TURNER v. UNITED STATES
Legal provision: 21 U.S.C. 174
Argument of Josiah E. Dubois, Jr.
Chief Justice Warren E. Burger: Number 190, Turner against the United States.
Mr. Josiah E. Dubois, Jr.: Mr. Chief Justice and may it please the Court.
Chief Justice Warren E. Burger: Mr. Dubois.
Mr. Josiah E. Dubois, Jr.: I have agreed with Mr. Rivkin who has filed an amicus brief that with the concern of the Court, he may use anytime of the remaining after my principal argument.
Chief Justice Warren E. Burger: In the -- in rebuttal?
Or as part of your argument's brief?
Mr. Josiah E. Dubois, Jr.: As part of -- yes.
He's filed an amicus brief on my side of that case.
Chief Justice Warren E. Burger: Have you arranged to see that he doesn't absorb all your rebuttal time?
Mr. Josiah E. Dubois, Jr.: Well, if he does, --
Chief Justice Warren E. Burger: Very well, we'll leave it up to your gentlemen.
Mr. Josiah E. Dubois, Jr.: It's more or less.
Now, this case involves convictions under Section 174 of Title 21 of the United States Code and Section 4704 (a), of Title 26 of the United State Code relating to two narcotic drugs specifically heroin and cocaine.
Now, it's the contention of the petitioner that the presumptions contained in both of these sections of the code are unconstitutional, because they discourage the right of the defendant to remain silent, and specifically we rely heavily upon the two relatively recent decisions of this Court which are cited in the brief of petitioner, namely Griffin versus California and United States versus Jackson.
Now without repeating in detail, all of the arguments contained in the brief, I would like to emphasize certain points for consideration of the Court.
First, Section 174 of Title 21 of the United States code requires that the defendant know that narcotic drugs in question “to have been imported or brought into the United States contrary to law.”
Now in the Government's brief, it is a claimed that it is rational to permit the jury in this case to infer that a person in possession of a relatively large amount of heroin, knows that it was illegally imported.
And in making this argument, the Government's brief approach from, were then apparently ignores the charge of the District Court Judge in which the Judge said specifically and I quote.
Now obviously, there is no evidence in this case that this particular defendant knew that this cocaine and this heroin -- heroin excuse me, have been imported into the United States contrary to law.
District Court Judge and went on to say, the statute recognizing the impossibility approving knowledge in this cases and having in mind the welfare of the people which is a purpose of the food and drug act, says that all you have to do, all the Government has to do is show that there was possession of this drug by the defendant on trial and that evidence shall suffice to authorize a violation of the statute unless by the witnesses presented possession of the drugs by this defendant under those circumstances will satisfactory explain to the jury.
It is abundantly clear therefore that under the instructions from the District Court Judge, the jury did not indulge in any rationalization such as that contained in the Government's brief, namely, the jury under the judge's instructions certainly did not indulge in the presumption that because there was a large amount of heroin that therefore the defendant knew it was illegally imported because the judge told the jury, all you have to find gentleman is possession.
So, I feel that the whole argument in the Government's brief concerning the so called rational interest, the mere to be drawn by jury, by the possession of this large amount of heroin is completely immaterial.
Secondly, the Government's brief and supplemental memorandum spend a great deal of time in pointing out that heroin is neither produced in the United States nor legally imported into the United State.
Now, even assuming we stipulate this fact, it is our position that this statement leads to nowhere.
Certainly, if this is true, I never knew it before reading the Government's brief and there is certainly is no evidence in this case that the defendant knew this to be true.
In fact as I've already indicated, the District Court Judge specifically charged.
Now obviously, there is no evidence in this case that this particular defendant knew that this cocaine and heroin had been imported into the United State contrary to law.
Now, my next point is --
Justice John M. Harlan: If I'm not mistaken, hasn't the Government conceded come to relates to cocaine so far as the (Inaudible)?
Mr. Josiah E. Dubois, Jr.: Oh, I beg your pardon.
Yes, so far as under the Section 174 of Title 21, the Government did concede the cocaine, of course I'm sorry.
Justice John M. Harlan: Was this part of your argument that now?
Mr. Josiah E. Dubois, Jr.: Yes, right.
Now, it is our contention that the presumption than mere possession of narcotics drugs is sufficient evidence of the violation of Section 174 of Title 21 requiring that the defendant know the drugs have been imported contrary to law is unconstitutional to use the words of the Griffin case, it cuts down on the privilege by making the assertion of the right to remain silent coarsely and to use the words of the Jackson case, it shows the assertion of that right.
Now, it is to be noted that in the Jackson case, the defendant pleaded not guilty and demanded a jury trial.
But this Court do said that the provision in the Federal Kidnapping Act that permits him to get descent if he ask for a jury trial was unconstitutional because it shows his right not -- to plead not guilty and to ask for a jury trial, and we say that the right to remain silent is just as precious as the right to demand a jury trial and the right to plead not guilty.
Now, with respect to the convictions under Section 4704 (a) of Title 28 of the United States Code, here again is a contention of the petitioner that the presumption contained in this section of the code or vying that mere possession of the drugs is prima facie evidence of a violation of the section is unconstitutional, again because it discourages the right of the defendant to remain silent.
