MINOR v. UNITED STATES
Legal provision: Self-Incrimination
Argument of Phylis Skloot Bamberger
Chief Justice Warren E. Burger: Number 189 Minor against the United States.
Mrs. Bamberger you may proceed whenever you are ready.
Ms Phylis Skloot Bamberger: Thank you, Your Honor.
This case raises the question as to whether the petitioner’s right against self-incrimination is violated by compliance with Title 26 United States Code, Section 4705, and the regulations enacted by the Department of the Treasury pursuant to it.
That Section is the narcotics order form provision of the Harrison Act.
Petitioner’s position, one that is apparently not disputed by the Government, is that the order form procedure or scheme necessarily includes record keeping aspects and information keeping aspects, and that to a person such as petitioner, this must result in the disclosure of information which is available to law enforcement officers both state and federal and which can provide a link in the chain of criminal prosecution for violation of federal and state narcotics laws.
The facts in the case are simple.
There were two sales of heroin by the petitioner to a federal undercover narcotics agent.
The narcotics agent did not supply an order form to the petitioner for the sales, and the defendant was sentenced to the minimum mandatory term of five years on each count to run concurrently.
I think before a discussion of the legal question is involved -- comes up that we should discuss the scheme of the statute as it specifically relates to the order form provision.
A person who is registered to deal in narcotics and has paid an occupation tax can apply to the treasury department for order forms.
These order forms, a copy of which is printed as appendix C to the petitioner’s brief, comes in a book of ten which is in a book which looks like this.
The order form is what is called executed by the potential buyer of narcotics.
That is he puts his name and address on the order form and he lists the narcotics items that he would like to buy.
He then submits -- the form is issued in triplicate.
He then submits the original and the triplicate to the potential buyer.
The buyer must supply the order and on this order form, he must indicate the amount of drugs that he has supplied and the date on which he supplied them.
Prior to the time that this order form is given to the buyer, or at least at the time of the sale, the seller’s name and address must be entered on the front of the order form.
No provision makes clear who has the responsibility of filling in the seller’s name and address, but it is clear from regulation 151.185 that the seller does have the obligation of supplying on the order form the amount of narcotics that he sells and the date on which the sale is made.
The original and triplicate of the form are retained by the seller.
The duplicate is retained by the buyer of the narcotics.
One of the copies retained by the seller is sent to the Treasury Department.
He must keep the other copy in his possession for two years, and during that time, the order form is available for inspection by any federal or state law enforcement official.
The self-incrimination aspect of the order form obviously is that the seller himself must write on the order form the amount of narcotics that he supplies and the date upon which he supplied it.
That would give law enforcement officials information concerning violation of 21 U.S.C. Section 173, 174 which is the illegal importation of drugs.
The Section 4704 (a) which is the transfer of drugs outside of the original stamped package, of course there are violations of state statutes as well, and since this transaction took place in New York, it is important to know that the New York narcotic statute makes it a felony to deal in heroin of more than eighth of an ounce.
So that the order form provision would reveal to state officials that the petitioner in this case committed a felony as well as a crime.
Justice Potter Stewart: Where -- the order form is here in your appendix C to your brief?
Ms Phylis Skloot Bamberger: That’s correct.
Justice Potter Stewart: And the purchaser fills out presumably his name and all that information says to be filled in by purchaser, right?
Ms Phylis Skloot Bamberger: That’s right.
Justice Potter Stewart: And you say the vendor must fill in what, presumably?
Ms Phylis Skloot Bamberger: The last two columns in the middle section of the order form.
Justice Potter Stewart: To be filled in by the consignor.
Ms Phylis Skloot Bamberger: By the consignor which is the vendor under the scheme, and he would have to fill in a number of packages furnished and the date on which the packages were supplied.
And of course by reference, it would indicate that he did supply narcotics on the date and in the amount that he supplied them.
Justice Potter Stewart: He fills in a number of packages furnished and the date filled, it says?
Ms Phylis Skloot Bamberger: Right.
Justice Potter Stewart: And then does that show the amount, because it doesn’t say packages on this --
Ms Phylis Skloot Bamberger: Well, the number of packages would indicate the amount of the packages or by weight.
Justice Potter Stewart: By catalogue number over there in the left?
Ms Phylis Skloot Bamberger: Right.
Justice Potter Stewart: And then who signs it down there?
Name of person or firm?
Ms Phylis Skloot Bamberger: That would be the --
Justice Potter Stewart: If not an individual.
Ms Phylis Skloot Bamberger: -- the buyer would sign it, but the vendor’s name appears on it.
If I may direct Your Honor’s attention to the two lines just above the spaces for the drugs involving the transaction.
Justice Potter Stewart: Yes.
Ms Phylis Skloot Bamberger: It says to and street.
Justice Potter Stewart: That’s addressed to by the purchaser, right?
Ms Phylis Skloot Bamberger: That’s addressed to the seller.
Now, it is unclear who has to fill that information in.
There is no regulation or statute which indicates who fills that in or when it has to be filled in, but --
Justice Potter Stewart: But the preposition “to” is that means it’s directed to and this doesn’t mean it’s objective not subjective --
Ms Phylis Skloot Bamberger: Well, that’s true Your Honor, but even if it were to be filled in by the buyer of the narcotics, it wouldn’t make any difference because it would be the seller himself who would have to reveal the fact that he sold the narcotics and the date on which he sold it the number of packages that he furnished.
And regulation 151.185 specifically states that it is the vendor of the narcotics that must fill in that information, so that the form even assuming that the buyer of the narcotics would be the person to fill in the seller’s name.
The seller’s name would be revealed by the order form and the seller himself would have to supply information concerning the sale.
And that is sufficient in my understanding, the prior cases of this Court to reveal incriminatory information which could be used or could supply a sufficient link in a criminal prosecution.
Unknown Speaker: And still Mrs. Bamberger, it’s true that the identity of the seller, he has to fill in the quantity of stuff himself, and supplied by the purchaser not by seller, isn’t it?
Isn’t that the crucial thing from the standpoint of the case which you are relying on?
Ms Phylis Skloot Bamberger: I don’t think so Your Honor, because once -- if only the seller’s name were to appear on the form without any indication that a sale had actually taken place, there would be no incriminating information.
The incriminating information is the information that deals with the sale itself.
Unknown Speaker: Right.
But if the form reached some of the authority’s direction in some way with the information only the order form goes on the seller’s supplied and a lot of information without indicating any identity of the seller, isn’t it?
That’d be the only thing liable.
Ms Phylis Skloot Bamberger: Well, we have to assume Your Honor that the order form has been properly filled out.
Unknown Speaker: Yes.
Ms Phylis Skloot Bamberger: If --
Unknown Speaker: Filed by whom?
Ms Phylis Skloot Bamberger: Filed by the seller of the narcotics.
Unknown Speaker: That’s’ another -- that’s an independent requirement.
Ms Phylis Skloot Bamberger: Yes, it is.
Unknown Speaker: That he had filed?
Ms Phylis Skloot Bamberger: Yes.
He has to keep a copy and he has a second copy with the Treasury Department.
Unknown Speaker: He hasn’t been prosecuted for that isn’t he, for failing to file?
Ms Phylis Skloot Bamberger: In this case he is not being prosecuted for failing to file.
Unknown Speaker: He’s being prosecuted for selling without receiving an order form?
Ms Phylis Skloot Bamberger: That’s correct Your Honor, but once as the government concede, once the idea is established and that’s the thrust of our brief, a point which is not disputed by the Government that receiving the order form puts the obligation upon the buyer in the sale to give the required information -- the seller, right, in the sale to give the required information that the risk of self-incrimination comes into play.
Now, one of the Government’s arguments in its brief is that --
Unknown Speaker: Well, that might mean he couldn’t be prosecuted for failing to fill it out and file.
That doesn’t mean he can’t be prosecuted for and perhaps not getting order form at all?
Ms Phylis Skloot Bamberger: He could be -- now, I don’t know if I’m misunderstanding Your Honor, he could -- there are two instances.
Unknown Speaker: The law requires and not the seller about receiving an order form?
Ms Phylis Skloot Bamberger: That’s correct.
Unknown Speaker: And after he receives it, he is supposed to fill it up.
Ms Phylis Skloot Bamberger: That’s correct.
Unknown Speaker: And he is prosecuted for not receiving the order form alone?
Ms Phylis Skloot Bamberger: That’s correct.
Because once he receives the order from, he is under the --
Unknown Speaker: Receiving an order form doesn’t incriminate at all?
Ms Phylis Skloot Bamberger: No, but receiving the order form requires or puts the obligation on him to give the required information.
Once he has given that required information, he’s violated his right against self --
Unknown Speaker: -- incriminated anything except at all that he filed.
Ms Phylis Skloot Bamberger: Well, the information concerning the goods that are sold is also in the duplicate held by the buyer of the narcotics.
Unknown Speaker: (Inaudible)
Ms Phylis Skloot Bamberger: No, but the buyer has to hold it for two years and it is subject to the inspection of any state or federal law enforcement agent, so that even if a copy is not filed, the information would be available.
Justice Thurgood Marshall: But he’s charged with selling without filing.
The charge is selling.
Ms Phylis Skloot Bamberger: He’s charged with selling without an order form, that’s correct.
Justice Thurgood Marshall: And his only defense is that if he filed the order form, he’ll incriminate somebody.
Ms Phylis Skloot Bamberger: No, his defense is that because the statutory scheme -- because the receiving of the order form and the record keeping requirements associated with the order form must be treated as a unified scheme in order to carry out the purpose of Congress in enacting this statute that by receiving the order form, he is compelled to give the information and therefore he would be incriminating himself.
And under the Leary decision, the defendant does not have to initiate the actions which will ultimately result in self-incrimination.
Justice Thurgood Marshall: Well, he didn’t initiate.
He initiated the selling of the drug.
Ms Phylis Skloot Bamberger: Well, let --
Justice Thurgood Marshall: That was what he was doing.
Ms Phylis Skloot Bamberger: Let me change the language of that statement.
Under the language of Leary, the defendant does not have to begin the legal process i.e. obtaining in this case the order form which would ultimately result if he filed the scheme as intended by Congress in --
Justice Thurgood Marshall: Well, do I understand you that to obtain them would incriminate him?
Ms Phylis Skloot Bamberger: Yes, because then he would be obliged to give the information under the statutory scheme.
Now, if I could, maybe an explanation as to the scheme and the purpose of the scheme might be helpful here and that’s in our point C of our brief.
The Harrison Act was originally enacted as a taxing scheme in order to control the flow of narcotics and to assist the states in enforcing their narcotic statutes.
The scheme was enacted in 1914.
The order form provision was enacted as part of the scheme in order to assist the Government in collecting the taxes which it had imposed on narcotics transactions, and to avoid or to assist in determining of who was involving in narcotics transaction attempting to avoid payment of these taxes.
So that the order form provision is an integral part of the total scheme of the taxation and treated merely as a means for physically transferring the narcotics from the seller to the buyer.
It does not satisfy the statutory scheme.
