

So they were not purporting to prohibit anything.

They were purporting to simply be exercising their power to tax as --

Mr. John S. Martin, Jr.: What they had, Mr. Justice, in the Harrison Act made all of the -- prohibited all the legitimate forms in dealing in the Narcotics involved there.

I think there was some concern because the close decision of this Court in those cases, the fact that there was a general probation not formed in terms of the tax created some problems.

Justice Abe Fortas: Well, and you are asking us to construe this as a -- look at this as if it were something that Congress avoided, and you say Congress avoided it because of constitutional doubts as well as because treasury's claim as of that time for this highly priced jurisdiction I suppose depended upon its exercising the taxing power?

Mr. John S. Martin, Jr.: Well, I think, Mr. Justice, that what we are asking the Court to do is to look at the reality of the situation, to look at the fact that since this Act was enacted, providing this $100 tax on one ounce of marijuana that was selling in the illicit market for dollar, no person has ever applied to pay for this tax.

That the effect of it was to make it a prohibitive tax.

Therefore, this Court talked in Grosso and Marchetti of the fact that the claim of the Fifth Amendment has to be real and appreciable.

So we submit here that the Court has to look at the whole statutory scheme in this framework.

I think, from that examination, it appears here that the claim of the Fifth Amendment privilege is not real and substantial, but rather a fanciful and imaginary claim which petitioner came up with after the fact in an attempt to excuse his clear violation of federal law.

And, so for that reason we feel that the contention of Fifth Amendment privilege here should be rejected by this Court.

Chief Justice Earl Warren: Mr. Martin, if this man had not taken the stand, would your argument be the same concerning those excerpts from the records you just read us?

Mr. John S. Martin, Jr.: Well, I think it would be the same except that we would not have his testimony relied on.

I think we do have a lawyer's construction of the Act.

The counsel yesterday said that the Government's construction here was an imaginative one and suggested it was something novel.

Here is a lawyer looking at the Act and construes it in the same way we did before the issue was ever raised.

I think it's somewhat persuasive in that standpoint.

I think two, it goes to the reality of the situation of the fact that this act, everybody recognized, prohibits people who could not handle marijuana legally from doing so.

The practical effect of it is the total bar.

And for that reason, the claim of Fifth Amendment privilege is really a fanciful one which we submit was constructed after the fact and not the true motivating reason that the petitioner did not attempt to comply with the Act.

Chief Justice Earl Warren: Mr. Haft?

Argument of Robert Haft

Mr. Robert Haft: Mr. Chief Justice, may it please the Court.

I think that persons have not sort to apply for written order form or to pay the tax because the statute is so blatantly self-incriminatory that it would only be a mad man who would come to the Government and seek to fill out this order form.

I have read during the course of my argument the testimony of petitioner during the trial, that's at pages 86, 87 and 89 where he specifically said that he feared incrimination.

The part of the motion which the Government has read, I think that they have left out the very point, it was raised on page 651 of the transcript.

The Court erred in not dismissing or granting a judgment of acquittal as to the tax count because such tax requirement violates the Fifth Amendment privilege against self-incrimination.

It was raised at the District Court level.

The petitioner specifically testified as to his very real fear of the incrimination in the portions that I read yesterday.

Justice Abe Fortas: I beg your pardon.

How many cigarettes or whatever they call a marijuana would be made out of an ounce?

Mr. Robert Haft: I don't know, Mr. Justice Fortas.

I think the figure that I used yesterday was one pound yielded 1700 cigarettes; so that's roughly a 100 cigarettes an ounce.

Justice Abe Fortas: Well, would that mean that tax is just a cent on a cigarette?

Mr. Robert Haft: Yes.

That's the -- proper legal tax would be a dollar on the $100 an ounce.

I think what the Government is in essence asking here is that because Congress perhaps, having doubts about the constitutionality of an outright prohibition and because they wrote on a expressly tax measure rather than a prohibitory measure, if this Court feels that a prohibitory measure is constitutional, this Court ought to go ahead and rewrite the legislation.

That is -is completely the wrong position.

Going back to the presumption point of yesterday, in answer to Mr. Justice Stewart's question as to other adequate evidence of guilt which there clearly was, I pointed out that under the Court's decision in the United States against Romano, it would be sustained; that my position would be sustained.

In addition, I'd like to point out to the Court that on pages 102 to 104 of the record, in the charge to the jury, the district judge in practical effect limited the entire case to the trip from New York to Texas on the admission of acquisition by the defendant plus the statutory presumption and that's little of the case on the return back.

I think the charge is very clear.

It points almost exclusively to that one theory.

In the -last minute, I would like to make an application, Mr. Chief Justice and may it please the Court.

The next case, the Covington case raises just the tax issue.

We do feel and counsel for Covington does and the Government does not object, if the Court pleases, we do feel that the bulk of the argument on the taxing statute will come during the Covington argument and counsel for Covington is agreeable for permitting counsel for Leary to have some part of his time in arguing the further parts of the Marijuana Tax Act.

It would please the Court, we would like to split the argument to some extent on the Covington case.

Chief Justice Earl Warren: You may share his time if he is willing.

Mr. Robert Haft: Thank you.

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Argument of Robert J. Haft

Chief Justice Earl Warren: Number 65, Timothy F. Leary, petitioner versus United States.

Mr. Haft.

Mr. 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.

The Marihuana Tax Act on the other hand clearly states the contrary.

It says that every person whether or not registered and whether or not you've paid the special tax must obtain an order form prior to the acquisition of marihuana.

Justice Byron R. White: How about the Harrison Act in term -- assume you transfer without an order form?

Mr. Robert J. Haft: Under the Harrison Act, it is a crime as well.

Justice Byron R. White: Is there a special tax there?

And these are --

Mr. Robert J. Haft: Yes, there is a tax.

Justice Byron R. White: There on an illegal transfer?

Mr. Robert J. Haft: No, but I think that the pattern is very clear here under the Harrison Act since it permits only lawful transfers, the tax is very low, its one cent per ounce because it contemplates only legal transfers.

Justice Byron R. White: Is there a tax for illegal transfer?

Mr. Robert J. Haft: No, it is one cent because everything under that Act is only legal under the Marihuana Tax Act, this is a very clear distinction that dollar an ounce for legal transactions and a $100.00 an ounce for illegal ones for transfer permitted in a $100.00 an ounce case.