It is to be noted and this is not brought out at least in the Government's brief that whereas the indictment under this section of the code charged the defendant with unlawful purchase, possession, dispensing and distributing of narcotic drugs, and whereas, the judgment of conviction resides possession as well as purchase in dispensing and distributing.
In fact, this section of the code does not make the possession of narcotic drugs a crime.
Specifically said statute says that, it shall be unlawful to purchase, sell, dispense or distribute narcotic drugs except in the original stamp packing.
Then, the statute provides as I've indicated, the possession shall be prima facia evidence of violation.
There is absolutely no evidence in this case that the defendant purchased, sold, dispense or distributed narcotic drug.
And here again, the charge of the District Court judge to me is almost conclusive.
He said to the jury so that in effect your problem, your principle problem here will be to determine whether or not certain qualities of heroin and cocaine which have been more in evidence in this case were in the possession of -- or under the control of the defendant in this case.
Here again, the jury was instructed in effect that so wrong as the defendant was found to be in possession of the drugs that was all that was needed, and here again, the jury obviously must determine guilt solely on the basis of possession.
So, in closing, we say that the presumptions in both of these sections of the statute are unconstitutional and we believe that the decisions of this Court in the Griffin case and the Jackson case dictate that this presumption be declared unconstitutional.
Thank you very much.
Chief Justice Warren E. Burger: Mr. Rivkin?
Argument of Steven R. Rivkin
Mr. Steven R. Rivkin: Mr. Chief Justice, may it please the Court.
There are other issues in this case beyond the issue of self incrimination arising from the statutory presumptions on which the petitioner for -- the petitioner has rested.
Because of the presence of these issues, I have filed in behalf of the amicus two briefs in this case and I would now like to make this brief supplementary argument.
I want a dwell on the issue that was preserved in the Leary case last term, the resolution here, the constitutionality under the due process clause of the statutory presumption in 21 USC Section 174 with respect to hard narcotics.
Then time permitting, I would like to point briefly to the other arguments post in the briefs of the amicus.
The Leary case invalidated the virtually identical statutory presumption in 21 USC 176 (a) similarly involving a statutory influence arising from mere possession of foreign importation and knowledge thereof with respect to marijuana and it has specifically left for a future case separate consideration of the similar question with respect to hard drugs.
Subsequent to the Leary case and in response to the briefs filed in this case, the Government has conceded error with respect to the drug cocaine and has prayed for reversal on count three.
By so doing, it is our position that the Government has now dissolved any line remaining after Leary between marijuana and hard drugs.
Applying the task of that and prior cases to the drug heroin, the remaining drug in the petitioner's possession.
21 USC Section 174 is embraced fully within the prohibition of the due process clause.
This Court has always given deference to the ability of Congress to fashion evidentiary rules but that deference has always been based and set forth in the Top case on the congress's ability to see the facts of a particular case in broader relationship than that might -- that might be presented to the jury.
It should be noted at the outset here, that what the Congress was doing in 1909 when it passed the import and export act with respect to narcotic drugs was working a total prohibition on the import and under domestic possession and use of heroin.
It was not making a judgment of a common relationship of facts such as the Congress was doing in the statute which was involved in Gainey case and the Romano case 26 USC 5601 in which it was determining that because of the tendency of steels to be located in hidden places, that they are maybe assumed to be in relationship with regard to anyone who is found present thereat.
Therefore, realizing that we must look behind the normal deference which is to be accorded to the Congress in these matters, we must apply to these presumptions the tests which have been most recently stated in Leary and which have been also stated in Tot, those tests are that there be a rational connection between the fact and evidence and the fact presumed there from.
Based on a connection and common experience and capable of giving rise to substantial assurance that the presumed fact is more likely than not to flow from fact and evidence.
If we apply this tests to the possession here in question both logically and empirically with respect to 21 USC 174, we must come to a conclusion that we cannot reach substantial assurance that there is a rational connection between the fact in evidence and the facts unlawful importation and knowledge thereof which the Congress would have the Courts presume.
With respect to unlawful importation, there are at least four alternatives for the source of heroin in the possession of the petitioner.
This morning, Mr. Straus made reference to the statute 21 USC Section 513 by which heroin and any other drug may in fact be lawfully imported to the United States.
Lawfully imported for scientific purposes and for subsequent license, but I would want that if petitioner Turner and any other possessor of heroin had come in possession of such a drug without such a license, he could not be prosecuted under the statute.
The second source would be lawful importation of source material and subsequent deviation and manufacture of that source material into heroin.
The source material commonly acknowledged for heroin derived as it is ultimately from the opium poppy is raw opium and morphine.
As I pointed out in my brief, there is also evidence which the Government does not contradict, indeed it confirms that codeine may also be a source for heroin.
Using the Government's statistics which the Government has applied as the basis for concluding in this case that cocaine may in fact not be unlawfully imported to the United States, we come to a conclusion that there is a rather high potential of domestic manufacture of the heroin drug.
The Government concedes both the possibility and the technical ease with which heroin maybe manufactured.