The record keeping aspects of the order form provision are crucial in carrying out the scheme in order to help the Government collect its taxes, and in order to determine who is evading the tax provisions.
Now, on that theory which is we feel --
Justice Thurgood Marshall: Well let’s assume he had applied for the order form, period.
Ms Phylis Skloot Bamberger: Assuming he asked the Government agent for the order form, he would --
Justice Thurgood Marshall: Period, that’s all.
Could he be convicted of anything?
Ms Phylis Skloot Bamberger: Just saying --
Justice Thurgood Marshall: That’s right.
Ms Phylis Skloot Bamberger: Without making any sale?
Justice Thurgood Marshall: That’s right.
Ms Phylis Skloot Bamberger: No.
Justice Thurgood Marshall: But if he applies for the order form and makes the sale, then what happens?
Ms Phylis Skloot Bamberger: If he applies for the order form and doesn’t get it and makes the sale, then he is prosecuted under Section 4705.
Justice Thurgood Marshall: And what rights have been violated there?
Ms Phylis Skloot Bamberger: The same right that if he got the order form, he would be compelled to give the information which would incriminate him on --
Justice Thurgood Marshall: Would he be even charged with not filling out the form, or charged with selling without it?
What would he be charged with?
Ms Phylis Skloot Bamberger: He would most likely be charged with making the sale without the form.
It seems to me that failure to fill out the form, the statute would come into play only if he acts for and received the order form and failed in some way to supply the information.
But it doesn’t make-- our theory of the case -- under our theory of the case, it doesn’t make any difference because under either section, he would be prosecuted for not giving the information and therefore being forced, if he did give the information, to incriminate himself.
Justice Thurgood Marshall: Well, if he were not in the business and was contemplating going in business and got the form, how could he be incriminated because he might change his mind and not go into business.
Ms Phylis Skloot Bamberger: Well, this Court has, I think, already answered that question in the Marchetti series of cases, in which they said that -- well, in the Marchetti case in which the Government’s argument was that a person who gets his registers under the gambling tax statute can always choose not to become a gambler, and therefore he wouldn’t be incriminated himself.
This Court rejected that theory that didn’t have to be his choice.
His choice was not to incriminate himself or not to violate the law.
Justice Thurgood Marshall: I think maybe I didn’t make myself clear.
He is thinking about changing his business from gambling to selling dope so he applies for the blank, and after he applies to the blank, people who have learned their lessons say, “Man that’s not the business to get into.”
And that’s -- he decides not to buy any dope and not to sell any dope.
Has he been injured?
Ms Phylis Skloot Bamberger: Well, --
Justice Thurgood Marshall: Has he committed any crime?
Ms Phylis Skloot Bamberger: As a matter of the scheme, he would not be applying for the order form.
His buyer would be -- or the person would buy from him would be applying for the order form.
Justice Thurgood Marshall: Well, they both don’t decide not to go into business.
The buyer decides to quit and the seller decides not to sell.
He’s not incriminated, is he?
Ms Phylis Skloot Bamberger: Well, I have -- one difficulty with the question and that --
Justice Thurgood Marshall: No, my whole point is just the picking up of this the order blank, that’s the part I have trouble with that that in and of itself is self-incriminating.
That’s the only point.
Ms Phylis Skloot Bamberger: That in and of itself is self-incriminatory because he is then obliged to reveal the information concerning a sale.
Now, if he commits no sale, I think that was the thrust of Your Honor’s question, he would not under those circumstances, be obliged to give any information because he made no sale.
And I think that in that case he would not incriminate himself.
Justice Thurgood Marshall: Well, now the difference between that in this case?
Ms Phylis Skloot Bamberger: In this case, he made a sale.
Justice Thurgood Marshall: But he didn’t order the blank either.
Ms Phylis Skloot Bamberger: And he -- the blank was not offered to him nor did he request it.
Justice Thurgood Marshall: Yes.
Ms Phylis Skloot Bamberger: But it’s our position that he did not have to request it in the first instance, because had he done so and had he received it, he would have been obliged to fill it out, and he would have incriminated himself. Since that obligation would have been thrust on him had he received it, our argument is that he does not have to take that risk as this Court has stated in Leary by even asking for in the first place.
In the Leary case, this Court held that Leary did not even have to go to try to register because the Government’s position in Leary was that if Leary had gone to try to register so that he could buy marihuana, nobody would’ve known that he would’ve -- that he was revealing information because he wouldn’t have been permitted to register and nobody would’ve seen the form.
But this Court stated in Leary, that Leary didn’t even have to go through the steps of beginning his registration because that might have subjected him under the statutory scheme as it was intended by Congress to function to the risk of having to supply that information.
And I think that the Leary case directly covers the question that Your Honor has asked here.
He does not have to begin the process because to begin it would thrust the obligation on him to supply that information.
The -- I might also add that the decisions of this Court treat the order form provision as an inherent part of the taxing scheme in addition to the legislative history treating it that way.
One of the -- another problem in this case is whether the statute was directed to those inherently suspect of criminal activities.
This was a question which was raised by the Circuit in its opinion.
Once again, I believe that the Leary decision, the reasoning in the Leary decision, covers that problem in this case too.
The Court held in Leary that those who could register to deal in marihuana would do so, because if they didn’t register they would be acting illegally and the penalties were quite severe.
Therefore, this Court was willing to assume that everybody who could register would register, and that the only people who would be faced with the self-incrimination problem would be the people who could not register, and therefore you would have a distinct class of people involved in criminal activities that the self-incrimination problem would be directed to.
This point is apparently not disputed by the Government because on page 11 in its brief, the Government states that anybody who could register under state law would also -- well, nobody could register under federal law, unless they were permitted to register under state law.
Thus, we have the assumption that everybody who could register would register and falls within the Leary reasoning.
Of course, this case deals with heroin.
Since under the statutes of relating to narcotics as they are presently constituted, there is no legal dealing in heroin.
Therefore, the application of this statute to any heroin transaction automatically results in the application of it to a class of individuals that is suspect of criminal activities.
The Government in its brief indicates that to avoid violation, and I think this goes back to Mr. Justice Marshall’s question, to avoid violation you don’t -- the defendant need not act.
I think that reasoning was put to rest by this Court in Marchetti where the Government argued that he need not gamble once he’s -- the defendant need not gamble once he has registered.
The Court said that that is not true where if he complies with the statute, he would reveal information which would subject him to criminal penalties under on other sections.
And I think that the same reasoning applies to this case.
Justice Potter Stewart: Come to think of that reasoning would apply to this case, only if there were federal statute that required some seller who sold somebody narcotics without receiving an order form to report that fact.
That’s the missing link in this case, isn’t it?
Ms Phylis Skloot Bamberger: I don’t think so Your Honor, because then conceivably if the Government could find out that he made such a sale which they often do with the use of undercover narcotics agents, they could prosecute him under Section 21 U.S.C. Section 173-174.
Justice Potter Stewart: Now, what’s that one?
Ms Phylis Skloot Bamberger: That’s the illegal importation of -- well, consuming, facilitation and possession of narcotics that have been imported with knowledge that they’ve been imported, and possession gives rise to the presumption of knowledge and importation.
Of course the defendant could also have been prosecuted under the state statutes.
Chief Justice Warren E. Burger: But we can’t get at that until we have such a case, can we?
Ms Phylis Skloot Bamberger: No, but it’s an answer to the question.
Chief Justice Warren E. Burger: Well, you’re speculation on a future possibility which isn’t before us today.
Ms Phylis Skloot Bamberger: I would like to reserve the remainder of my time for rebuttal.
Chief Justice Warren E. Burger: Thank you Mrs. Bamberger.
Argument of Peter L. Strauss
Mr. Peter L. Strauss: Mr. Chief Justice and may it please the Court.
I think petitioner’s arguments rest on an assumption which is demonstrably false, and which it seems to me has informed much of the questioning during that time of her argument.
That is to say, the assumption that petitioner had an opportunity to provide the Government with incriminating information, and then declined to do so in order to protect his Fifth Amendment right.
Such arguments could be entertained only with the order forms for which Section 4705 (a) provides are actually received by the seller of narcotic drugs.
It is clear from the Government’s proof in this case, proof entirely independent of anything that petitioner said, or any information that he may have provided to the Government.
It’s clear from that proof that petitioner received no order form from the purchaser, a government agent.
As a matter of fact, it is clear from the statutory scheme as a matter of law that neither petitioner nor anyone willing to purchase narcotics from him could lawfully have obtained order forms for that purpose.
In these circumstances, it is entirely premature to ask what Fifth Amendment question might be raised in a case where an order form is actually presented and an obligation to disclose than arises.
I think --
Justice Potter Stewart: That criminal sanction behind it if there is a sale --
Mr. Peter L. Strauss: Yes, there is --
Justice Potter Stewart: -- on a presentation of an order form, then there’s an obligation upon the seller to keep one copy of the form for a period time, and to send another one in --
Mr. Peter L. Strauss: That’s right.
Justice Potter Stewart: -- and is that does enforceable through a criminal sanction?
Mr. Peter L. Strauss: It is.
Justice Potter Stewart: It is.
Mr. Peter L. Strauss: Through the criminal sanction among others of 26 U.S. Code, Section 7203 which punishes generally any failure to conform to the reporting requirements of federal tax law.
It is not punishable under Section 4705 (a).
Justice Potter Stewart: No.
Mr. Peter L. Strauss: And never has been punished under that section.
And of course, penalties as this Court recognizes or widely disparate Section 4705 (a) is the most severe of federal narcotics violations.
Section 7203 states a misdemeanor.
We are dealing with entirely separate types of things and what I hope to do is to persuade the Court that these two different forms, if you like putting of a two-step procedure.
First, receive and order form.
Second, provide some information on that form.
Each step serves an important function in the course of federal narcotics regulation.
In these circumstances, as we say, it is entirely premature to ask what Fifth Amendment question might be raised if an order form is actually presented.
The requirement that in the first instance in order form be received is independent and neither that requirement nor petitioner’s prosecution for its violation raises any question of self-incrimination.
That in brief is the Government’s case.
The Fifth Amendment provides and I quote “that no person shall be compelled in any criminal case to be a witness against himself.”
Until petitioner receives an order form, he is under no pressure whatever to give any information of any kind to the Government.
The only pressure is the statutory command enforced by a criminal prosecution, in this case that he not sells.
Thus, the Government has not as petitioner had suggested it had abandoned its contention that the obligation to receive an order form is distinct from the obligation to report and retain certain types of information and for that matter to refrain from fraudulent use of order forms.
Obligations which are imposed by other parts of Section 4705 and by federal income tax law generally.
Of course, the obligations don’t stop with receipt of the form.
Once an individual in a narcotics sale has received the form, then the further obligation does arise to report.
That’s a different case.
That’s the case that isn’t here.
Unknown Speaker: What exactly is the form?
Mr. Peter L. Strauss: Excuse me, Your Honor?
Unknown Speaker: What exactly is the form are you receiving?
Mr. Peter L. Strauss: The form is the form set out in the appendix to petitioner’s brief as appendix C which provides for a statement by the purchaser as to what kind of drugs he wants and how much.