Justice Byron R. White: Nobody -- nobody's ever paid --

Mr. Robert J. Haft: Nobody is ever paid.

Justice Byron R. White: To paid a $100.00 nor has it ever been claimed from anybody?

Mr. Robert J. Haft: That's right.

Oh, has been severely --

Justice Byron R. White: Has it?

Mr. Robert J. Haft: Mr. Justice White, yes, they have been.

In fact United States --

Justice Byron R. White: These are people who are convicted under this Act for illegal transfers then have to pay the tax?

Mr. Robert J. Haft: They have a civil liability to pay it and there have been actually civil proceedings independent of criminal proceedings, and I think United States against Sanchez before this Court raised that question.

The legislative history if the plain meaning were not enough, a legislative history of the Marihuana Tax Act clears this point; very clearly that everybody was intended under that Act to be able to receive marihuana under a transfer, under an order form.

Clinton M. Hester, who was assistant general counsel to the treasury, testified before both the House and Senate committees in 1937 with reference to the Tax Act.

He said that this Act is different than the Harrison Act.

Under the Harrison Act, only legal persons in licit transactions can obtain Harrison narcotics, but under this Act, the Marihuana Tax Act, anyone can get marihuana just as under the National Firearms Act, and the analogy was bought out by the treasury sponsor.

Just like under the National Firearms Act, this Act, the Marihuana Tax Act which permit transfer of Marihuana to anyone but of course upon the payment of a heavy tax as in the National Firearms Act, by golly, anybody could get a submachine gun.

And in -- in that very same legislative history, Clinton Hester stated and he spelled out exactly. He said, a person who wants marihuana will go to the collect, pay his $100.00, fill out the order form and give that to the transferor as the transferee would do that.

The Government itself totally inconsistent with his new argument, I think highly imaginative one in order to meet the Haynes, Grosso, and Marchetti cases, completely inconsistent with this.

In United States against Sanchez before this Court in their brief, the Government said that the Marihuana Tax Act does not constitute a complete prohibition upon acquisition of marihuana by unregistered persons.

That instead of doing that, Congress shows to levy a $100.00 per ounce tax.

I submit that the regulations under the statute do not change the result.

The regulation specifically provide in the case of the order form that if the transferee is registered, it says if registered, put down your registration number, thereby clearly contemplating that persons not registered could obtain the order form.

Now, I think that the hazard of incrimination under my interpretation which I think is the clearest statutory plain meaning of Act plus the legislative history.

I think the hazards are very clear.

Congress has created a special category, it's a clear red light, $100.00 an ounce, we specially reserve that for illicit transactions.

And by the way, the legislative history makes that clear.

It said it in the House report say the $100.00 is for illicit transactions.

Now, you're going to have a possessor whose possession is unlawful under virtually the laws of every state.

Go to the Secretary of the Treasury, tender a $100.00 an ounce tax, fill-out an order form which asks for his name, his address, the quantities he proposes to get, and who is going to transfer it to him.

I submit that that is submitting the jail key at the time and I think it's clear the hazards are blatant.

Now, the Government I think also in recognition of the clear force of this argument has said in many places in their brief, well, the petitioner is some sort of fellow who is on psychedelic cloud number 9, who really doesn't care about this Fifth Amendment privilege.

He knew about our policy.

He knew about this complete prohibition and he never cared in this matter or gave no concern to the Fifth Amendment privilege in connection with his failure to apply for the tax, to pay the tax.

Now, in the testimony, in the appendix, pages 86, 87, and 89, I think the testimony completely contradicts that position.

Question now, “why didn't you pay the transfer tax in this instance on the marihuana which you had?”

Answer, “well, I knew that I couldn't get such a permission.

I also knew that if I had applied for such a stamp, I would probably subject myself to investigation.”

Now, as I read the next excerpt, I think it's clear that permission in this context, the petitioner meant applying for registration which is as very clear as applicable only to lawful possessors, there's no difference between the Government and petitioner on that.

Question, “Do you the tax on marihuana, the special tax on marihuana?”

Answer, “its my understanding that for one dollar or three dollars, you can buy some sort of permit.”

And that is by the way the amount of the occupational tax, a dollar in one case and three in another.

And that -- and if you have marihuana and don't have a permit, it's a dollar an ounce.

Question, “Wwhy didn't you pay that?”

Answer, “I was very certain that I would not be able to pay the tax on the marihuana and not -- not only would it be taken away from me but I would be subjected to Action.”

Question, “Did you or did you not have an honest belief that you could not obtain the permit for marihuana?”

Answer, "Yes, sir.

I had a strong and honest belief that I could not get it and that it would cause a lot of publicity and trouble for both the Government and myself.”

I think the --

Justice John M. Harlan: Is this case tried after Marchetti and Grosso with that?

Mr. Robert J. Haft: No, the case was tried before.

The verdict was handed down by the jury before Marchetti, Haynes and Grosso and about 10 days before the Court granted certiorari in the Costello case which first gave a hint that this issue would come before the Court.

The last point on the self-incrimination issue, we believe that if we're right on this point that you must reverse on the importation count as well, whether we're correct or not on the presumption point, but that count has to be reversed also because of the trial judge's instructions in this case.

On the presumption issue, he charged the statutory presumption that the jury may convict unless the defendant explains the satisfaction -- his possession to the satisfaction of the jury.

The judge then added to that, he said, “by that I mean unless the defendant explains that his possession was a lawful and legitimate possession, immediately thereafter, the trial judge charged that a failure to pay the tax, the marihuana tax, the failure to produce the order form on demand rendered the transaction illegitimate.

So that the jury was in a clear position, in fact was suggesting that they find the possession illegitimate on the importation count based on the failure to pay the tax or produce the order form.

The second issue before the Court is the validity of statutory presumption in 176a under the Due Process Clause.

Now, the statute itself, 176a is a very narrow crime that's defined.

It is that whoever knowingly with intent to defraud the United States in any manner facilitates the transportation of marihuana after the same has been imported and knowing that the marihuana has been imported is guilty of a crime.

Justice Byron R. White: What is that, the fraud part refers to? Defrauding it from -- of the tax?