The Government's reports mentioned efforts to manufacture heroin and moreover, the Government, both federal and state have attempted to prosecute people for the effort of manufacturing heroin from source materials otherwise present in the United States.
Moreover, the recent concerns of the bureau of narcotics and drug abuse for cough syrups which have raw traces of codeine within them and for Paragor which contain opium suggest that the source material for the substance in the possessor of heroin's hands maybe as handy as the local supermarket or drugstore.
The third element which I would suggest is present to vitiate the assurance of unlawful importation is that the opium poppy may have been grown in the United States.
Indeed, that prospect was itself the basis on which Congress passed the Narcotics Control Acts in the early part of the century.
The Government has acknowledged that it is agriculturally possible to grow opium in the United States.
Moreover, there is a regime of federal control and licensing over the opium poppy in the United States and there have been prosecutions reported which are cited in my brief for individuals who have attempted to grow that product.
The Government moreover in its brief has also confirmed that there are instances where opium is grown today in the United States.
Chief Justice Warren E. Burger: Do you suggest that the Government or the Congress in order to establish this presumption must negate every possible source or is the presumption supportable if on balance it's more probable than not that it's an imported substance?
Mr. Steven R. Rivkin: I would not apply Mr. Chief Justice either a 100% standard or a 51% standard to what the Government might -- must substantiate.
I would --
Chief Justice Warren E. Burger: Your definition earlier was more probable than that, I wouldn't -- how far do you go than on the percentages?
Mr. Steven R. Rivkin: Well, the particular language with which one may deal in nice points is substantial assurance that more, that it has more probably than not come about it, so I would say even if there were a 51% requirement, one must feel quite sure in fact to a point that one might speak of as beyond to a moral certainty that the particular substance was unlawfully imported to the United States.
Chief Justice Warren E. Burger: Well, has any case ever held that it had to be to a moral certainty?
Mr. Steven R. Rivkin: No, and I don't ask, this one does.
I merely say that when we think in terms of the burden that the Government must substantiate.
Chief Justice Warren E. Burger: Which is?
Mr. Steven R. Rivkin: We're not thinking such quantitative terms.
Chief Justice Warren E. Burger: Would you think that this presumption, statutory presumption here is more or less offensive than the common law presumption which is enacted in the statute in some states arising from the possession of recently stolen property, unexplained possession?
Mr. Steven R. Rivkin: I would say Your Honor that it does in terms that Tot uses strain one's tolerance to apply that test to the substance.
Yes, Your Honor.
Chief Justice Warren E. Burger: In other words, you could live with the other, the common law presumption but you think that's not as offensive as the statutory presumption here?
Mr. Steven R. Rivkin: In the light of the showings which I'm making here Your Honor, I think that that's the circumstance.
Finally, I would add that there also is the prospect, that the drug might be wholly synthesized in the United States from sources which are unregulated and which are commonly available.
This possibility has been acknowledged by the Government in its briefs.
On balance, the Government has attempted to come to grips with these alternatives and they have concluded in their own terms that if heroin is available in the United States domestically manufactured and produced, that the likelihood is less than 1%.
I would point out that first of all, one must be aware when one judges the validity of this projection of the sources from which the Government's data are drawn.
Those sources can only be in this circumstances, the list and the numbers and quantities of drugs that have been confiscated at ports and borders and those that may have been confiscated overseas.
And these by this very basis I would submit have absolutely no basis as a rational source of inference for any substance that maybe domestically produced.
Justice Thurgood Marshall: Is it illegal to produce heroin, is it not?
Mr. Steven R. Rivkin: Yes, Your Honor.
Justice Thurgood Marshall: Would it be assumed that would cut down on the local manufacture?
Mr. Steven R. Rivkin: It -- it might, on the other hand it might also raise the incentive for local manufacture Your Honor by driving up the price but that wouldn't be in violation of the statute.
Justice Thurgood Marshall: Well, have -- I'm still on with the Chief Justice, I'm worried about how far the Government has to prove that point?
Mr. Steven R. Rivkin: We're concerned with the criminal case, as a criminal case, it's a further question of the degree to which the Government may chop down on a defendant's rights and that is I would say that we're up around the realm of reasonable doubt, beyond a reasonable doubt.
I wouldn't want to put a quantitative test involved here but I certainly wouldn't say that the statistics that have been introduced here substantiate that.
If the statistics do substantiate that to a -- with substantial assurance, then it is a proposition which our cases would embrace, but the fact is that the most authoritative judgment that has ever been made about the validity of these statistics was made recently by the white house conference on narcotics and drug abuse.
When it was specifically stated as follows, adequate data are not available for a precise estimation of the incidence and prevalence of the abuse of drugs with the cycle of toxic side effects because addicts for the most part obtain their drugs illegally, the existing data about unreliable and incomplete and are generally limited to individuals apprehended by enforcement agencies.
The White House panel necessarily concluded the discrepancies between the federal state and local enforcement agencies are so great in some instances, more than 100% that the panel prefers not to make any numeral estimates at this time.
The time was 1962, the white house conference on narcotics and drug abuse and the citation is to page 290 and 291.