Has a place for the purchaser’s name and for his signature.
It is to be addressed to a particular seller.
Has a place for the seller to fill in, what drugs he has sold and on what date.
And they say simply to fill in some questions that were raised during petitioner’s statement, two factors concerning the form.
The form is not issued in blank.
By statute, Section 4705 (f), before the secretary may issue the form, he must cause to be stamped on it the name of the purchaser, and again by statute Section 4705 (g), it is a felony --
Unknown Speaker: You send that form to someone.
Mr. Peter L. Strauss: To the purchaser, Your Honor.
Unknown Speaker: Which requires him to tell whether he has to purchase something, is that what you’re saying?
Mr. Peter L. Strauss: No, Your Honor.
In someone wishing to purchase narcotics, someone who must be a lawful registrant by statute, applies to the Secretary of Treasury to get a book of these forms.
They come in a book of ten.
When the Secretary of the Treasury issues the forms, before issuing them, he stamps the name of the purchaser on the form, so that it’s not a book of blank forms, it’s a book of forms which only, let’s say the dark drug company can use.
The dark drug company may have legitimate need to purchase narcotics for medical use.
It applies for a book of these forms, and will receive ten forms and they will be stamped dark drug company.
And it is then a felony for any other person to use those forms.
They’re available only to a specific purchaser.
When the purchaser wishes to make a purchase of narcotics, he fills out in triplicate this form indicating what he wishes to purchase and he may or may not fill in the name of the seller as I understand it, and that is entirely voluntary with him.
Obviously, he will put the name of the seller some place on an envelope for example, in which he may send the order, or he may write a covering letter but there is no obligation that he fill in the name of the seller.
It is sent to the seller and if the seller’s name is not filled in, then the seller must among other things, provide his name as well as the confirming information about what drugs had been sold.
Chief Justice Warren E. Burger: And the quantity?
Mr. Peter L. Strauss: And the quantity, the confirming information, that’s right.
Drugs have been sold in the quantity, but the point that I --
Unknown Speaker: I take that there’re some buyers who could really get order forms and present them for selling.
Mr. Peter L. Strauss: That’s right, 400,000.
Unknown Speaker: And there are some situations in which sellers would put in legally and without incriminating himself, fill out the forms for filing.
Mr. Peter L. Strauss: Approximately 200,000 executed triplicates are received by the Secretary of Treasury each month in fiscal year 1967, only four persons entitled to use order forms were convicted of narcotics offenses.
Unknown Speaker: There are people who can get order forms.
Mr. Peter L. Strauss: The very overwhelming majority of transactions where order forms are used are legal.
And that indeed is our point.
Justice Potter Stewart: I quite misunderstood the situation and factually.
I thought that there was absolutely no legal traffic in heroin whatsoever in --
Mr. Peter L. Strauss: Oh, I’m speaking of narcotics generally, I’m sorry.
Justice Potter Stewart: We’re talking about heroin in this case, I thought.
Mr. Peter L. Strauss: I’m sorry.
We weren’t talking about -- I was treating it as the Harrison Narcotics Act.
There is no one who could obtain an order form for heroin.
Justice Potter Stewart: Take the outlaw, illegal dealings and whatever in the United States of America, that’s what I thought.
Mr. Peter L. Strauss: Not quite, the Secretary of Treasury is in a position to authorize --
Justice Potter Stewart: Well, for experimental purposes (Voice Overlap) registration.
Mr. Peter L. Strauss: There are no legal purchases.
All experimental uses at this time are carried on with the stocks that the Secretary has procedures.
You’re correct so far as heroin as concerned, but this is part of a larger statutory scheme.
Justice Potter Stewart: Right.
Mr. Peter L. Strauss: And this statute does not distinguish as to heroin.
Unknown Speaker: But it requires him to make a report with reference to heroin at that?
Mr. Peter L. Strauss: No, Your Honor it does not.
Unknown Speaker: Okay.
Mr. Peter L. Strauss: Because under the statute, it is impossible to secure an order form with -- for the purchase of heroin.
It is a felony to use an order form to purchase heroin for the purchaser.
Order forms may only be used to purchase a lawful drug for a lawful purpose.
Heroin is an unlawful drug for which there is no lawful purchase -- no lawful purpose, excuse me.
So it’s a felony to obtain or use an order form for the purpose of purchasing heroin, and now it maybe that in some obscure situation this could somehow happen, 40 of the roughly 2,400,000 order forms that were used in 1967 were stolen approximately.
Unknown Speaker: What?
Mr. Peter L. Strauss: Stolen.
There were 40 forms stolen and it is conceivable that somewhere, someone having stolen an order form which was not issued to his name and which was therefore a felony for him to use filled in something with respect to heroin and handed it to someone who sold him some heroin.
The Government’s point in that situation is that whatever violations of federal statutes may have been involved there was no violation of the statute here in issue.
The statute here at issue, Section 4705 (a) only punishes the situation where someone makes a sale without receiving an order form, and again if I may say --
Unknown Speaker: Just the sale of heroin?
Mr. Peter L. Strauss: Or any other narcotic drug.
The statute does not limit to heroin.
It’s limited to --
Unknown Speaker: I know, but it does include heroin.
Mr. Peter L. Strauss: It includes heroin, that’s right.
Unknown Speaker: Even though if in fact, this order form was able to use and completed everything else?
The subject being heroin, he might have been prosecuted under what?
Mr. Peter L. Strauss: He might have been -- the purchaser could have been prosecuted under Section 4705 (g) for fraudulent use of an order form.
The seller could certainly be prosecuted under the various statutes that make possession of heroin an offense, Section 174, Title 21 and Section 4704, Title 26 since quite clearly there would be not tax stamps on that package of heroin which had been sold, but there could be no prosecution under Section 4705 (a).
I do think it’s important to indicate what the separate function of this requirement that you receive in order form in --
Unknown Speaker: Is it the Government’s practice to prosecute these heroin sales where no order form is used under 4705 (a)?
Mr. Peter L. Strauss: Since 1956 when the penalty provisions of the Harrison Narcotics Act were amended to differentiate among the various offenses and the penalty for violation of Section 4705 (a) was made more severe than the others.
The practice has been to use Section 4705 (a) for all illegal trafficking, peddling of all narcotic drugs including heroin.
Unknown Speaker: But I take it you already told us even if they had used the order form, nevertheless, both purchaser and seller could’ve been prosecuted for other offenses.
Mr. Peter L. Strauss: For other offenses.
Unknown Speaker: Now, what do they add, what s the practice of adding in the way of other counts when they prosecute a heroin sale without an order form under 4705 (a), what others to they add?
Mr. Peter L. Strauss: I think it varies from case to case.
They do add on occasion counts under Section 4704 --
Unknown Speaker: They added something here, as I recall it.
There was another one was it? It was another count in this case?
Mr. Peter L. Strauss: Which was I think dismissed, I don’t --
Unknown Speaker: Oh, is that right, I see.
Mr. Peter L. Strauss: I don’t recall what it was.
There is no conviction on the --
Unknown Speaker: But there is a practice, isn’t not?
Mr. Peter L. Strauss: There is very often and I may say that that is another issue.
It may be an issue that the Court wishes to examine.
It’s not an issue, I think presented by the petition in this case.
Unknown Speaker: What if seller received an order form and then failed to fill it out but made the sale, could he be prosecuted under 4705?
Mr. Peter L. Strauss: Not under 470 -- no, not under 4705.
The purchaser could be prosecuted under 4705 (g).
Unknown Speaker: Yes, but not the --
Mr. Peter L. Strauss: But not the seller.
Unknown Speaker: But not the Section that is used here against the seller.
Mr. Peter L. Strauss: No, no.
The seller could only be prosecuted for failure to file the requisite forms under Section 7203 of the Internal Revenue Code, and that really brings up the two different functions that this statute serves and I do have to talk about the Harrison Act generally in this situation.
We have on the one side the channel of legitimate trade in narcotic drugs.
Narcotic drugs while they are very dangerous to individuals, addictive, still have important medical uses.
And thousands of pounds, hundreds of thousands of pounds of opium are imported into this country legally every year for manufacture into various drugs, not including heroin, and use in medical trade.
Those legally imported drugs are supervised from the moment of entry into the United States to the moment of their consumption by use of the reports made on triplicates by the hundreds of thousands of legal users of narcotic drugs every month.
That is the function, if you like, of the reporting aspect of the order form requirement.
The function of the receipt aspect of the order form requirement which we’re talking about here is quite different.
By requiring that you receive an order form, the Government is in effect saying there shall be not sales but legal sales.
You can only obtain an order form lawfully to use in a narcotics transaction and you can only use the order form lawfully if the sale is a legal one under federal law.
That being the case, the absence of an order form, the failure to receive an order form if the Government can prove it in any narcotics case, is immediate proof that the sale was an illegal one.
And it is that separate function which petitioner seeks to affiliate to the question of information gathering, and thus draw a conjurer circle around him self.
And if I may repeat that phrase that Justice Holmes use so long ago.
I think that it could then be quite clear that this case is not in the line of cases which begun in this Court with Albertson versus Subversive Activities Control Board, those cases held in effect that the Fifth Amendment forbids statutes whose usual impact is to make a separate crime out of an individuals failure to report his criminal acts to the Government.
Here, the violation of the statute consists not in failure to report, but in the positive act of selling narcotics to a person who has not proved his eligibility as a legal purchaser by presentation of an official order form for the narcotics brought.
The question of reporting, as I’ve just said, never arises in that context, because order forms cannot be obtained.
It’s only after an order form has been presented in circumstances not present here, and in which the overwhelming majority of transactions are entirely legal that any such question arises.
And I may say Justice Stewart, in response to the remarks that you made before about this being heroin and to that extent the heroin statute, in the processing of these forms, there is no particular distinction made as to what drug is reported on them.
There’s no different color for an order form that might be used for one drug, then for another there’s no different filing system.
The form is part, and I think the Government is entitled to insist that it be treated as part of the overall federal scheme of regulating traffic in narcotic drugs.
Justice Potter Stewart: Who fills in, on the form, who fills in the items thereby number, catalogue number, and so on?
Mr. Peter L. Strauss: Well, it varies as I understand it before.
Justice Potter Stewart: The applicant?
Mr. Peter L. Strauss: The applicant fills in the left hand 1, 2, 3, 4 columns.
The consignor fills in the right two columns.
Justice Potter Stewart: Yes, but I’m talking about the left hand.
Mr. Peter L. Strauss: Yes, the secretary --
Justice Potter Stewart: Consignor is the vendor, the seller.
Mr. Peter L. Strauss: That’s correct.
Justice Potter Stewart: Right.
Unknown Speaker: Did you say earlier that all traffic in heroin is illegal to anybody?
Mr. Peter L. Strauss: That is essentially true.
There are circumstances in which the Secretary of Treasury authorizes the release for experimental purposes, but with that exception --
Unknown Speaker: It’s not included in narcotic drugs as defined in Section 4731?