Mr. Robert J. Haft: Yes, I believe that's what the intent to defraud the United States means because another part of the statute says marihuana which should have been invoiced, meaning that it should have import duly or levy should have been placed on it at the time of importation.

Now, these narrow statutory elements are swept away by the presumption which just says that mere possession is presumptive evidence of guilt unless the defendant explains his possession to the satisfaction of the jury.

Now, it's our position that that presumption is not rational, it does not comport with common experience.

The issue was raised at the trial by evidence which was introduced showing that marihuana grew in the United States, grew any place in the United States, and offer was made to show the amount of marihuana grown domestically and the proportions of marihuana grow domestically as against importer, that offer was rejected by the trial court.

Now, my position is that whether marihuana is imported in fact is an arguable proposition but that whether the defendant in fact knew of the illegal importation, the presumption that he in fact knew in any particular case is an irrational presumption and that in either of that applying the standard of reasonable doubt as is required in a criminal case at best in arguably rational proposition is one that ought to be condemned by this Court.

In the reply brief in this matter, a -- I cite a case entitle the United States against Adams which was decided subsequent to the submission of the Government's brief in this case.

In United States against Adams, the United States District Court for the Southern District of New York made various findings which I think are important here.

I think that the legal rationale of that case is something that of course is before this Court and there's no sense citing another precedent on that.

I think the findings are important.

The Court held an evidentiary hearing and made the following findings.

One, that marihuana is a plant which grows extensively on a wild basis without fertilization.

It also a plant that is easily cultivated and is very hardy in its growth that is impossible to determine whether any quantity of marihuana is imported or is domestic and that is on scientific investigation of the particular quantity, its virtually impossible.

Most importantly, the judge found that common experience if anything tends to suggest that most people if not all are under the belief that marihuana is grown domestically and that that explains its wide spread domestic use.

In this regard, the judge relied upon what he considered the stuff of common experience, the everyday newspaper plus with federal and state enforcement officials themselves are saying about this problem.

And the strongest argument it seems to me on the extensiveness of the domestic growth and the judge found it was very very substantial, was it year after year, the enforcement and officials point out that this is a vital problem, a prevalent problem and they proudly report the vast acreage destroyed in the United States.

And the very next year the Bureau of Narcotics reports another vast amount of acreage that they've found that next year leading to the inference it seems to me that there's a substantial amount that is not discovered each year and which does form the source of supply for domestic -- domestically used marihuana.

The judge referred to his reading of the everyday newspaper and he said in one not unsensational newspaper he found five accounts in three months that unsensational newspaper was the New York Times, and one of the article that he cited was on page one of the New York Times, on August 21, 1968, it cited in his opinion.

In that case, in Jersey, near Hoboken in Jersey City, the state officials had found an area of meadow lands that had 20,000 marihuana plants which they proceeded to destroy.

That one growth was enough to supply one cigarette to every one of the 17 million high schools students in the country, that one area.

In some areas, marihuana is so thick that a truck load can be gathered very quickly.

Plants, some as high as 10 feet grow along the Susquehanna railroad tracks, the parallel route one along the North Bergin segment of the meadow.

Now, this is a problem which was not really before Congress at the time in 1956 that they passed the presumption.

At that time, they had Commissioner Anslinger's testimony that 90% of seizures in the United State came from Mexico.

The other testimony was of Texas and border enforcement officials, which is by no means representative of the experience in the country.

Taking just the acreage destroyed by the Bureau of Narcotics in 1965, the last figure that the bureau itself reported which is on page 17 of their annual report for that year, there were 1,900 acres destroyed.

Using the bureau's own estimate of yield and the estimate of the number of cigarettes per pound from the article I read to you, the 1965 seizures alone, destruction of acreage.

If it had been committed to yield would have produced 2 billion marihuana cigarettes or 10th to every person in the United States.

Marihuana does pass from many hands from the source to the smoker, and I think that's important to attesting whether or not a defendant should he held to know or could know the basic source because this is the kind of thing which is transferred often.

Another function --

Justice Potter Stewart: I missed the statement you just made from that of smoker.

Mr. Robert J. Haft: I said that marihuana in the traffic passes from many hands from the original source or the grower to the smoker.

There maybe 20 or 30 middleman in the transaction and telling the defendant another one who's caught at possession, now it's up to you to explain this or that you should know it's rational to presume that you knew whether it was imported or domestic, I say it's irrational.

I say that because this is a criminal presumption that were talking about applicable at a criminal case, the standard reasonable doubt are oath to apply here and that you are telling the jury when you permit this kind of presumption that this probability that the defendant knew that a given quantity of marihuana was imported, we're telling the jury when we use that presumption that the probability is far and excess of 50/50 that the defendant knew --

Justice William J. Brennan: Mr. Haft, I gather you don't embrace Judge Frankel's resolution of the presumption problem?

Mr. Robert J. Haft: I support it.

Justice William J. Brennan: Do you or not?

Mr. Robert J. Haft: Yes, I do.

I do but --

Justice William J. Brennan: Because he doesn't desire to read that opinion, he doesn't – he doesn't say that it's completely invalid, it just says it has to be supplemented and it may be the subject of appropriate instructions.

Mr. Robert J. Haft: That is correct Mr. Justice Brennan, I do agree with that.

I do agree also with the point he makes that this kind of a presumption creates a very unfair situation because if defendant is in a position where it's impossible for him to defend because he can't defend on the lack of knowledge of importation.

He can't go back and try and prove the source of this through this long chain of title.

Now, its quite different from the illegal still case where a defendant ought to be in a position, explain why he is 20 feet way out in some place, its dark, why is he there that night?

That he can explain but he can't explain.

He can't prove.

He doesn't have the ability to prove whether that marihuana was in fact imported.

Justice Potter Stewart: Where is the difficulty in this case Mr. Haft if understand the record is that according to the defendant's own testimony, he did import this marihuana from Mexico into the United States.

He had it in his pocket so he said when he went to Mexico and stayed there, when he came back and -- so in this case, there's no real question of its being imported, is there?.

Mr. Robert J. Haft: Yes, there is because the judge, the trial judge withdrew the first count which was a smuggling count --

Justice Potter Stewart: Yeah.

Mr. Robert J. Haft: On the theory that there could not be a smuggling into or importation into the United States on these facts because he had admitted acquisition of it in New York, had practically not crossed into Mexico, it's only international.