Indeed, even if one makes the assumption that this Court made without determining the issue in the Leary case that most heroin is imported to the United States.
One must also look beyond that to the question of whether, the second part of the presumption here at concern has been found to have a rational, have met a rational test.
That is whether most users of heroin in the United States know that their drugs have a foreign importation.
In fact, the language used in the Leary case was that a majority of possessors of the narcotic drug must know of the high rate of importation or of the actual origin of the drug.
Now, the Government has attempted warmly I submit to substantiate that necessary showing of knowledge and it is done at solely by pointing to widespread television and newspaper notoriety.
I would submit that that offering goes nowhere near as far as the weary teachers the Government must go.
In fact, authoritative sources which are cited in my brief show that the heroin user by enlarge is poor, disadvantage, psychologically an escapist and far from the sophisticated person from whom one might expect, the knowledge of the source of importation of the drug.
On balance I submit that both presumptions of foreign importation and knowledge thereof failed to meet the rational connection test which this Court has applied.
If the Court has questions, I would like to --
Justice Hugo L. Black: I would like to ask you one question.
Mr. Steven R. Rivkin: Yes, Mr. Justice Black.
Justice Hugo L. Black: Are you challenging the right of Congress to fix the amount of evidence that will authorize or compel a jury to convict?
Mr. Steven R. Rivkin: I am not directly challenging that Your Honor, I have --
Justice Hugo L. Black: It seems to me you're doing it indirectly.
Mr. Steven R. Rivkin: Well, --
Justice Hugo L. Black: I don't see why you hesitate to do it directly.
Mr. Steven R. Rivkin: You haven't hesitated to do it directly Mr. Justice Black and I would --
Justice Hugo L. Black: Are you saying?
Mr. Steven R. Rivkin: I submit that you Mr. Justice Black have not challenged, have not hesitated to take that challenge up and that is why you have pointed in the past to considerations other than those arguments.
Justice Hugo L. Black: In Congress -- in the Congress interfere to the constitutional rule, functions of the Court to try cases any more than the Court can interfere for the right of Congress to pass legislation?
Mr. Steven R. Rivkin: Put in that manner Mr. Justice Black, I would respond affirmatively and indeed, it's my further contention as you have pointed out in your descent in Gainey, in your concurring opinion in Romano and in Leary that these presumptions work a depravation of due process of law by converting the reasonable doubt test which must be met, they interfere with the right of the defendant to a trial by jury, in addition to the self incriminatory aspects which the counsel for the petitioner has pointed out.
As a matter of separation of powers, I would prefer to respond in those terms that there are substantive rights which statutory presumptions must meet and which these statutory presumptions fail to meet.
Chief Justice Warren E. Burger: Let's assume that Congress has no such right to establish standards of proof, does that in any way inhibit judges from applying a standard which Congress may have incidentally defined if judges think its insensible standard as they have with reference to the inference as to be drawn from possession of recently stolen property?
Judges can adopt it on their own not be concerned that the Congress has prescribed, can't they?
Mr. Steven R. Rivkin: My own feeling is that there are certainly are matters that judges may -- of which they may take judicial notice but that there are restrictions on the extent to which that process may also operate.
Chief Justice Warren E. Burger: Well, is this presumption here fundamentally very much different from the inferences which the Courts permit juries to draw from possession of recently stolen property?
Mr. Steven R. Rivkin: In its operation I would say it is not but I think that this Court has applied tests on a case by case basis on a presumption by presumption basis and I'm not attacking all presumptions here, I'm not attacking the presumption of recently stolen property.
I am attacking on the basis of the facts of the specific case, the same kind of test which here we ask for itself and for any subsequent cases that may follow.
I am attacking these presumption --
Justice Hugo L. Black: What were the charges you have directed?
Mr. Steven R. Rivkin: Pardon me.
Justice Hugo L. Black: For the Clerk would have charged you do you have directed, but there is a presumption that this defendant is guilty from these facts, did you return them loose?
What would happen to his case thereafter and why?
Mr. Steven R. Rivkin: He would have so vitiated our constitutional system that at any point thereafter, the case should be totally reversed.
Justice Hugo L. Black: He would be acquitted and there's a provision in the constitution that a man should not be put in jeopardy twice for the same thing.
Mr. Steven R. Rivkin: That is correct, and he could not be retried.
I believed that in response to Mr. Justice Black's earlier question, I touched basically on most of the additional points that I would have raised.
I would only point out that there is one additional issue that has been raised by the amicus here, that is that the operation of Section 4704 (a) aside from the statutory presumption, the prohibition on any dealings in narcotic drugs without tax stamps is it self violation of the self incrimination provision.
I have referred to that, I will refer to my brief to page 17 through 20 for a fuller development of that argument.
If the Court now pleases, I would prefer to reserve the rest of our argument for rebuttal.
Chief Justice Warren E. Burger: Very well Mr. Rivkin.
Argument of Lawrence G. Wallace
Mr. Lawrence G. Wallace: Mr. Chief Justice and may it please the Court.
Petitioner stands convicted after a jury trial on four counts of narcotics violation and he petitioned this Court to review the constitutional validity as applied to him of the so called statutory presumptions of the two federal narcotics laws under which he was convicted.