Mr. Peter L. Strauss: It is subject to regulation under the Act, Your Honor, but it is not -- while subject to regulation under the Act, through other acts, it is may the drug which cannot be legally obtained.
I think one of the principal acts for example, is the Narcotics Manufacturing Act of 1960 which established a federal system of licensing narcotics manufacture.
I’m afraid it’s not set out in the brief?
Unknown Speaker: No, it’s not I wasn’t able to --
Mr. Peter L. Strauss: It would be found at 21 United States Code, Section 500 and following, and licensing provisions are Section 505 and 506.
In Section 502, you’ll find a list of legally manufacturable drugs which do not include heroin and it’s sought.
So that there can be no federal license for manufacturing heroin in the United States as the law presently stands.
Under the Harrison Act, Section 173 of Title 21, it is unlawful to import crude opium for the purpose of manufacturing heroin.
Justice Potter Stewart: I think you perhaps didn’t have the opportunity to fully answer my question.
When the applicant sends this in, as I understood it, you said that the applicant --
Mr. Peter L. Strauss: Sends it to the seller.
Justice Potter Stewart: Yes -- no, no.
When the applicant sends in and applies for an order form to the Treasury Department.
Mr. Peter L. Strauss: Oh!
This is not this form.
To apply for an order form it’s not this form at all.
Justice Potter Stewart: I see.
This is what he gets back?
Mr. Peter L. Strauss: It’s an entirely different form.
Counsel has a copy of it here.
It is a regular printed form.
Justice Potter Stewart: Application form.
Mr. Peter L. Strauss: Application form for number of order forms.
Justice Potter Stewart: And now, does he indicate on that what the drugs he wants to purchase?
Mr. Peter L. Strauss: No there is not indication.
All that’s necessary to indicate is his name and his registration number.
There are limitations under the regulations, unless he is a manufacturer or a wholesaler, he can not obtain more than ten one book at a time.
Unknown Speaker: From what you told me, there will be no order form for heroin because all sales would be prohibited unless license by the secretary?
Mr. Peter L. Strauss: No.
Under Section 4705 (g) Your Honor, law of order forms can be used only for a lawful purpose.
It’s a felony to use the order form for an unlawful purpose.
Unknown Speaker: Well, it’s a -- I say yes.
Mr. Peter L. Strauss: You can obtain an order.
You don’t have to tell the Secretary of Treasury what you want the order form for.
If you were the dark drug company, you would have a stock of order forms in your office, or you could obtain order forms.
You wouldn’t commit the felony until you wrote down on the order form that you wish to buy five envelopes of heroin and attempted to use the order form for that purpose, which is an unlawful purpose.
Unknown Speaker: Well, the order form is irrelevant then in your analysis to this little problem?
Mr. Peter L. Strauss: Yes, the order form is -- except what is relevant is whether or not the order was received or not.
In Nigro, this Court talked about the order form as a kind of certificate of the legality of the transaction, and it seems --
Unknown Speaker: Well, the whole thing is illegal.
I don’t see how order form has anything to do with it?
Mr. Peter L. Strauss: It is -- I agree that it is perhaps more cumbersome that Congress need have done, there’s simply a means of identifying the illegal transaction.
Since there will be no order forms used for heroin, any transaction in heroin necessarily, will have an order form missing.
Justice Potter Stewart: And if there were an order form it would be a violation of the law and the part of the purchaser.
Mr. Peter L. Strauss: That is correct.
If there were an order form that was filled out for heroin that would be a violation of law.
That is correct.
Justice William O. Douglas: That’d be a violation of what
Mr. Peter L. Strauss: Section 4705 (g) which is not at issue in this case.
I think some notion of the distance between this statute and the statutes that were involved Albertson, Marchetti, Grosso, Haynes, and Leary can be obtained by a closer view of the classes subject to the provisions involved in those cases.
In Albertson, the statute involved made it an offense for administratively identified members of the Communist Party not to register as such.
Marchetti and Grosso involved the obligation of persons to identify themselves as professional gamblers, outlawed in 49 states.
As this Court interpreted the statute at issue in Haynes, that case required registration in circumstances which almost always would establish prior criminal conduct.
In Leary and Covington last term, the petitioners were obliged by payment of an extraordinary tax, $100.00 per ounce to identify themselves as members of an entirely criminal class.
In each of these cases it was not only the petitioner but all or virtually all persons subject to the requirement in issue who had engaged in criminal conduct and thus ran the risk of incriminating themselves if they did what the Government commanded.
Unknown Speaker: May I ask you a question?
Mr. Peter L. Strauss: Surely, sir.
Unknown Speaker: In connection about your answer to Justice Douglas.
I understood you to say that the order from the secretary is irrelevant?
Mr. Peter L. Strauss: For the purpose of prosecuting this case, and for the purpose of Section 4705 (a) case is generally, the only thing which is relevant about the order form is whether it is received or not.
Any information that it may have on it, any information that may later be put on it is irrelevant.
Unknown Speaker: Now the indictment charges that the defendant unlawfully, willfully, and knowing he did sell, barter, exchange and give away to Gozon approximately 19,500 grams of heroin hydrochloride, a narcotic drug, and that the said sale, barter, exchange and giving away was not in pursuant for the written order of the said Francisco H. Gozon on a form issued in blank for that purpose by the Secretary of the Treasury of the United States or his delegate.
What does that mean?
Mr. Peter L. Strauss: Well, I think that’s entirely consistent with what I’ve just said, Your Honor.
These forms are issued in blank for the purpose of engaging in lawful transactions --
Unknown Speaker: But not for the purpose of engaging in the purchase of heroin?
That’s what you told me.
Mr. Peter L. Strauss: Your Honor, the Secretary of Treasury does not know what purpose they will be used for when --
Unknown Speaker: But I understood you to tell Justice Douglas that that was wholly irrelevant because he couldn’t issue one for the purchase of heroin.
Mr. Peter L. Strauss: No, I think I’d been misunderstood.
The form could not legally be used for the purchase of heroin.
Unknown Speaker: Could not legally be used?
Mr. Peter L. Strauss: That is correct.
Unknown Speaker: Well then, and if he used them, he would show that he’s violating the law, wouldn’t he?
Mr. Peter L. Strauss: The purchaser would.
Unknown Speaker: What about your prosecuting the other seller, aren’t you?
Mr. Peter L. Strauss: I’m prosecuting the seller.
Unknown Speaker: And you say however the only the purchaser could be prosecuted, but you’re prosecuting the seller.
Mr. Peter L. Strauss: No, Your Honor.
Unknown Speaker: Only the man who did it without this order of the Secretary of the Treasury or whatever he is.
Mr. Peter L. Strauss: If someone attempted to use an order form to purchase heroin, situation which to my knowledge has never occurred.
If someone attempted to do that, he would be guilty of misuse of an order form which is a felony under Section 4705 (g) of the statute.
And it’s an entirely separate thing to say that if someone sells a narcotic drug including heroin without receiving any order form at all, he is guilty of a felony under another section of the statute, Section 4705 (a) and that case is what we have in issue here today.
Chief Justice Warren E. Burger: Mr. Strauss, you may proceed.
Mr. Peter L. Strauss: Thank you, Mr. Chief Justice.
I thought all I would do in the few minutes that remain since there had been some possibly some confusion on the subject, and I think I may have contributed to it, to go through again the procedures by which persons may lawfully obtain narcotic drugs.
And I think the appropriate place to start is with the obligation --
Unknown Speaker: Would you mind to name it, the distinguishing between narcotic drugs and heroin?
Mr. Peter L. Strauss: The statute does not do so Your Honor.
Unknown Speaker: I understand it doesn’t, but this case is heroin.
Mr. Peter L. Strauss: That’s right.
One of the narcotic drugs under the statute, and I think the Government is entitled to treat it as such.
It shares all relevant characteristics with those other drugs.
A determination has been made that it has no lawful medical use on the basis of that determination of the federal statute -- under the federal statute for licensing the manufacture of narcotic drugs.
There is no license for the manufacture of heroin.
Under the federal statute regulating the importation of the raw materials of narcotic drug, you may not import materials for the purpose of making heroin.
But aside from those particular restrictions based on that particular Congressional finding, the drug is treated as all other drugs under the scheme.
Section 4721 and 22 imposed the obligation to register in the particular circumstances we’re talking about, probably the relevant obligation as to register as a wholesaler or as a retailer of narcotic drugs, and those sections made quite clear that the only person who may register are persons lawfully entitled to sell narcotic drugs.
That is persons who would violate no law of the state if they sold narcotic drugs generally.
Once a person has registered and only in that circumstance, as provided by Section 4705 (f), he may apply to the Secretary of Treasury to obtain blank order forms, ten to a book, with which to purchase narcotic drugs from the licensed manufacturers of those drugs.
The order forms are issued to him entirely in blank with one exception.
His name and address are stamped on it by the secretary.
There is no requirement that he identify what drugs he means to purchase or how many.
Obviously that would be impractical, as I mentioned before, there are 400,000 registrants under this Act.
There are well over 2 million transactions annually using order forms.
Obviously, they asked someone to sit down and pass on and record each effort to obtain permission, to make a purchase of such and such a narcotic drug would be an impractical and unnecessary thing which Congress has chosen not to do.
The lawful purchaser then receives these order forms in blank when he has occasion to make the purchase of any drug, he fills it out in the manner that you can see in appendix C of petitioner’s brief, and sends it to the seller.
He may or may not put the seller’s name in.
That’s not important if he doesn’t do so then the lawful seller will do so.
It is I think, worthy of note that if he uses that order form for an unlawful purpose which would include the purchase of a drug he’s not lawfully entitled to purchase, heroin, he would be committing a felony under Section 4705 (g) which is not a provision in issue again in this case.
When the seller receives that form, it is I would say in all cases, if you were to put to me a hypothetical in which the seller received the form calling for the purchase of heroin which is physically possible.
A purchaser could write in heroin on the form, I would have to respond yes.
That is conceivable although we don’t know it’s ever happened, so I can say at least in all but the very remotest of situations, when he receives that order form, it is a certificate that the transaction that’s about to take place is a legal transaction and it serves that important function in its absence.
One knows that the transaction which has taken place is an illegal transaction and that without need for any information on the part of the seller of any type.
That is the Government’s case.
We believe the judgment below should be affirmed.
Chief Justice Warren E. Burger: Mrs. Bamberger.
Rebuttal of Phylis Skloot Bamberger
Ms Phylis Skloot Bamberger: Thank you, Your Honor.
I will address briefly to three questions which were raised in the argument.
First, Mr. Justice Stewart spoke of a missing link.
I would suggest that in this case while the statute is not identical to those of the prior cases in this area.
The difference is not material and should not be dispositive, because Leary assumes that the statute will function as it was intended to do by Congress.
To do that or to interpret that statute in any other way or to apply it in any other way, undermines the rules of -- that were established with respect to the Fifth Amendment in the series of cases prior to this.
So we come to determine what -- how that missing link affects these rights.
It is our position that the Fifth Amendment right is the same here as it has been in prior cases.