Justice Potter Stewart: Oh, practically not but he had – he had gone to Texas and hadn't he headed to Mexico.

Mr. Robert J. Haft: He also have the entire issues of fact on whether he knew on the way back over the bridge whether the marihuana had been thrown out of the car or not.

Justice Potter Stewart: Well, but it wasn't and according to his own testimony as I understand it, you tell me if I misunderstand the record, I haven't read it totally.

The marihuana that was found was taken on this trip across the bridge and then back across the bridge from first to Mexico and then back into the State of Texas in the United States.

Mr. Robert J. Haft: That is correct Mr. Justice Stewart but --

Justice Potter Stewart: So then it was --

Mr. Robert J. Haft: There were issues raised because his daughter had had the marihuana.

He told her to get rid of it.

As they were over the bridge practically at the custom station, she told him she hadn't.

The whole question of the opportunity to stop then was raised. But the point I think here was --

Justice Potter Stewart: Maybe there wasn't smuggling, I mean, maybe there wasn't meant for smuggling.

But the facts according to his own testimony did show importation, did they not?

Mr. Robert J. Haft: Yes, I --

Justice Byron R. White: Mr. Haft, wasn't it really left to the jury what wasn't left to the jury the question of -- of the transportation from New York --

Mr. Robert J. Haft: Exactly.

Justice Byron R. White: Down and you can't tell whether the jury decided that on that basis or on the -- or on coming across the bridge --

Mr. Robert J. Haft: Exactly.

The Government in their brief says, “Well, there is this alternative theory.”

Now, there's no question that the guilt -- evidence of guilt is overwhelming on the trip to Mexico back to Texas if the jury so believe.

But because of the use of the unconstitutional presumption here on the side that is New York down to Texas coupled with a statutory presumption, we rely on the Romano case in which this Court said that despite overwhelming evidence of guilt, if an unconstitutional presumption is in a case and we can't speculate how the jury found whether they used it or not, we are going to reverse the case.

Thank you.

Chief Justice Earl Warren: Mr. Martin?

Argument of John S. Martin, Jr.

Mr. John S. Martin, Jr.: Mr. Chief Justice and may it please the Court.

With the Court's permission, I would like to address myself first to the question concerning the validity of presumption to which the counsel was just addressing himself, because that is the question that is peculiar to this case and is not related to the -- immediately following case, that's United States v. Covington which also raises the issue raised -- second issue in this case as to the validity of Marihuana Tax Act.

Section 176a of Title 21 provides basically that anyone who imports or receives, conceals, or facilitates the transportation concealment or sale of illegally imported marihuana, knowing that it is illegally imported shall be guilty of a federal crime.

That statute also contains a presumption written into the statute by Congress, and that presumption in the statute appears at page 44 (a) of the appendix, it provides that whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.

It is the Government's position in this case that that statutory presumption is valid. At the outset, I think I should make clear that that does not appear to be a dispute between council as to the proper standard to be applied in determining whether or not a statutory presumption is valid.

All counsel rely on the articulation of that standard which is found in top the United States where the Court said that the validity of the statutory presumption depends upon the rationality of the connection between the fact proved and the ultimate presumed.

Chief Justice Earl Warren: Now, I -- you said that the outset Mr. Martin that you're going to address yourself to the presumption.

Now, does that statute there directly on presumption or upon the guilt possession?

Mr. John S. Martin, Jr.: Well, what the statute does Mr. Chief Justice is it provide that possession alone will give rise to the inference that the defendant knew that the -- that the marihuana was imported illegally, one, and two, that the defendant knew that.

So this -- the actually possession gives rise to all of the other elements necessary to convict under the statute if you show that he either received it or concealed it which is the normal case in any one of this cases.

Chief Justice Earl Warren: Well, the thing -- the thing that I didn't get is what language in there in that statute that you've read says that it is a presumption that it was illegally imported?

Mr. John S. Martin, Jr.: Well, it says by saying that possession shall be deemed sufficient evidence to authorize conviction so that --

Chief Justice Earl Warren: Yes, conviction of what?

Mr. John S. Martin, Jr.: Of the crime stated in that subsection which is the importation or the receive --

Chief Justice Earl Warren: Oh, that is the section --

Mr. John S. Martin, Jr.: That it's always under one Section, that's correct Mr. Chief Justice so that --

Chief Justice Earl Warren: Alright.

Mr. John S. Martin, Jr.: The presumption clearly carries with it all of the elements contained --

Chief Justice Earl Warren: Yeah.

Mr. John S. Martin, Jr.: In that Section once you find possession.

Justice Byron R. White: Well, Mr. Martin, do you think that top rule is really equivalent to a no evidence rule that one fact is just an evidence of another, sort of s shuffling same rule?

Mr. John S. Martin, Jr.: No, I think that that is not that.

I think that what the top rule recognizes is that there are certain facts that give rise to legitimate inferences.

I think there are two types --

Justice Byron R. White: Another fact that don't?

Mr. John S. Martin, Jr.: Excuse me?

Justice Byron R. White: Another fact that don't?

Mr. John S. Martin, Jr.: It will not support certain inferences.

Clearly, and this is the ruling in top itself that the fact that a man had been convicted of a crime and he had in his possession a gun could not support an inference that the gun had been transported into state commerce after the passage of the Firearms Act.

But I think there are two types of presumptions that the law really recognizes.

One of those that flow, would you might say would flow from logic alone, for example, the presumption that a man found in a stolen car in the state other than the state of theft knew that the car was stolen had in fact transported into state commerce.

That's presumption that really just flows from the basic fact of finding him in the other state in recent possession of a stolen car.

However, there are other types of presumptions and I think that the presumption in Gainey is one, which depends upon an assessment of certain empirical data.

In Gainey, you had a situation where Congress determined that it was a reasonable presumption that someone present at an illicit steal side was engaged in the business of operating the illicit steal.

Now as the Court pointed out in that case, I don't think that it necessarily would flow from a matter of logic alone from possession, from presence at the site that the party was engaged in the operation of the steal until you look at some other facts, assess some empirical data relating to the operation of a steal, and that is that people engaged in that type of operation.

Justice Thurgood Marshall: But with the marihuana, it might not have been imported?