The question of the constitutionality of the presumptions was the only question he put before the Court of Appeals and was the only question in the petition for certiorari and in our view of the case under this Court's rules therefore, no other issues are raised apart from the validity of the presumptions and that is what we have directed our brief to and what I anticipate directing the argument to.
Because no other issues are raised, the facts of record pertinent in this Court are few but I think they are worth reviewing for purposes of addressing ourselves to the trial judges charge to the jury as well as to the validity of applying the presumptions in this case.
Federal narcotics agents arrested the petitioner and two traveling companions at a Lincoln tunnel tow booth in New Jersey shortly after their automobile emerged in the course of the trip from New York City and the automobile was registered in petitioner's name.
While the agents were conducting a search of the arrested individual and prior to their actual search of petitioner's person, he threw a metal foil package containing cocaine to the top of the nearby wall and in search of the automobile then revealed another metal foil package containing heroin under the front seat.
The first package weighed 14 and 2/3 grams and contained a mixture of cocaine and sugar, 5% of which was cocaine.
The package containing heroin weighed 48 and a quarter grams and consisted of a mixture of several substances, 15.2% of which was heroin.
The heroin mixture was divided into 275 small glisten double bags all wrapped within the metal foil package and none of the containers had any tax stamps affixed.
On the basis of this evidence, the petitioner was convicted of a heroin violation and of a cocaine violation under each of the two statutes set forth at pages 2 and 3 of our brief.
Under Section 174 of Title 21, he was convicted of having knowingly received, concealed and facilitated the transportation of each drug after its illegal importation with knowledge that it had been illegally imported.
Under Section 4704 (a) of Title 26, he was convicted of having knowingly purchased, possess and distributed each drug not in or from the original stamp package.
He was given concurrent sentences of imprisonment under two heroin counts to run consecutively with concurrence sentences under two cocaine counts.
Under each of these statutes, the Trial Court instructed the jury in the statutory language that under Section 174, excuse me, it was authorized to convict if the defendant was shown to have been in possession of the drug and has not explained his possession to the jury's satisfaction and under Section 4704, it was authorized to convict if the drug were shown to be in the defendant's possession without appropriate tax stamps affixed.
These so-called statutory presumptions authorized but did not require the jury the infer the additional elements of each crime from the Government's proof in this case and the issue before this Court is whether it was constitutionally permissible to apply these presumptions to each of the four counts.
The issue is not a novel one in this Court because the constitutionality of each of these statutory presumptions has previously been upheld in this Court's decisions, that of Section 174 in Yee Hem against the United States in volume 268 US and that of Section 4704 (a) in Casey against the United State in volume 276 US.
In a series of more recent decisions beginning with Tot against the United States and continuing through Gainey and Romano and most recently last terms decisions in Leary, the Court has more searchingly analyzed and refined the standard for determining the constitutional validity of criminal statutory presumptions.
A consistent theme of all of these decisions is that a distinction may legitimately be made between the evidence relating to a particular defendant and the question of what inferences in general may properly be drawn from the proof of certain facts and that as to the latter issue.
Congress may properly bring to bear its resources and its wisdom may bring to bear what this Court in Gainey referred to as the capacity of Congress to amass the stop of actual experience and call conclusions from it.
So as to provide statutory guides that will contribute to consistency in the administration of justice and that will in most cases enable the trial to be focused on the evidence relating to the particular defendant without the destruction and the burden of introducing proof in every case concerning complex matters of general application such as the details amass in the briefs in this case about the narcotics trade in general and its possible relation to the scientific properties of various drugs.
Now of course, Congress has not foreclosed either party from introducing expert testimony or other evidence tending in general to vitiate or to substantiate statutory presumptions but this is rarely done.
Now, in the series of cases I mentioned, --
Justice Hugo L. Black: Well of course, I supposed the Government will admit that Congress couldn't foreclose that?
Mr. Lawrence G. Wallace: Well, we need not admit it because Congress has not attempted to foreclose --
Justice Hugo L. Black: I wouldn't think it did not.
I wouldn't think it did not.
Mr. Lawrence G. Wallace: In the series of cases I mentioned, this Court has developed the standard for testing the constitutionality of criminal statutory presumptions in terms whether there is a rational connection between the fact proved and the ultimate fact presumed or as it was re-stated last term in Leary, a criminal statutory presumption must be regarded as irrational or arbitrary and hence unconstitutional unless it can be at least said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.
Under this standard, we contend as to three of the counts here that the application of the presumptions was rational and as to the remaining count under which petitioner was convicted, we can see that this requirement was not match and that petitioner's conviction under that count should be reversed.
Justice John M. Harlan: Quoting you had to, in the presumption of unreasonable doubt standard would you reserve, (Inaudible).
Mr. Lawrence G. Wallace: Well, that would have to be submitted to the jury as the instructions of the Trial Judge did put the case to the jury but they had to be convinced by the Government's evidence beyond a reasonable doubt that all of the elements of the crime had been made out.
And the statutory presumptions are just another form of recognizing that circumstantial evidence can be put to the jury under proper reasonable doubt instructions.