Although the very words of the Section which provide the criminal penalty do not include the provisions requiring the information, the rest of the statute requires the incriminatory information and on the congressional scheme, it must be interpreted as a whole.
Thus, if the defendant receives the order form as has been stated by the Government, he must give the information.
His position then is no different if he doesn’t ask for it with the knowledge that if he receives it, he will have to supply the incriminating information.
He merely can stop, as this Court has said previously at the initial stages of the proceeding, rather than waiting until other statutes come in to play in a different factual context.
The Government has indicated in its argument that the application of the order form procedure to the heroin transaction.
The order form procedure has its purpose the disclosure of information as applied to the heroin transaction.
This must always result in the disclosure of incriminating information as to the seller.
We are not concerned here with the purchaser.
The effect of Section 4705 is to give the transaction an appearance of legality.
Since it says that a sale can be made with an order form, while the provision -- while the sale may be illegal under other sections that is precisely the problem raised by falling into 4705 (a).
The transaction appears to be legal and complying with it appears to make it justifiable and legal at the same time complying with it reveals the violations of the other statutes which would be violated by heroin transaction.
Again I can only indicate that the missing link is not substantial because compliance in the receipt of the order form cannot be separated because of the congressional intent with the statute from the information giving aspects of the statute.
Even though another statute may come into play in a different factual context, and that other statute may also violate the Fifth Amendment, this statute does too if we look at the full implications of compliance with it.
Chief Justice Warren E. Burger: et me put a hypothetical question to you, Mrs. Bamberger.
Suppose a state decided to simplify its procedures, and perhaps this hypothetical is too simplistic but let’s try it.
Simplify its procedures for admission of lawyers from other states who moved into the state in question and said that admission to the bar could be obtained upon filing a certificate by the applicant that he was admitted a bar in some other state giving the date of his admission of the details.
The man wants to practice in this state, but he hasn’t had time to go to law school and he doesn’t want to take the trouble and so he just -- but he’s determined to practice law there.
Now, he says he’s confronted with the choice of either committing perjury by filing a false certificate that he submitted in Florida or Georgia, or not engaging in practice of law at all.
Would you think that that kind of a statute poses these problems?
Ms Phylis Skloot Bamberger: No, I don’t Your Honor, because that statute does not make his -- does not give his act in appearance of legality by indicating that he has violated some other statute.
If he were to file such an affidavit, he would be practicing law illegally because it had not been properly admitted.
But it wouldn’t, the statute itself would not compel him to reveal information which would violate another statute, which would indicate a violation of another statute.
Chief Justice Warren E. Burger: But it confronts him with the choice that either not being able to practice law in that state or committing perjury in order to get this simplified overnight admission.
Ms Phylis Skloot Bamberger: Yes, but that’s not this case where it permits him make the sale, if he reveals information which would indicate a violation of other statutes.
Chief Justice Warren E. Burger: Thank you.
The case is submitted.
Mrs. Bamberger you acted at --
Argument of David A. Diamond
Chief Justice Warren E. Burger: Number 271, Buie against the United States.
You may proceed whenever you're ready Mr. Diamond.
Mr. David A. Diamond: May it please the Court.
This case concerns the application of the privilege against self-incrimination as developed in the Marchetti, Grosso and Haynes and most recently, the Leary case, to the situation of a transferor of marihuana pursuant to the transfer, order form requirements of the Marihuana Tax Statutes.
Briefly, the facts of this case are that the petitioner was introduced by a friend to two federal narcotics agents acting in an under cover capacity.
He had no -- they had no knowledge of his existence prior to the introduction.
They were introduced to him simply as Mike, the petitioner's first name.
As a result of the introduction there were various sales of marihuana and marihuana drugs.
The sales were made not in pursuance of an order form issued by the treasurer of the United States as required by 26 U.S.C. Section 4742.
Petitioner did not request an order form from the agents, the agents had not procured such an order form.
Petitioner was indicted on three counts, two of which were selling, not in pursuance of an order form and was convicted on one count, not selling pursuant to an order form.
The case was affirmed by the Second Circuit relying solely on United States against Minor.
The Second Circuit held that the marihuana statute, the marihuana tax statute was for practical purposes, the same as the Narcotic Drug Act involved in Minor that there was no risk of self-incrimination to a transferor and that the transferor of marihuana was not a person inherently suspect of criminal activities and that the profession of transferring marihuana or being involved in marihuana transactions was not an inherently suspect and illegitimate business.
This was not a statute designed to close down a criminal activity but rather to regulate a legitimate activity.
Briefly, the Marihuana Tax Act statutory scheme consists of an occupational tax provision, series of provisions requiring any transferor of marihuana, anyone who deals in marihuana which is defined as to very broadly and includes selling it or giving away, to register as a dealer, to pay an occupational tax and to keep records his transactions.
There is also a transfer tax provision which requires a transferee, a purchaser or acquirer of marihuana to obtain an order from the treasurer of the United States.
He must in it pay in advance the tax on the material to be acquired, the tax is either at the rate of $1.00 an ounce or $100.00 an ounce depending upon whether the transferee is himself registered.
He pays the tax based upon the amount he intends to acquire.
In order for him to acquire that order form, he must place on file with the government prior to obtaining the form and prior to consummating the transaction, his own name and address and the name and address of his proposed transferor as well as the amount of the drug he proposes to transfer.
There are numerous exemptions from the order form requirement and as the Court noted in Leary, they are essentially all of the legitimate transactions that are involved in marihuana, transverse by Doctors to patients by pharmacist to costumers pursuant to Doctor's orders, by officials of the government, transactions for export, so that there is left subject to the order form requirement a residual class of essentially of illegal transactions.
The information obtained by the order form, he is given copies of the order form are made available to any state or local official who is concerned officially with the enforcement of local narcotics laws.
The mere possession of marihuana is illegal in every state of the union with certain very limited exceptions corresponding largely to the exemptions of the order form requirements under Section 4742.
The Leary case --
Justice Byron R. White: That you can't get an order form from the secretary unless you show that --
Mr. David A. Diamond: No.
Justice Byron R. White: That you're legal under state law, can you?
Mr. David A. Diamond: No, any person may obtain an order form.
The marihuana statutes differ radically from the narcotic statutes in this regard.
Any person desiring to acquire an order form may acquire it if he is a so called legitimate purchaser, one who is registered under the occupational tax sections.
He pays $1.00 per ounce.
If he is an illegitimate purchaser, one who is not registered, he pays $100.00 an ounce, but any person off the street who wants to acquire marihuana for smoking or any other purpose may acquire an order form.
Justice Thurgood Marshall: Pay $100.00 an ounce?
Mr. David A. Diamond: And pay $100.00 an ounce, yes sir.
The Leary case, Leary case involve such a -- such a purchaser.
The Leary case held that the marihuana statute, the transfer of provisions as applied to an unregistered transferee, who was Leary, applied to a person inherently suspect of criminal activities and existed in an area permeated with criminal statutes particularly by virtue of the exposure of the information contained on the order form to the state authorities.
It held therefore that the privilege against self-incrimination applied.
The Court in Leary also refused to severe the statute so as to make the order form provision applicable but withdraw the information from the perusal of the states.
It also applied the privilege against self-incrimination to prospective act since in the Leary case, the purchaser acquired the order form prior to time that any paying transaction was consummated.
The petitioner here contends that the Leary reasoning applies fully to his -- to the position of a transferor of marihuana.
Under the same order form procedure, the acts required of the transferor in order to comply with the provisions of 4742 yield an even greater danger than they did to the transferee of marihuana.
I review briefly the acts which we consider to constitute the self-incrimination aspects of this thing in terms of the transferor.
There are four acts, some or all of which maybe present with respect to any particular transaction in relation to marihuana on the part of the transferor.
The act in effect, the act -- I may note again that the name and address of the transferor must be on file with the government prior to the consummation of the transaction.
The mechanism provided by the statute is the use of the transferee.
The transferee must procure the order form and give the information directly to the government.
We maintain however that the statutory scheme envisions the transferee as a conduit for the transfer of the required information to the government, which information demands acts on the part of the transferor incriminating to himself.
He must, knowing that the information is to go to the government and that it is incriminating to him provide information.
Justice Potter Stewart: The form is appendix b in your brief?
Mr. David A. Diamond: That's correct.
Justice Potter Stewart: As you point out, this is a form quite different from the one in the last case.
In that, the sellers name is not when it comes from the government, is it?
Mr. David A. Diamond: That's correct.
In addition, the general structure of the form is a directive to the transferor but --
Justice Potter Stewart: To the seller?
Mr. David A. Diamond: To the seller from the government authorizing him so far as federal act is concerned to transfer certain quantity of marihuana to specified transferee.
Again, the transferee is the government's conduit for sending this form to the transferor.
Justice Byron R. White: I suppose though, if the buyer demands, goes to a fellow that he thinks is selling marihuana and says give me your name and the seller says sorry, I won't do it, and then the buyer, where this putative buyer finds in that as a sellers name not someone else and puts it on the order form, the seller maybe incriminated, he has incriminated himself, has he?
Mr. David A. Diamond: He hasn't at that point but we contend --
Justice Byron R. White: When does he ever as far his name is concerned?
Mr. David A. Diamond: The information goes to the government through the hand of the transferee.
Justice Byron R. White: Now, through his hands with, the seller has been incriminated himself.
The buyer's information, I don't suppose there is anything that is illegally incriminating as far as the seller is concerned and the buyer furnished some information to the government?
Mr. David A. Diamond: No, there's nothing illegal, there's no privilege itself against self-incrimination without the half of the transferee in relation to the transferor's name.
However, there are other acts required, assuming that the transferee finds the name independent of the transferor and delivers it independent to the -- independently to the government, and I may note in passing that the name was not revealed so far as this record is concerned to the transferee by the transferor.
Justice Byron R. White: That's -- that was my next question; there is no evidence in this case?
Mr. David A. Diamond: No.
Justice Byron R. White: The seller aggregated name to anybody?
Mr. David A. Diamond: That's correct.
The seller and he --
Justice Byron R. White: -- any order form at all?
Mr. David A. Diamond: That's right.
The seller and the buyers were strangers, they were introduced by a third party solely on the basis of first names, that is in the record.
However, once the transferee has obtained an order form, the transferor must accept that order form.
We contend that the act of acceptance is an acknowledgement and an adaptation of the information contained on the order form.
The informa -- the order form is an inherently incriminating device when it contains the information that the transferor has sold certain drugs illegally to a transferee, when the transferor accepts that piece of paper, even when, if he were to refuse to accept it, if he were to ask about its existence, if he were to learn of the existence of this piece of paper and then transfer drugs pursuant to it, he would be adopting the information on that paper as his own as being true and valid.
The statute requires him to participate to a great extent in the incriminatory act involved in the order form process.
It is -- in our mind, it is the same thing as signing a confession that someone else has typed.
The information may already be in the possession of someone else but when you take it as your own, you are acknowledging it as true, when it is possible although for practical reasons very unlikely that a transferee might obtain an order form without ever speaking to anyone.
Obviously, at that point, nothing has been done by the transferor to incriminate himself.