Mr. John S. Martin, Jr.: Well, I think, what we have --

Justice Thurgood Marshall: There was a steal, there was a stolen car, there was this, there was that, but this marihuana might not have been imported.

Mr. John S. Martin, Jr.: That is a possibility Mr. Justice Marshall.

Justice Thurgood Marshall: Might have gotten it in New Jersey, in (Inaudible)

Mr. John S. Martin, Jr.: Absolutely, and that possibility existed with regard to the opium in Ye ham where the Court sustained the validity of silver statute in regard to opium.

There --

Justice Thurgood Marshall: What -- was there any evidence that the poppy was grown in the United States?

Mr. John S. Martin, Jr.: No, I admit there is a distinction but I want to try to point is the fact that it is possible that opium that someone might have was not illegally imported but was in fact legally imported and diverted from the legal market sometime after.

The question is, is the inference a reasonable one?

Now, I think with regard to question Mr. Justice Marshall, counsel himself has conceded the validity of the finding in Adams and in that case Judge Frankel determined that the inference that marihuana is illegally imported was a valid inference, it could be drawn.

Justice William J. Brennan: In it some?

Mr. John S. Martin, Jr.: Well, that the inference contained in the statute that when someone has shown to have been in possession of the marihuana, the jury can infer that the marihuana was illegally imported.

He found that to be a valid statutory inference and counsel here has accepted that decision by Judge Frankel.

Justice William J. Brennan: Did he go, strike that?

Mr. John S. Martin, Jr.: Yes, he did.

He --

Justice William J. Brennan: Why is that his disposition?

Mr. John S. Martin, Jr.: Well, his disposition went to the issue on the question of whether or not from possession you could infer not only that the marihuana was illegally imported which he said you could, but also that the person in possession knew of the illegal importation of marihuana.

Now, --

Justice Abe Fortas: Mr. Martin, I beg your pardon.

Is there any official study to which we could refer showing estimating the amount of marihuana that's imported here as compared with the domestically, that the amount domestically grown or --

Mr. John S. Martin, Jr.: Well, the --

Justice Abe Fortas: Broken down as to uses.

Is there any study by any agency?

Mr. John S. Martin, Jr.: With the President's Crime Commission Mr. Justice Fortas did come to the conclusion that the -- that marihuana -- most of marihuana in the illicit market in the United States is imported at the country.

They did not give a statistical breakdown of this.

At the time that this bill was before Congress, commission Anslinger testified that approximately 90% of the marihuana seized in the illicit markets in this country had come in from Mexico, and I think its significant to know --

Justice Abe Fortas: Where'd he -- did he give any basis for that other than his own wisdom?

Mr. John S. Martin, Jr.: Well, he gave not a statistical break -- breakdown at all but he give an explanation of that fact which relates to the nature of Mexican marihuana as suppose to that which can be grown domestically.

And he said that because of the longer growing season in Mexico, the Mexican marihuana produces, has a higher alkaloid content and this is what produces the high, this is what the marihuana smoker is looking for in marihuana.

And I think that it is for this --

Justice Abe Fortas: Well, that contrary to what we just heard as I understood it.

Your adversary said that you couldn't tell by analysis of the marihuana whether it was domestic or imported, perhaps I misunderstood it.

Mr. John S. Martin, Jr.: Well, I think that it's -- it is probably true Mr. Justice that if you were to take marihuana and carefully cultivate it here perhaps in a hothouse or some artificial means, you could produce from domestic marihuana a strain that would be as potent as that which normally comes in from Mexico, but I think that the fact of experience is that marihuana is just growing wild which has been referred to does not have anywhere near that potency.

And it's for that reason that the marihuana smoker seeks out and attempts to get imported marihuana.

And if the Court please, it's for this reason, it is because the Mexican marihuana is a better form of marihuana that we submit that it is reasonable to assume that people in possession of marihuana will know its source.

I think that if there is a weakness in Judge Frankel's opinion and with all respect I say that there is, is that Judge Frankel in determining whether or not the presumption of knowledge is valid looks not to the relevant segment of the population referred to in the statute but looks to the population in general.

And he says that in general, people reading the papers will see that their marihuana can grow wildly in the United States.

Justice Abe Fortas: But the trouble something point here to me is that the -- as I understand this record, the trial judge in the present case would not permit expert evidence on this subject?

Mr. John S. Martin, Jr.: Well, there was some question raised as to the -- the presumption that was questioned asked of a witness and it was excluded.

I would say the dialog is set fort in the record is not very clear on the entire issue.

There was no motion made pre-trial as there had been in Adams to dismiss the indictment because the invalidity of presumption.

So the record is -- well, it does somewhat support that as far from clear.

But I do think that this presumption of knowledge is valid when you look at it in terms of the people to whom the statute is directed.

The statute is directed to those in possession of the marihuana and in view of commissioners Anslinger's testimony and some other authorities which are cited in -- at page 39 in our brief that those people who use marihuana, want the Mexican marihuana because it produces the better high.

It seems to me that these people are going to know where that marihuana came from because I would assume and I think it's obvious that the price that they pay for marihuana is going to depend upon the quality of the marihuana that they receive.

Justice Thurgood Marshall: Well, haven't things changed since the Anslinger testified considerably?

Mr. John S. Martin, Jr.: Well, I would submit not.

Justice Thurgood Marshall: Do you know as of today that 90% of the marihuana comes from Mexico as of today?

Mr. John S. Martin, Jr.: I certainly don't know.

Justice Thurgood Marshall: Is there any study that sells this?

Mr. John S. Martin, Jr.: I think that the only statistics that I think are somewhat persuasive or not the only but the ones that I think is somewhat persuasive Mr. Justice Marshall are those which appear at page 40 of our brief in the footnote which has to do with the amount of seizures of marihuana that have been taking place at our borders over the last eight years.

Justice Thurgood Marshall: Well, the local people are just more efficient than --

Mr. John S. Martin, Jr.: But I think what you have -- no, what I'm trying to emphasize here is if you look at those statistics, you'll see that 1962, we seized at the borders one -- approximately 1000 kilograms of marihuana.

In 1967, we seized at the borders 23,426 kilograms of marihuana.

I think this escalating amount of importation and I think this -- all this reflects is that the importation of marihuana is increasing in this country.