Justice Byron R. White: Could I ask you a question?
I get it from this indictment that the conviction was for purchase, sale and distribution?
Mr. Lawrence G. Wallace: That was the way the indictment was phrased, yes.
Justice Byron R. White: And the statute is or, the statute says or.
Mr. Lawrence G. Wallace: That is correct.
Justice Byron R. White: I think that if this inference is invalid under the indictment and the conviction that this inference is invalid on the tax stamps as to either purchase, sale or distribution then the conviction must be reversed?
Mr. Lawrence G. Wallace: I don't believe that's the law under this Court's decisions, indictments always have to be phrased in the conjunctive rather than in the alternative and that if any of the crimes are made out, that is sufficient to uphold the conviction.
It is possible to phrase –-
Justice Byron R. White: The indictment says and --
Mr. Lawrence G. Wallace: The indictment always say and because if indictment say or, it is been held that that doesn't give the defendant adequate warning of what the Government will try to prove against him.
Justice Byron R. White: They can charge him with ½ I suppose.
Mr. Lawrence G. Wallace: Of course, some of this could have been omitted from the indictment but that again is an issue that is not raised here at --
Justice Byron R. White: Is the queue in sustaining the -- you suggest that count four not be reversed?
Mr. Lawrence G. Wallace: That is correct.
Justice Byron R. White: And that, it deals with cocaine, the cocaine inference with respect to the tax stamp, whether possession in the case --
Mr. Lawrence G. Wallace: That is correct.
Justice Byron R. White: -- sale or distribution or acquisition without tax stamps, you say that shouldn't be reversed --
Mr. Lawrence G. Wallace: That is correct.
Justice Byron R. White: -- because in this case, possession is ample inference, is ample basis for concluding those stamps.
Mr. Lawrence G. Wallace: That he purchased the cocaine not in or from a stamp package and that is included within the indictment.
Justice Byron R. White: And you say then that that if that inference on these facts is good as to either acquisition, sale or distribution, the conviction stand?
Mr. Lawrence G. Wallace: Yes, Your Honor.
We further urge that except as it may serve to raise a belated challenge to the Trial Court's instructions, petitioners rely on some the privilege against self incrimination in challenging the presumptions should be regarded in this case as not really adding anything to the established rational connection task of their validity and since we also contend that the jury instructions were adequate, we conclude that the verdict of guilty should be sustained as to the three counts in which the statutory presumptions were rationally applied.
Returning first to the two heroin counts, we contend that both statutory presumptions were validly applied to the evidence of possession of that drug, under Section 174, it was rational for the jury to conclude from petitioners possession of the 275 bags of heroin, both that the heroin was illegally imported and the petitioner knew of its illegal importation.
We have documented in our brief and in our supplemental memorandum the reasons why in contrast to the facts concerning marijuana which were before this Court last term in Leary, on the basis of the best information available, available within the Government, available in scientific publications, available on the reports of the United Nation's Commission on narcotic drugs and available in the recent report of the task force on narcotics and drug abuse of the president's commission on law enforcement and administration of justice.
The first part of this presumption that the heroin was illegally imported should be regarded as simply reflecting the actuality that heroin is neither produced in, or illegally imported into the United States.
We have in that written presentation carefully considered and responded every speculative possibility commendably suggested by counsel for the amicus in this case as an alternative source to illegal importation and we have demonstrated that none of these alternatives could realistically account for more than a negligible fraction of the total supply of heroin in this country.
To the best of our knowledge virtually all and at least 99% of the heroin in the United States was illegally imported.
It then follows in the words of the Leary opinion as a matter of common sense that since all heroin is illegally imported or virtually all, a jury may rationally infer and thus maybe authorized by congress to infer that a person in possession of 275 bags of heroin knows that it was illegally imported.
The drawing of such inference by the jury from the conduct of the accused and the circumstances of the case is after all the ordinary way in accusatorial system of justice in which it is determined whether the accused have the requisite knowledge or other mental attributes such as specific intent when such a mental attribute is an element of a crime.
Justice Hugo L. Black: May I ask you a question?
You combine two things in one sentence, you said that a jury might have rationally found, that was all standing alone, and the second was I might have been authorized by Congress, what provision of the constitution do you rely on to say that Congress can say --
Mr. Lawrence G. Wallace: Under this Court's --
Justice Hugo L. Black: What part of jury may rationally consider to be the truth?
Mr. Lawrence G. Wallace: Under this Court's decisions Mr. Justice Black, the tasks of whether Congress can authorize the jury so to find is whether it would be rational of for the jury to do so.
Now, I recognize that once one accepts your premises to separation of powers in this area, the internal logic of your position is indisputable but the majority of the Court has not accepted that premise and --
Justice Hugo L. Black: Well --
Mr. Lawrence G. Wallace: I -- I'm addressing my argument in terms of this Court's decisions --
Justice Hugo L. Black: But I admitted on that you have a good ground argument.
Mr. Lawrence G. Wallace: Thank you, sir.