When he accepts the piece of paper, he has enabled the transferee to say when asked, I gave this piece of paper to the buyer and he accepted it assuming that the buyer would tell the truth, we cannot postulate that the statute will be maintained on the basis of the seller's purgery, assuming that the seller would tell that truth when asked, he would be required to say that he accepted this piece of paper.
In addition, he is required by the statute to retain the piece of paper which constitutes an additional piece of evidence of his criminal act for two years and to make it available to all law enforcement officials who might come to ask for it in that two years.
Justice Potter Stewart: Now, which precise statute, very statutory provision on the one with the contained in your appendix, this man --
Mr. David A. Diamond: 4742.
Justice Potter Stewart: -- convicted of violating 4742.
Mr. David A. Diamond: That's right.
Justice Potter Stewart: Which --
Mr. David A. Diamond: 4742 (a) is the general requirement that you may not transfer marihuana except pursuant to an order form.
The provisions --
Justice Byron R. White: Do you assume that there is anything wrong with that, this is a provision of the statute?
Mr. David A. Diamond: I -- insofar as the order form, the mechanism for the order -- for obtaining the order form is provision (c) and (d) of the -- of 4742 and insofar as the order form requires that information be on file which is incriminating at the time of --
Justice Byron R. White: You say that the amendment bars the government prohibiting sales except on other client, except that has said?
Mr. David A. Diamond: The use of an order form by itself, no.
If this were to be an order form of the sort contained in the narcotic -- narcotic drug statute, then we would feel that the buyer was incriminated, I'm sorry, the seller, the transferor would be incriminated by requiring that such a statute exist, such an order form exist.
The theory of it in the narcotic drug case is I believe that the act, the order form requirement is to see to it that unlawful people do not obtain narcotic drugs, that result is perfected by requiring the name and address of the buyer, of the transferee to be in the hands of government prior to the sale or of issuing order forms only to legitimate people.
But in this case, the form does require that the name and address of the transferor be in the hands of government prior to sale.
Justice Thurgood Marshall: Suppose against the order form and fills it out, has he incriminated himself if he does nothing more than that?
Mr. David A. Diamond: The transferor does not obtain the order form and does not fill it out.
The transferee --
Justice Thurgood Marshall: Right.
Mr. David A. Diamond: -- obtains the order form and fills it out.
Justice Thurgood Marshall: And if he takes the order form and fills out and does nothing more.
Mr. David A. Diamond: Has the transferor incriminated himself?
Justice Thurgood Marshall: Has either, have either been incriminated?
Mr. David A. Diamond: If --
Justice Thurgood Marshall: Incrimination comes when you sell the drug.
Mr. David A. Diamond: The --
Justice Thurgood Marshall: Is that right?
Mr. David A. Diamond: The information in the hands of the government directs the attention of the government to a group of people who are suspect and very strongly suspected of criminal activity.
Even the focus of their attention --
Justice Thurgood Marshall: And if they don't engage in the criminal activities, are they injured?
Mr. David A. Diamond: They would presumably then be able to refute the implication that arises from the existence of the order form.
It some -- seem some question is to whether the --
Justice Thurgood Marshall: Well, how is -- how is the filling out of the blank in and off itself without more incriminating?
Mr. David A. Diamond: I think that there's a very heavy presumption that that blank would not be filled out where the transaction not going to be completed.
Among other things, the tax must be paid prior to the filling out of the form, that is at the time, you cannot obtain the form without paying the tax.
Justice Thurgood Marshall: The use of phrase we sometime use, what triggers all of it is this buying or selling of the marihuana.
Mr. David A. Diamond: It is all, yes, if one were not interested in buying or selling marihuana, one would not deal with this forms at all.
However, the danger, the suspicion intended by the existence of the form is such that the -- I think the existence of the form would cause the attention of the authorities to be focused very closely upon this people.
Chief Justice Warren E. Burger: Well, isn't it the paper, the form, the filling out of the form plus and overt act that makes the criminal offense here?
Mr. David A. Diamond: The offense is the overt act or the overt act in the absence of the piece of paper.
Chief Justice Warren E. Burger: But as Justice Marshall just suggested, the piece of paper alone filled out and signed doesn't incriminate the man at all, does it?
Mr. David A. Diamond: If the transaction were to have gone no further than that, then I believe it would be incriminating and that the statute provides that the piece of paper maybe used as evidence and existence of the piece of paper may serve to bring into initiation the process of prosecution in relation to a drug, and now presumably the transferor who did not transfer but is simply named as a transferor would be able to testify that he did not in fact ever commit any act of this sort and were he to be believed than --
Chief Justice Warren E. Burger: Would there be any occasion for him to testify about his good if all he did was fill out the form?
Mr. David A. Diamond: The transferor does not fill out the form in this case, the transferee only.
Chief Justice Warren E. Burger: I'm talking about the transferee now.
The transferee just fills out the form and Justice Marshall's hypothetical and puts it in his -- the drawer of his desk, he has committed no offense has he?
Mr. David A. Diamond: This Court in Leary considered that the correlation between the act of filling out the form and the act of selling or buying the drug was so close that it viewed the existence of the form as being evidence of a recent -- of being a recent transferee of marihuana, even though the existence of the form did not necessarily imply that any transaction had been completed at all.
Justice Potter Stewart: This what we have is in appendix b as the -- is what has issued by the treasury department?
Mr. David A. Diamond: That's correct.
Justice Potter Stewart: And in order to get that issued to him, a prospective transferee, a would be transferee as to make an application for it I assume?
Mr. David A. Diamond: That's correct.
Justice Potter Stewart: And in the application, does he give the name of the prospective vendor?
Mr. David A. Diamond: Yes he does.
Justice Potter Stewart: What was to prevent him from just putting George Washington or Abraham Lincoln or Charles 1856 in there?
Mr. David A. Diamond: Nothing, except that I believe that one has to assume that the process is going to be -- if it is to be followed, it's going to be followed as required by the statute.
As a matter of fact, nothing is to prevent him from skipping the order form completely but one would assume that he in obeying the law, is going to do what the statute says.
Justice Potter Stewart: Who is eligible to make an application for --
Mr. David A. Diamond: Any person, any person may acquire.
Justice Potter Stewart: Any person?
Mr. David A. Diamond: That's right.
Justice Potter Stewart: Does he get -- does he give the name or any registration number or anything else --
Mr. David A. Diamond: If he has --
Justice Potter Stewart: -- of the perspective vendor?
Mr. David A. Diamond: He gives the name and address of the vendor, of the proposed vendor.
Justice Potter Stewart: What in the world it's preventing from putting down their marihuana on Richard M. Nixon or --
Mr. David A. Diamond: Nothing, nothing.
Justice Potter Stewart: Edmond Musky.
Mr. David A. Diamond: Nothing.
Justice Potter Stewart: And so, where is the -- and that's not self-incrimination, is it if he's incriminating anybody, its Edmond Musky.
Mr. David A. Diamond: I think that with --
Justice Potter Stewart: As a potential perspective possible vendor?
Mr. David A. Diamond: That's correct but I think that we have to assume that this is a process that people will follow if they are going to follow it all in the way that it's required.
Justice Potter Stewart: Why is it required?
I mean why -- the requirement is there that you put down anything except any name and address of somebody?
Mr. David A. Diamond: That's right.
Now, if the propose transferor accept this order form, he is acknowledging the truth of the information contained on the order form, that is that he, the perspective of the proposed transferor has transferred to this transferee the specified quantities of marihuana.
At that time, he has committed a self incriminatory act.
In addition, he must retain that form for two years to serve as further evidence.
In connection with obtaining the order form, the Leary case held that a transferee need no -- an unregistered transferee is protected against obtaining the order form because it is self-incriminatory for him to do so.
This makes it very unlikely that an illegal transferee will obtain the order for to give to a transferor unless the transferor insists upon it.
We maintain that if this statute is to be taken as written and interpreted by this Court, that a major part of the motivating power for getting the information into the hand of the government who will use it to the detriment of the transferor must come from the transferor himself.
A transferor -- a transferee under the present state of the law is very, very unlikely to procure an order form unless the transferor simply insists upon it.
It cannot under these circumstances say that the transferor is a passive party who need only inquire whether the order form exist.
If the order form is to exist, it must be because the transferor brings it about that it exist even though he himself does not ever go the treasury department and sign his name on a piece of paper.
Justice Potter Stewart: Well, that's right, I don't understand and that's what prompted my question of the moment ago.
What's the transferor got to do with this?
Mr. David A. Diamond: He must see to it that the piece of paper exist when the order -- when the transaction is completed.
If he does not see to it, it is very unlikely either because the transferee will be incapable of doing it because he does not know the information, that is the transferor has not given him his name and address or because he does not desire to do it.
It is very unlikely for either of those reasons that a transferee will obtain the order form.
If an order form is to come into existence, it must be because the transferor has provided the primary motivation for its coming into existence.
He must affirmatively act to his own detriment.
The -- we maintain that the self-incrimination comes about through a conduit that the statute has provided.
The transferee is in effect the government itself for purposes of dealing with the transferor and procuring the order form.
The transferee would not itself would not itself procure the order form if the transferor did not insist upon it.
In that way, the transfer -- the transferor must see to his own incrimination with the government.
Justice Byron R. White: Can I ask you --
Mr. David A. Diamond: Yes.
Justice Byron R. White: The conviction here is for selling without an order form?
Mr. David A. Diamond: That's right.
Justice Byron R. White: That proceed an order form?
Mr. David A. Diamond: That's correct.
Justice Byron R. White: Now, if the -- he could not have been convicted for this offense at all if he had received -- if he had received the order form?
Mr. David A. Diamond: That's correct, although we maintain that --
Justice Byron R. White: So, if that so, there couldn't be any -- any self-incrimination under this statute --
Mr. David A. Diamond: The order --
Justice Byron R. White: -- because he would -- he could never be convicted under the statute.
Mr. David A. Diamond: The order form would not have been obtained unless he saw it that it was obtained.
If he had insisted that the --
Justice Byron R. White: Well, that isn't really quite so is it?
A lot of buyers know the names of their sellers independently.
Mr. David A. Diamond: In this particular case he did not and it now true that buyers are not --
Justice Byron R. White: But the seller didn't furnish the name, a third party furnished the name.
Mr. David A. Diamond: The name was never furnished.
Justice Byron R. White: Alright, so that seller never incriminated himself at all?
Mr. David A. Diamond: The seller never incriminated the buyer because buyer did not --
Justice Byron R. White: No, the seller never incriminated himself --
Mr. David A. Diamond: But, but --
Justice Byron R. White: On the facts of this case.
Mr. David A. Diamond: But, but that's not only --
Justice Byron R. White: But if he had received an order form with his name on it, he automatically insolates himself from conviction under this statute.
Mr. David A. Diamond: But he exposes himself to conviction under all the states statute, whatever state statute is relevant and to another provision of the statute which makes it illegal for him to be a transferor of marihuana without being registered.
Our -- the petitioner here was an unregistered transferor and he is an inherently suspect person.