And I think that this fact supports the view that there is -- that is continuing in this country --

Justice Abe Fortas: Well, there's a lots of other --

Mr. John S. Martin, Jr.: A desire for Mexican marihuana for --

Justice Abe Fortas: Well, that's another explanation of those figures though obviously that is to say these maybe indicate not an increase in importation but increase in seizures.

It may also indicate a -- an enormous increase in total consumption --

Mr. John S. Martin, Jr.: That is possible but I --

Justice Abe Fortas: In terms of percentage which what we're talking about here is what is the percentage of marihuana that is possessed in the country and how its broken down, how that percentage is attributable to imported or domestically grown marihuana?

Mr. John S. Martin, Jr.: I think that's true. I could relate to other factors but I don't think there has been any significant increase in the amount of customs investigative located at the borders.

It is possible that it's just reflecting a general overall demand from marihuana but I do think that the figures are so significant that they show the desire again for Mexican marihuana, that is the stuff with which the illicit marihuana market operates.

Justice Hugo L. Black: May I ask you a question.

Suppose instead of writing this law in the nature of a presumption, I'm talking about a legal presumption, Congress had said that in any case in any court in this country where a man is charged with the crimes of having in his possession marihuana imported from abroad that need no -- that need be no proof to convince the jury that it came in from abroad but he can be convicted without proof.

Mr. John S. Martin, Jr.: Well, I think that --

Justice Hugo L. Black: What's the difference in that and this?

Mr. John S. Martin, Jr.: I think the -- there is a difference in that I think Congress had before it evidence which justified and concluded.

And this Court said in Gainey that this is the type of thing which comes within the fact finding power of --

Justice Hugo L. Black: I'm not talking about what the court said before.

What's the difference on those before?

Mr. John S. Martin, Jr.: I think the difference is that there is some basis from what Congress knew about the marihuana traffic.

Justice Hugo L. Black: But can Congress tell a jury what evidence is sufficient for it to have to bring about a conviction?

Mr. John S. Martin, Jr.: Well, I think it can.

I think it can in terms of defining a crime among other things.

I think that it would have been possible I would submit for Congress to have adapted a statute that just made it a crime to possess marihuana --

Justice Hugo L. Black: But if suppose it says you can convict without evidence?

Mr. John S. Martin, Jr.: Well, --

Justice Hugo L. Black: Should be presumed because it does.

Mr. John S. Martin, Jr.: Then, I think that that would be clearly be unconstitutional.

I think the question is within those limits of what can Congress do and well, I can do is say that in Gainey, the court sustained the power of Congress to enact reasonable presumptions and we think that --

Justice Hugo L. Black: I agree to that, but I never quite understood how you could take the Congress to take one element of a crime of -- an essential element and say that without any proof whatever, now, I'm not talking about jury drawing inference, but without any inferences, evidence whatever which a man can draw, if a jury can draw an inference that the man committed this essential element.

The jury is hereby authorized by the Congress to convict.

Mr. John S. Martin, Jr.: Well, I think that has to as the Court said in Todd, depends upon the rational of the connection between the fact that Congress says should be proved and what would be presumed.

Justice Hugo L. Black: Well, then it depends on the rationality connection altogether, it depends on the question of which has the right to determine that the evidence is sufficient to support a conviction, the jury or the Court or the legislature?

Mr. John S. Martin, Jr.: Well, I think that to what this Court has said is that is unnecessary -- that is a mixed question.

Justice Hugo L. Black: I understand it here, but I'm drawing that into question.

Mr. John S. Martin, Jr.: Well, and I understand what your position Mr. Justice but I do think that the court's cases do sustain the validity of the presumption here and with --

Chief Justice Earl Warren: Suppose a man was arrested in his own field of marihuana and the Government charge him and added the -- added account for illegal importation and he stood mute, --

Mr. John S. Martin, Jr.: I think the Government's own proof of the -- following the arrest in his own field would overcome the presumptions.

Chief Justice Earl Warren: I beg your pardon.

Mr. John S. Martin, Jr.: I think the Government's own proof that he was on his field would clearly overcome any presumption in that case.

Chief Justice Earl Warren: I suppose it was a half mile away?

Mr. John S. Martin, Jr.: Well, I think he could be being charged with the possession of the marihuana and still --

Chief Justice Earl Warren: I beg your pardon.

Mr. John S. Martin, Jr.: I mean he's being charged --

Chief Justice Earl Warren: You're charged with marihuana you do as they do in practically all this cases, they charge him with the presumption also.

Mr. John S. Martin, Jr.: Well, I think that their --

Chief Justice Earl Warren: Would he have to -- would he have to take the stand there and disapprove that he had imported it?

Mr. John S. Martin, Jr.: Well, I think we could do what the defendant did in Adams among other things was to challenge it before trial.

I think there's also possibility of other evidence could be presented on that.

Not I think but what we're dealing with is not the peculiar case but the generality of cases which Congress has determined that this presumption should apply.

It may have been that the man in Gainey just wanted onto the site of the steal, but the Court said it was still rational to allow the presumption to follow.

It maybe a man found stolen car across the border 10 minutes after the car has been stolen in another state, didn't steal it, it just happen to come in, he was tired and sit down but I think that the question here is the rationality of the presumption.

With the Court's permission I would like to turn to --

Chief Justice Earl Warren: But would it make any difference and to the Government on presumption?

What parts of the country a man was arrested in, whether it was part of the country where marihuana is customarily grown or whether it was in some other part where it couldn't be grown?

Mr. John S. Martin, Jr.: Well, I think that has some bearing on it, but I do think what we know about the desire of the people --

Chief Justice Earl Warren: Well, it was -- because the Government finds -- does the Government feel any necessity of proving those things, all of it.

All it proves is a man had it in his possession and it also charges of count of importation, then the question is has the Government in just proving that he has a possession without proving the relationship to growers in this country of marihuana, does that put him to the test of proving that it was not imported?

Mr. John S. Martin, Jr.: Well, I think this is what the statute provides and it's our submission that the statute in view of the facts that we know about the illicit marihuana traffic makes that a rational presumption.

Chief Justice Earl Warren: Very well.

Print this transcript Transcript: 

Argument of John S. Martin, Jr.

Chief Justice Earl Warren: No. 65, Timothy F. Leary, petitioner versus United States.

Mr. Martin, you may proceed with your argument.