Justice Potter Stewart: I don't although I -- as I remember it I joined the very opinion as said it was simply a matter of common sense that if you show as a matter of fact as you have shown but let us assume in your submission that that the fact is that the lion share of all heroin in the United States is illegally imported.
I -- I don't see at the moment how it does follow as matter of common sense that anybody knows that.
The fact is I didn't know it until these cases came along.
Mr. Lawrence G. Wallace: Well --
Justice Potter Stewart: Now, I --
Mr. Lawrence G. Wallace: The petitioner --
Justice Potter Stewart: I assume I now accept that part of the introduction but how does it follow that everybody knows that?
Mr. Lawrence G. Wallace: Mr. Justice Stewart, the petitioner is not any body, the petitioner was someone found with 275 bags of heroin in his possession and he is comparable perhaps to a dealer in Rolls Royce automobiles.
I --I -- as a matter of common sense, the jury might infer that someone dealing in a product or found in circumstances which suggest that he is dealing in a product knows more about that product than someone who doesn't deal in it.
Justice Potter Stewart: But it's not suggested that he necessarily or people similarly situated go down to the pier and get it illegally off the ship or go out to the airport and get it illegally off the airplane, if there is an internal commerce in this product I assume.
And why does it follow as a matter of common sense that he, the person, he may know he's violating, he does know he's violating the law but nothing, how does it follow that he knows or should be presumed or sure that there should be an inference that he knows that this is in all probability has been illegally imported?
Mr. Lawrence G. Wallace: Well, if one is knowledgeable about heroin, this is, he would know that all heroin in this country has an illegal foreign origin and it's a matter of common sense the jury might infer that the dealer is knowledgeable about the product in which he is dealing.
Justice Thurgood Marshall: Was there evidence that he was dealer?
Mr. Lawrence G. Wallace: The evidence, no, no.
The evidence is that he --
Justice Thurgood Marshall: Could he have been a messenger?
Mr. Lawrence G. Wallace: It's possible but he is connected --
Justice Thurgood Marshall: If he was an average --
Mr. Lawrence G. Wallace: -- with the operation --
Justice Thurgood Marshall: I'm just saying you put so much weight on what he knows, I mean, he might just be a facilitator.
Mr. Lawrence G. Wallace: Congress has seen --
Justice Thurgood Marshall: I just don't think you'd need that part of your argument, the time it was so much quote it how he knows, who would believe that.
I believe it makes so much in my own manner to make it through.
Mr. Lawrence G. Wallace: Well, in any event, Congress has seen fit to make knowledge of illegal importation and element of the crime and to give an opportunity to someone to prove his innocence by proving that he did not know of the illegal importation.
Justice Thurgood Marshall: How would he prove --
Mr. Lawrence G. Wallace: The statute was an act --
Justice Thurgood Marshall: How would he prove it?
Mr. Lawrence G. Wallace: Now, just by --
Justice Thurgood Marshall: By just --
Mr. Lawrence G. Wallace: -- submitting his testimony to the jury and seeing if they would believe him.
Justice Thurgood Marshall: I guess that takes tax stamp stupid, they don't have to --
Mr. Lawrence G. Wallace: He could disclaim knowledge of --
Justice Thurgood Marshall: He would have to take a stand of --
Mr. Lawrence G. Wallace: the originative of narcotics?
Justice Thurgood Marshall: But he would have to take a stand?
Mr. Lawrence G. Wallace: Unless he had some witness who is willing to swear to some evidence other than hearsay, it can be conceived that would indicate that he was knowledgeable.
Chief Justice Warren E. Burger: There have, there had been cases where professors of chemistry and other experts in drug have been tendered by the defense, is that not so?
Mr. Lawrence G. Wallace: I don't know of any such case --
Chief Justice Warren E. Burger: The final Court level, yes.
Mr. Lawrence G. Wallace: -- but there is nothing to foreclose such evidence from being introduced.
But in any event, as the Chief Justice indicated in his reference to the principle that possession of the fruits of crime recently after his commission justifies an influence that the possession is guilty possession.
But knowledge is frequently of it inferred from the circumstances of the case in situations comparable to that contemplated by this statute and this is widely done in both state and federal law, for example in the enforcement of the national motor vehicle fastback, the so called direct.
And in the words this Court used in Gainey for Congress to authorized the jury to do this is to authorize it to do no more than accord to the evidence if unexplained, its natural prohibitive force.
We also contend that the presumption in the tax stamp statute was validly applied to petitioner's possession of the heroin since as we have documented in our brief, heroin is not available in tax stamp packages, there is no way petitioner could have procured it in or from the original stamp package and it follows that Congress constitutionally could authorize the jury to infer from his possession of the heroin that he had purchased it in violation of the tax stamps statute which in contrast to Section 174 does not include specific knowledge as an element of the offense.
As to the cocaine counts, we first concede that the application of the Section 174 presumption to petitioner's possession of the relatively small amount of cocaine involved in this case was not warranted under the constitutional standard, explained and applied last term in Leary.
This is because in contrast to heroin, there are as indicated in our brief and its appendix, substantial quantities of cocaine stolen from legitimate sources in this country every year while comparison of these figures with the admittedly rough estimates set forth in the footnote on page 31 of our brief of the quantities of cocaine annually smuggled into this country might justify an inference that the cocaine found in the elicit trade was in fact was illegally imported.