If his name appeared on a piece of paper in the hands of the government as a transferor, he would be immediately a suspect.
If he saw to it that the transferee procured such a piece of paper, he would be seeing to his own incrimination in the eyes of the government.
Justice Byron R. White: But why should he be able to say this one, he never -- when there was never an order form in this case?
Mr. David A. Diamond: If there had been an order form, the incriminatory act would have been completed.
As soon as he received the order form or learned of its existence and then transferred marihuana pursuant to it.
There was no order form in the Leary case either and there were no registration forms in the Marchetti, Grosso, and Haynes cases.
The point is that filling out the order form or acting pursuant to the order form in this case is in itself the Incriminatory Act.
In Leary, the incrimination that the dangerous incrimination was at the hands of the state, not at the hand of the federal government and the information came to the state authorities, not from Leary himself but from the federal government.
Leary provided the information only to the federal government who then provided it to other people who would incriminate, who would indict and convict Leary, this was dealt to be too dangerous.
I would like to make a distinction between the Narcotic Drug Act and the Marihuana Act.
Under the Marihuana Act, there are virtually no legitimate users of marihuana.
There were in the last published reports 80 registered people, people who could deal legitimately with marihuana.
I'm informed by counsel for the government that that number is now approximately 160, but it compares insignificantly to the approximately 200,000 registered people involved in the narcotic drug trade, this is an illegal activity and this is a set of statutes intended to cause people to expose themselves as being dealers in illegal activities.
I'll save the remainder of my time for rebuttal.
Chief Justice Warren E. Burger: Thank you Mr. Diamond.
Argument of Joseph J. Connolly
Mr. Joseph J. Connolly: Mr. Chief Justice and may it please the Court.
In the light of the preceding discussion that the principles applicable here and in Minor, my brief submission will focus on the government's view of the statute in this case and our response to the central features of petitioner's argument.
The petitioner contends that Section 4742 (a) which simply requires that he receive from his transferee an order form which to the transferee shall have obtained, in some way compels him to make incriminating disclosures to the government.
We believe that his contention seeks to establish much more than the words of the statute where its operation in fact can support.
The offense -- the offense defined by Section 4742 (a) does not make criminal, petitioners failure to report any previous misconduct to the government and orders the order form provision require him to make incriminating disclosures to the government in order to legalize his subsequent conduct.
The transferor is neither required nor entitled to apply for an order form from the district director.
The only duty which this statute imposes on the petitioner is to transfer marihuana only to those persons who have made their acquisition lawful by paying the tax and acquire and receiving an order form.
The statute punishes not a failure to disclose information but a transfer, a transfer to someone who does not demonstrate that he has complied with federal law.
It is our position that the statute on its face and in practice can be complied with without the transferors disclosing any information at all.
Petitioner's argument to the contrary is found in what he asserts to be the practical consequences of the statute.
He knows that the transferee must provide the name and address of the transferor in his application for an order form.
He then assumes that the transferee can obtain that information only from the transferor himself.
This assumption is essential to the success of petitioners argument for it provides the aspect of self-incrimination which is lacking on the face of the statute, unless it can be said that the transferee necessarily must obtain that information from the transferor.
It cannot be said that compliance with the statute infringes the transferor's right to refrain from making incriminating disclosures.
The petitioner offers no support for this assumption in which his argument rests.
If he is relying on common experience to justify the assumption, such experience in our view refutes the assumption as evidence by the many cases like this one, in which a purchaser who may previously be unknown to a seller of marihuana is introduced to him by a friendly intermediary who can supply the name of the transferor.
We also think it is appropriate to point out that this case seems to be a most unlikely vehicle to establish as a constitutional principle.
The doctrine that a transferee of marihuana can learn the name and address of his seller only from the seller himself.
The facts in this case show that some 10 days before the transaction on which he was convicted, petitioner sold a quantity of marihuana to narcotics agents in the kitchen of his apartment.
Petitioner would have the Court conclude that there was no way except from the petitioner himself that the agents could have learned his name prior to the second transaction, who we think it needs no argument, the persons who sell marihuana in the kitchens of their homes are poorly situated to conceal their names and addresses.
By basing his argument on assumptions as to the practical effect of the statute, the petitioner emphasizes the critical difference between this case and Leary and it's antecedes.
In each of those cases, the statute on its face imposed on the petitioner himself an obligation to supply certain information. It was only one way the petitioner in those cases could comply with the statute by supplying the information himself.
In the present case, it is clear that the transferor can comply fully and literally with a statute where he receives and order form for which he gave no information at all.
In his oral argument, the petitioner makes the additional contention that even if he did not supply any information to the transferee to enable the transferee to obtain the form.
That the mere fact that he receives an order form thus obtained by the transferee is an incriminatory act that is I think the language that he uses, that he adopts the language on the form.
We submit in response to that contention that there is no incrimination, there is no disclosure upon receive of the form at all.
The petitioners intended --
Justice Potter Stewart: Whatever, would it be an offense under 4742 (a) for a man named John Smith to sell marihuana to somebody pursuant to order form in which the top name was Robert Jones?
Mr. Joseph J. Connolly: I inquired of lawyers more knowledgeable with the operation of the statute considering that question, and the answer is not entirely clear.
If you look at Section 4742 (d) in the statute, the third sentence says the original shall in turn be given by the transferee to any person who shall in pursuance thereof transfer marihuana to him.
Thus, the statute on its phase does not prohibit a transferor from making a transfer pursuant to a form in which his own name is not listed as the transferor and we -- as far as I know and I ask there has never been any prosecution brought asserting that -- that that's a violation of the order form requirement.
Justice Potter Stewart: Highly unlikely, casual situation except that it does go I think to the petitioner's argument --
Mr. Joseph J. Connolly: That's right, if in the real world, in the lawful world of marihuana ordered forms, it's unlikely that a transferee applying for a lawful order form will change his mind and submit it to some other supplier of marihuana, so we don't often see that but I think that the government can confidently assert the statute on its face would not preclude a transferor from transferring if the order form did not -- was not addressed directly to him.
This I take it would exclude the situation in which the transferor was a prior party to a misstatement on the application for an order form, but it think that's far field of what you were asking.
Justice Byron R. White: Who's the -- the duty to put the sellers name on is placed on the secretary, isn't it?
Mr. Joseph J. Connolly: That's right.
The district director puts the name on the form and he learns the name because it appears on the transferee's application.
Justice Byron R. White: And so if a seller sells marihuana pursuant to an order form with someone else's name on it, you say he is -- he can or cannot be prosecuted under this section.
Mr. Joseph J. Connolly: It's doubtful whether he can be prosecuted under this section.
The statute appears to contemplate that a transferor may make a lawful transfer on the basis of an ordered form not addressed to him.
Justice Potter Stewart: Of course the statute itself says that it shall be unlawful for any person to transfer marihuana except in pursuance of a written order.
Now, if that order is not directed to him but actually is directed to somebody with a name of John Smith, that's not in pursuance really of a written order.
Giving the words ordinary meaningless --
Mr. Joseph J. Connolly: But that's the --
Justice Potter Stewart: An order to somebody else and therefore is not in pursuance of a written order just as I say implicitly in the statute.
Mr. Joseph J. Connolly: It's not clear on either side.
Justice Byron R. White: So what do you day about, let's assume he can be prosecuted for that, what do you say to the general proposition that requiring forbidding him to sell unless he acknowledges who he is violates the Fifth Amendment.
Does it violate the Fifth Amendment to be required to say what your name is?
Mr. Joseph J. Connolly: No, I don't believe it does, not to a -- not to his transferee in all events.
He makes no disclosure to the government incident to accepting form which --
Justice Byron R. White: Well, he does that he doesn't acknowledge who he is.
I mean if he sells and if he and as the law says you can only sell if your name is on the order form and his sell, hasn't he admitted who is?
I am John Smith, not Brown And somebody else?
Mr. Joseph J. Connolly: Yes, he admits it --
Justice Byron R. White: Well, what's your response then?
Is that violates the Fifth Amendment or not?
Mr. Joseph J. Connolly: No, it does not violate the Fifth Amendment.
Justice Byron R. White: Why not?
Mr. Joseph J. Connolly: He's not making a compelled, he's not compelled to disclose information to the government at that point.
He gives -- if he want --
Justice Byron R. White: Well, he is if he wants to sell marihuana because its a federal lawsuit if you sell without the form with your name on it, you go to jail.
Mr. Joseph J. Connolly: If that he can comply with 4742 by doing no more than receiving a form on which the transferee has secured, has instructed the secretary to put John Smith's name on it.
So to -- would there be a violation to the Fifth Amendment if Mr. Straus came up to me and said, I hear that I can purchase marihuana from Joe Connor, are you Joe Conner and I say yes.
I haven't -- I can't see whether there's any compelled self-incrimination in that case.
Justice Byron R. White: What if the seller and the buyer didn't say anything to him, he just comes in and hand in a piece of paper which says -- which is an order to -- for a certain amount of marihuana and the man takes it and says okay and gives him marihuana?
Mr. Joseph J. Connolly: Oh, is there anything in your question which suggests that the transferor upon being presented with that form may feel himself compelled to make a transfer of marihuana?
Justice Byron R. White: No, no.
I'm just saying that that inherent in his selling, inherent and his living up to the statute as disclosing that his name is John Jones, or admitting that his name is John Jones.
He may not have -- the information may not have originated from him.
He may never have said that his name is John Jones, but selling the marihuana in pursuant to this order form under the law is an admission by him that he is really Jones, not somebody else, isn't it?
Mr. Joseph J. Connolly: Yes.
Justice Byron R. White: And it is --
Mr. Joseph J. Connolly: I'll be willing to interpret the transaction.
Justice Byron R. White: Now, is that -- is that violate the Fifth Amendment?
Mr. Joseph J. Connolly: No it does not because there is no compulsion to disclose his name to the government, incident to that transaction.
Justice Byron R. White: Well, that should have been on the Leary then.
Mr. Joseph J. Connolly: In our view of the practical consequences of the illicit viewings in marihuana in any case in which an order form maybe tender to an illicit transferor like petitioner, the most reasonable assumption contrary to petitioner's assumption is that none of the information was supplied for that purpose by the transferor.
It is to be sure difficult to assess assumptions in either side of the case in this area because it is so very unlikely that an illicit transferor will ever be presented with an order form.
The 160 registered handlers of marihuana have no reason as far as we know to acquire marihuana on the illicit market.
The far more numerous on registered consumers are hardly likely to secure order forms, the cost of incriminating themselves and paying a $100.00 tax, when their failure to pay the tax and to acquire marihuana pursuant to an order form is not punishable under Leary.
So it's quite easy to say that whether -- suppose there is a transferor -- transferee who wants to acquire marihuana from an illicit seller and who is willing to acquire an order form for that purpose, then it's very difficult to translate that supposition into a factual hypothetical which makes sense in the real world.
Even if we're willing to accept that supposition however and to accept the further doubtful premise that a transferee of marihuana could acquire an order form, that is whether the district director lawfully could issue an order form addressed to an illicit transferor.