Mr. John S. Martin, Jr.: Mr. Chief Justice and it may please the Court.

I would like this morning to turn and address myself to petitioner's contention that his conviction on charge for transporting and concealing marijuana on which the tax hadn't been paid in violation of Section 4744 (a)(2) of Title XXVI is unconstitutional because the conviction on that count violated his privilege against self-incrimination.

To a certain extent, the claim raised here is identical to that presented in the case to follow this, United States v. Covington.

There is a significant difference, however, because in this case, we do have a factual record against which petitioner's assertion of this claim can be judged.

I'd like to turn to that record, if I right, for a moment.

Prior to trial, petitioner's counsel moved for a continuance to allow him to prepare his defenses.

In the motion for continuance, petitioner's counsel stated, this appears at page 34 of the record, “Defenses will be raised which would show that this defendant is an authority on psychedelics drugs which this defendant maintains, includes marijuana and that he should be have the right of experimentation with such drug, including marijuana and that, although there are provisions in the law, which would seem to allow a person to experiment with marijuana, such provisions are in actuality non-existent because it is not possible to obtain an order form and legally pay the tax on marijuana and any use without such order forms are held to be illegal”.

Similarly, at the close of the case, in arguing –

Justice Potter Stewart: That's not in the -- (Voice overlap)

Mr. John S. Martin, Jr.: That's not in the printed appendix -

Justice Potter Stewart: It's in the original record?

Mr. John S. Martin, Jr.: It is in the record which is in the Court.

Justice Potter Stewart: Alright.

Mr. John S. Martin, Jr.: And that unfortunately is true of the other point that I intend to refer to at this time.

At the close of the case, petitioner moved for judgment of acquittal.

That time, his counsel stated, this is at page 493 of the record, under the tax count, doctors or scientists working in a laboratory can obtain marijuana, but not those who are using it for religious beliefs.

And again at the close, after the verdict had come in -and the motion for new trial which was filed, -counsel argued, -this is the written motion for new trial submitted after the judgment, it appears at page 649 of the record.

The Court erred in denying defendant's motion for judgment of acquittal as to count two and three of the indictment for the reason that the evidence demonstrated, the defendant transported and possessed marijuana in pursuit of his free exercise of his religion, in pursuit of scientific experimentation out of the laboratory and in pursuit of his right to bring up his family according to his own honest belief.

And since the $100 an ounce tax is a prohibitive tax, conviction on the count three as well as count two would violate the First, Fifth and Ninth Amendments of the Constitution of the United States of America.

It is the government's position in this case that petitioner from the outset recognized that his failure to comply with the Marijuana Tax Act was not the result of any fear that he would tend to incriminate himself, but rather on his recognition that the Act acted as to him as a total bar on his right to possess marijuana.

We submit that the petitioner correctly construed the Act.

That it's our contention that the Marijuana Tax Act as construed and applied, does not compel self-incrimination because it prohibits those who could not legally deal in marijuana from handling marijuana.

Chief Justice Earl Warren: Do we test the right of a man's Fifth Amendment rights by what happens at preliminaries in the proceeding or by what happens at the trial?

Mr. John S. Martin, Jr.: Well, I think, Mr. Chief Justice, what we have to do is examine the validity of the claim and I think it has to be examined against the factual basis of what he believed, his counsel mentioned yesterday.

Petitioner testified at the trial that he knew he could not obtain marijuana under the Act.

So, you have that also.

It is position that here the tax Act in question was designed by Congress to prohibit, and that is clearly stated in each of the reports accompanying the legislation that the Bill was designed to prohibit those who could not legally handle marijuana from doing so.

Congress did this by imposing a prohibitive tax.

Justice Abe Fortas: Perhaps, unfortunately, Congress didn't set the statute up that way.

Congress set this up as if it were serious and as if a person who wanted the product for certain uses could get a permit upon -- and pay a $100 tax and you're asking us to say that Congress was just fooling in what it really -- and what this really is, is a statute that prohibits the use of marijuana except of the dollar an ounce purposes?

Mr. John S. Martin, Jr.: Well, I think, Mr. Justice, what we are asking the Court to do is to look at the statute in terms of the realities.

And I think if you look at the record before Congress which included testimony from Mr. Hester who has been referred to previously and others that at the time this tax was enacted, marijuana was selling in the illicit market at $1 an ounce.

Congress imposed the $100 an ounce tax, clearly prohibited.

I think the fact --

Justice Abe Fortas: And you use this – do you use this as a distinction between Marchetti and Grosso?

Mr. John S. Martin, Jr.: Yes, we do, I think that --

Justice Abe Fortas: In other words, you say that because the tax here is such a great amount on the $100 users that we are to look at it as if Congress, instead of going through the ritual of the taxing machinery and prohibited the- transfer, possession or transportation of marijuana except for the dollar an ounce purposes?

Mr. John S. Martin, Jr.: That is correct.

That is the way the Act is --

Justice Abe Fortas: And that so construed, you say that this is different from Marchetti and the Grosso because in Marchetti and Grosso anybody could apply and there was no distinction in the amount of the tax.

Mr. John S. Martin, Jr.: That's correct.

I think that it's important to note also, Mr. Justice Fortas that what you had here, which you didn't have in Grosso and Marchetti is that an industry in which marijuana had legitimate and illegal uses and Congress was attempting to distinguish those.

That's why I think all of the reporting requirements contains --

Justice Abe Fortas: Doesn't that cut against your point?

Mr. John S. Martin, Jr.: No, it doesn't because Congress says --

Justice Abe Fortas: Because in Marchetti and Grosso, the entire industry so called was an illegitimate one?

Mr. John S. Martin, Jr.: That is correct.

But there, that showed --

Justice Abe Fortas: So that that would have been prohibitive.

What they wanted to do in Marchetti and Grosso was to prohibit everybody from using, possessing or transferring or whatever it was that kind of firearm and here they wanted to prohibit only some.

Mr. John S. Martin, Jr.: In Marchetti and Grosso particularly, however --

Justice Abe Fortas: I beg your pardon.

I was talking about Haynes.

Mr. John S. Martin, Jr.: Well, in Haynes, there was, again there was a $200 tax.

In Haynes, we're dealing only with one particular requirement of the Act which clearly required people to register if they had a firearm of the type described in that statute.