We do not believe that the further inference of knowledge of its illegal importation meets the Leary standard in such a case as the present one involving less than ¾ of a gram of cocaine.
Justice Potter Stewart: A practical result of your, of that concession would be I hear submission plot that we, just that automatically five years come off of this total sentence or that the Court if in case we agree on the rest of your argument or that the Court remand to the sentencing judge to re-sentence entirely?
Mr. Lawrence G. Wallace: I would say the latter Mr. Justice.
It -- otherwise the reversal just eliminates the part of the concurring sentence.
Justice Potter Stewart: Now, it would eliminate a 10 year sentence which is running concurrently with the five year sentence?
Mr. Lawrence G. Wallace: That is correct.
Justice Potter Stewart: Be it, practically it would reduce a total 20 year sentence to a total of 15 years sentence?
Mr. Lawrence G. Wallace: That is correct.
Either alternative would accomplish the same thing presumably and I think either would be an acceptable procedure.
So, we do not contend that this conviction met the Leary standard but in conceding this, we do contend that this Court need not and should not now decide whether the Section 174 presumption could validly be applied to possession of cocaine in an amount so large as not reasonably likely to have been aggregated from individual thefts or in other circumstances pointing to a foreign source, there is no necessity in this case to decide whether the presumption can ever bail or it be implied.
We urge on the other hand that the tax stamp presumption was validly applied to position -- to petitioner's possession of the cocaine and the circumstances of this case as we've elaborated in our brief.
Turning now to petitioner's claims based on the privilege against self incrimination, we recognize that when a statutory presumption is applied without adequate rational foundation as we concede was the case as to one count here, one way of articulating the constitutional infirmity is to say that so applied, the presumption impermissibly impaired the defendant's right to remain silent and thus violated his Fifth Amendment privilege.
When however such a presumption is applied in compliance with the standard of rationality established by this Court, then the alleged coercion to testify stands not from any unconstitutional compulsion but from the legitimate force of the Government's case.
It is not uncommon in a criminal trial for the defendant to be faced with evidence justifying a rational inference of guilt and to have to decide whether despite attended risks of doing so, he will testify an effort to overcome the force of that evidence.
There is no reason relevant to the policies of the privilege against self incrimination for holding that the status of such a defendant differs depending on whether the jury's inference of guilt is authorized by judge made rule of evidence or by a rationally warranted statutory provision.
In either instance as the Gainey opinion recognized, the Courts have the same responsibility to decide whether the Government has made a submissible case.
And if the Government's evidence meet that standard and we contend it did hear with respect to three counts, submission of the case to the jury does not violate the constitutional privilege as this Court definitively held in Yee Hem against the United States, and the passage quoted on page 36 of our brief.
Turning finally to the instructions to the jury, although petitioner did not accept to them at the trial and did not request that the jury be charged not to draw any adverse inference from his failure to testify, he now contends that the reading of the statutory inferences to the jury in the course of the instructions constituted adverse comment on his silence.
Now, substantially the same contention was properly rejected by this Court in Gainey in which very similar instructions to the jury were upheld in a situation involving a similar statutory presumption.
Now, its true that there are passages in the instructions which were read by counsel for the petitioner which have to be understood in the context of the trial in which the matter put in issue by the defense was the question of possession, that was what they were contesting at trial and naturally, the Trial Judge emphasized to the jury that that was a crucial issue for them to decide.
But here as in Gainey, at reading the instruction as a whole, the jury was merely permitted to draw rational inferences from the unexplained circumstantial evidence presented by the Government and the jury was specifically admonished that they were to be the sole and exclusive judges of the facts and that the burden of proving guilt beyond a reasonable doubt was on the Government not withstanding the statutory presumptions.
While it might have been better practice as the Gainey opinion suggest to omit from the charge any explicit reference to the statutory provisions authorizing the inferences, the instructions as given were adequate specially in the absence of an exception and do not differ significantly from those upheld in Gainey.
It is therefore our position that accept as to count three, this Court should affirm the judgment upholding the jury verdict.
Chief Justice Warren E. Burger: Thank you Mr. Wallace.
You have two minutes left to Mr. DuBois and we'd like to let you get back to New York tonight so, you may proceed.
Rebuttal of Josiah E. Dubois, Jr.
Mr. Josiah E. Dubois, Jr.: I just want to say Yee Hem and Casey decisions were decided before judge and reading the Yee Hem decision particularly that part called Government's brief and the judge's decision is different like day and night.
Secondly, I would like to say that the argument here still seem to ignore the fact that the lower court judge said, obviously there is no evidence, that this defendant knew that this cocaine, heroin had been unlawfully imported and then he added that the statute recognizes the possibility of proving that, that's why he is charged.
And thirdly, may I here to point out that as I did before that the section relating to stamps does not make possession a crime or the indictment contain the word possession and the conviction containing the word possession.
Chief Justice Warren E. Burger: Thank you Mr. DuBois, Mr. Rivkin and Mr. Wallace.
Thank you for your submission.
The case is submitted.