Justice Thurgood Marshall: Is a $100.00 an ounce your idea of a tax?
Mr. Joseph J. Connolly: Yes, it is a tax.
Justice Thurgood Marshall: For marihuana?
Mr. Joseph J. Connolly: It's a tax from the transfer of marihuana.
Justice Thurgood Marshall: Of a one ounce?
Mr. Joseph J. Connolly: One ounce, it's a prohibitive tax.
Justice Thurgood Marshall: Thanks for the prohibited.
Justice Potter Stewart: Is anyway illegible to apply for order form?
I understood the answer to be yes?
Mr. Joseph J. Connolly: Yes, it is.
That is under Leary, a --
Justice Potter Stewart: Forget about Leary, just talking about the statute, just forget about it.
Mr. Joseph J. Connolly: Well, Leary interpreted the statute is contemplating, that anyone could pay the tax and get an order form.
Justice Potter Stewart: Construe the statute as so provide?
Mr. Joseph J. Connolly: That's right.
Justice Potter Stewart: And the -- then so person not need be registered in any way to be a purchaser?
Mr. Joseph J. Connolly: That's right.
Justice Potter Stewart: That a person needs to be registered to be a lawful seller?
Mr. Joseph J. Connolly: That's right.
And on that basis, we suggest in our brief that there is a serious question whether the district director will or could issue an order form to Peter Straus to acquire marihuana from Joseph Connolly.
When Joseph Connolly's transfer will be unlawful under another provision --
Justice Potter Stewart: Or what in fact happens when an application comes in?
Does the treasury check the name of the proposed transferor for the proposed seller to see if that is one of the 160 registered sellers in the country?
Mr. Joseph J. Connolly: I believe -- I believe that that inquiry is made but there are -- there is not a great volume of marihuana order form in the state, it might be a very difficult thing to do with under the narcotic statute would it be 400,000.
But under the marihuana law, some checking's may.
Justice Potter Stewart: If there's only a 160 legal sellers of marihuana in the country with or without them having -- who are qualified eligible to sell marihuana legally under any conditions wouldn't be much of a trick to check the name on the application of the proposed buyer, the name that he gives of the seller against that list of a 160, is that done or isn't it done?
Mr. Joseph J. Connolly: That is done.
If it is as far -- the question whether, what's the district director is to do in a situation which he finds that the proposed seller is not registered apparently hasn't come up because there hasn't been an application for an order form to acquire marihuana from --
Justice Potter Stewart: For the counts for the fact that there are as many as 160 lawful sellers, registered sellers of marihuana in the United States, does it have medicinal uses?
Mr. Joseph J. Connolly: Present thinking is that it does not have medicinal uses but there's still a great deal of experimentation being conducted in it, about a 140 of the 160 registrants are Doctors in private practice and Doctors in research facilities who are seeking to determine conclusively whether it does have.
Justice Potter Stewart: Well, I can understand how those people would research positions might be purchasers but I don't see why there could be sellers, why they would want to be sellers.
Mr. Joseph J. Connolly: They might not be sellers except among research institutions, they might be transferors and it's broad to say --
Chief Justice Warren E. Burger: -- selling, is it as selling, transferring and several other terms.
Mr. Joseph J. Connolly: The statute which prohibits unregistered trafficking in marihuana has the list of various activities dealing and selling, administering and giving away.
Section 4742 which deals and Section 4741 which imposes the tax speaks of a transfer which that statute defines as any exchange of possession except --
Justice Potter Stewart: So that would include possession giving it to a patient or a research center, that would be a transfer?
Mr. Joseph J. Connolly: That's right.
That is a transfer under the statute exempted fro the order form and tax and the transfer tax requirements.
To continue on with the question whether the transferor is likely to supply any information to the transferee in order to enable the transferee to get an order form, we think that any assumption along those lines contradicts the transfer, the seller's basic instinct to avoid having this transaction come to the attention of the government at all.
It's virtually impossible for us to have conceived of the situation in which the transferor would cooperate with the transferee who would express an intention to get an order form.
We would not expect Mr. Diamond to deny that for an illicit transferor and petitioner's possession in order for him is just about the last thing that he wants.
And if the transferee does produce an order form which he can might have obtained without the knowledge of the transferor, we believe that the transferor undoubtedly would refuse to complete the transaction pursuant to that form because it would be subject to intense scrutiny.
If that is true, then we see no reason to believe that an illicit transferor would as a means of complying with the statute provide any information to his transferee but in short, we conclude that this statute does not impose upon the transferor of marihuana any duty to make an incriminating disclosure which is then transmitted to the government.
I think that's the significant difference between this case in Leary that whatever characterization you might want to give to the transferor's consummating the transaction pursuant to this document, that act involves no matter of communicated by him or by the transferee to the --
Justice Byron R. White: What if the law said that no sellers shall sell on an order form unless he writes his name on the order form?
Would that make any difference?
I've guess -- I'd guess it wouldn't under your argument.
Mr. Joseph J. Connolly: No.
It would -- no, it wouldn't make any difference if --
Justice Byron R. White: And still has the choice of not of -- does not sell it?
Mr. Joseph J. Connolly: No, well, -- that's one choice which we would -- we'd like to preserve whatever is left of that argument.
Justice Byron R. White: There isn't much after Leary?
Mr. Joseph J. Connolly: But the more important matter is that it's not communicated.
That he may comply with the statute, he may have full and literal compliance with this statute without any communication.
Justice Byron R. White: But if the law said you don't sell without an order form unless you write your name on it before you sell it then give a copy to the buyer, you would still say no violation of Fifth Amendment?
Or would you say that --
Mr. Joseph J. Connolly: I don't the -- that's a bit harder case because you give it about --
Justice Byron R. White: So you think is this harder?
You think there's a difference between that case in just receiving the form and symbolically saying yes I'm so and so.
Mr. Joseph J. Connolly: I -- my position stands.
I don't think that involves the Fifth Amendment violation, regarding the more you get me involve in communication directly to the buyer then I'm worried about the next step but I don't believe that there's any Fifth Amendment violation because in that situation I can't see any communication, I can't see any communication in this case.
What incriminates the transferor in this case is not anything that he says but what he does by selling marihuana, that's what subjects him to possible prosecution under the law and it's not on the basis of any disclosure which is made incident to this transaction.
Justice Potter Stewart: And in this say you probably already covered this but I want to be sure I get a distinction.
In this case, it is not an obligation of the transferor to send in an copy of the order form to the government, it's only its obligation to keep it on -- keep it in his possession subject to an inspection for a period of time.
Mr. Joseph J. Connolly: That is the only statutory obligation.
You point out that there is difference between what the regulations contemplate under the narcotics laws and what the statute contemplates here and for the reasons which we set forth in our brief.
We believe that --
Justice Potter Stewart: I don't make any difference anyway because that's a separate regulation statute or so.
But there is that difference between this investigation?
Mr. Joseph J. Connolly: Yes sir.
Thank you Mr. Chief Justice.
Chief Justice Warren E. Burger: Thank you Mr. Connolly.
Mr. Diamond, you have about three minutes left.
Rebuttal of David A. Diamond
Mr. David A. Diamond: May it please the Court.
With respect to Mr. Justice White's question, I believe that acceptance of the order form does more than acknowledge the man's name, that acknowledges the fact that he has transferred a stated quantity of marihuana and if he is an illegal transferor as was the petitioner here and is -- as would be virtually anyone prosecuted under this act, he would be acknowledging that he has broken the law.
Justice Potter Stewart: But to whom does he acknowledge it?
Mr. David A. Diamond: He must acknowledge it to any person who comes to inquire of any official who comes to inquire about this matter.
I believe that he acknowledges it --
Justice Potter Stewart: When he gives money, when he receives the order form?
Mr. David A. Diamond: That's right --
Justice Potter Stewart: Under your -- under your submission he acknowledges that he has then sold a quantity of marihuana?
Mr. David A. Diamond: That's right, that is correct.
Justice Potter Stewart: But he's acknowledge it at best only to the -- only to the buyer not to the transferee that -- who is not the government?
Mr. David A. Diamond: He has put himself in the position of being required to acknowledge it to the various state officials who come around as a result of that order form.
Justice Potter Stewart: Well, because that's of a separate obligation to keep the order form in his possession on file?
Mr. David A. Diamond: I believe that it is the obligation to which this statute looks, that is the purpose of the buyer's name on the order form is to deal with the second purpose stated in the legislative history of this act, that is to expose all details of marihuana transactions to the scrutiny both of the federal and state officers.
If this -- if the purpose of this transfer of provision was only to prevent transfers to unlawful people, the buyer's name would be irrelevant.
The purpose is to expose the existence of the seller as well as the buyer to all scrutiny which may follow the coming into existence of the order form.
I believe that there cannot be any segregation of this statute --
Justice Byron R. White: Do the statute requires him to disclose this information to anybody who comes around?
Mr. David A. Diamond: To any official of the state, local, or federal official who comes around, he must produce his copy the order form.
It would be a frivolous I think for him to say something like at that point he need not expose it, there would be no purpose in his having to take it in the first place if he didn't have to display it when the officials come around since this serves more than the valid -- possibly valid purpose of seeing to it that these drugs go only to a legitimate purchaser.
They see to it that the seller is also exposed to official scrutiny and that -- that is done by seeing to it that he maintains a copy which he reveals to appropriate --
Justice Byron R. White: Do you say the law says to him if you want to sell any narcotic which maybe legal under federal law but illegal under state law, the federal law tells you that you must make a record of this sale illegal under state law, preserve it and then a state official would ask you for the record, you got to disclose it?
Mr. David A. Diamond: That's correct.
We feel that's an integrated, that's fruition of the entire buyer -- the entire seller information of the transfer order provisions of the marihuana act.
Chief Justice Warren E. Burger: Let's cut that in pieces now.
Suppose he have the record but when the state officer called on him and ask for its exhibition, he simply stood on his claim of the Fifth Amendment and decline to do it and proceeded to test it out?
Mr. David A. Diamond: I think that that would be rendering the entire transfer provisions pointless.
There is no point to him taking the order form at all since the buyer part of it is already taken care of by the buyer's name if the seller's point is to have any purpose, it is to expose and reveal the seller if the seller were to decline to disclose the order form and he were sustained on that, there would be no point in making him take the order form in the first place.
Chief Justice Warren E. Burger: And are you suggesting that the federal government has no legitimate interest in knowing the sources independent of the prosecutorial aspect that simply knowing the flow of the material?
Mr. David A. Diamond: They perhaps do but they may not make the man himself, the man incriminate himself in relation to that legitimate interest.
They require him to register and maintain records of the different sort and under different provisions under this law and those provisions are perhaps valid but they cannot then require that he in effect commit another crime by refusing to reveal that he has violated the first position, the first provisions.
We feel this case comes directly under the Alberts and Marchetti very line.
In addition, the order form are all used as evidence.
The statute describes it as such.
Thank you Your Honor.
Chief Justice Warren E. Burger: Thank you Mr. Diamond.
Mr. Diamond and Mr. Connolly, we thank you for your submission.
The case is submitted.