Here, however, I think that it's important to note that all of the disclosure requirements are directed basically at the legal industry, the legal marijuana industry so that legal use of marijuana would be made public and that the law enforcement officials could see that the legal marijuana was not diverted -into illegal channels.

Justice Abe Fortas: Apart from -- is there any reason -why Congress did not enact a prohibitory statute other than tradition and bureaucratic claims on this particular activity?

Mr. John S. Martin, Jr.: Well, I think there was -- the only reason they didn't enact a totally prohibitive statute insofar as illegal transactions were concerned, there was a legal market for this so they couldn't totally prohibit it.

But insofar as the illegal market was concerned, the reason they chose to use the prohibitive tax form was I think because at the time Congress was concerned with the five, four decision of this case and the 63 decision in Nigro and Doremus and they were afraid, unless the prohibitive section was not put in terms of that prohibitive tax, there might be some constitutional problems with that.

Justice Potter Stewart: Also, they were acting they thought under their power to tax, under their taxing power.

Mr. John S. Martin, Jr.: That is correct.

Justice Potter Stewart: And that's the power under which the earlier Narcotics Federal Legislation had been upheld.

So they were not purporting to prohibit anything.

They were purporting to simply be exercising their power to tax as --

Mr. John S. Martin, Jr.: What they had, Mr. Justice, in the Harrison Act made all of the -- prohibited all the legitimate forms in dealing in the Narcotics involved there.

I think there was some concern because the close decision of this Court in those cases, the fact that there was a general probation not formed in terms of the tax created some problems.

Justice Abe Fortas: Well, and you are asking us to construe this as a -- look at this as if it were something that Congress avoided, and you say Congress avoided it because of constitutional doubts as well as because treasury's claim as of that time for this highly priced jurisdiction I suppose depended upon its exercising the taxing power?

Mr. John S. Martin, Jr.: Well, I think, Mr. Justice, that what we are asking the Court to do is to look at the reality of the situation, to look at the fact that since this Act was enacted, providing this $100 tax on one ounce of marijuana that was selling in the illicit market for dollar, no person has ever applied to pay for this tax.

That the effect of it was to make it a prohibitive tax.

Therefore, this Court talked in Grosso and Marchetti of the fact that the claim of the Fifth Amendment has to be real and appreciable.

So we submit here that the Court has to look at the whole statutory scheme in this framework.

I think, from that examination, it appears here that the claim of the Fifth Amendment privilege is not real and substantial, but rather a fanciful and imaginary claim which petitioner came up with after the fact in an attempt to excuse his clear violation of federal law.

And, so for that reason we feel that the contention of Fifth Amendment privilege here should be rejected by this Court.

Chief Justice Earl Warren: Mr. Martin, if this man had not taken the stand, would your argument be the same concerning those excerpts from the records you just read us?

Mr. John S. Martin, Jr.: Well, I think it would be the same except that we would not have his testimony relied on.

I think we do have a lawyer's construction of the Act.

The counsel yesterday said that the Government's construction here was an imaginative one and suggested it was something novel.

Here is a lawyer looking at the Act and construes it in the same way we did before the issue was ever raised.

I think it's somewhat persuasive in that standpoint.

I think two, it goes to the reality of the situation of the fact that this act, everybody recognized, prohibits people who could not handle marijuana legally from doing so.

The practical effect of it is the total bar.

And for that reason, the claim of Fifth Amendment privilege is really a fanciful one which we submit was constructed after the fact and not the true motivating reason that the petitioner did not attempt to comply with the Act.

Chief Justice Earl Warren: Mr. Haft?

Argument of Robert J. Haft

Mr. Robert J. Haft: Mr. Chief Justice, may it please the Court.

I think that persons have not sort to apply for written order form or to pay the tax because the statute is so blatantly self-incriminatory that it would only be a mad man who would come to the Government and seek to fill out this order form.

I have read during the course of my argument the testimony of petitioner during the trial, that's at pages 86, 87 and 89 where he specifically said that he feared incrimination.

The part of the motion which the Government has read, I think that they have left out the very point, it was raised on page 651 of the transcript.

The Court erred in not dismissing or granting a judgment of acquittal as to the tax count because such tax requirement violates the Fifth Amendment privilege against self-incrimination.

It was raised at the District Court level.

The petitioner specifically testified as to his very real fear of the incrimination in the portions that I read yesterday.

Justice Abe Fortas: I beg your pardon.

How many cigarettes or whatever they call a marijuana would be made out of an ounce?

Mr. Robert J. Haft: I don't know, Mr. Justice Fortas.

I think the figure that I used yesterday was one pound yielded 1700 cigarettes; so that's roughly a 100 cigarettes an ounce.

Justice Abe Fortas: Well, would that mean that tax is just a cent on a cigarette?

Mr. Robert J. Haft: Yes.

That's the -- proper legal tax would be a dollar on the $100 an ounce.

I think what the Government is in essence asking here is that because Congress perhaps, having doubts about the constitutionality of an outright prohibition and because they wrote on a expressly tax measure rather than a prohibitory measure, if this Court feels that a prohibitory measure is constitutional, this Court ought to go ahead and rewrite the legislation.

That is -is completely the wrong position.

Going back to the presumption point of yesterday, in answer to Mr. Justice Stewart's question as to other adequate evidence of guilt which there clearly was, I pointed out that under the Court's decision in the United States against Romano, it would be sustained; that my position would be sustained.

In addition, I'd like to point out to the Court that on pages 102 to 104 of the record, in the charge to the jury, the district judge in practical effect limited the entire case to the trip from New York to Texas on the admission of acquisition by the defendant plus the statutory presumption and that's little of the case on the return back.

I think the charge is very clear.

It points almost exclusively to that one theory.

In the -last minute, I would like to make an application, Mr. Chief Justice and may it please the Court.

The next case, the Covington case raises just the tax issue.

We do feel and counsel for Covington does and the Government does not object, if the Court pleases, we do feel that the bulk of the argument on the taxing statute will come during the Covington argument and counsel for Covington is agreeable for permitting counsel for Leary to have some part of his time in arguing the further parts of the Marijuana Tax Act.

It would please the Court, we would like to split the argument to some extent on the Covington case.

Chief Justice Earl Warren: You may share his time if he is willing.

Mr. Robert J. Haft: Thank you.