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Legal References

Legal References on Drug Policy

Federal Court Decisions on Drugs by Decade

1960

Year Title and Summary

1961
US Supreme Court

WILSON v. SCHNETTLER ET AL. - February 27, 1961

Respondents, who are federal agents, arrested petitioner without a warrant and seized narcotics which they found on his person in the course of an incidental search. They then delivered him to state authorities who confined him in jail. After a state grand jury had indicted petitioner for possessing narcotics in violation of state law, he moved in a state court for an order suppressing use of the narcotics as evidence in his impending trial, and the state court denied the motion. Petitioner then sued in a federal district court to impound the narcotics, to enjoin their use in evidence and to enjoin respondents from testifying at petitioner's trial in the state court. Although his complaint alleged that the arrest was made without a warrant, there was no allegation that it was made without probable cause. Held : Dismissal of the complaint for failure to state a claim upon which relief could be granted is sustained. Pp. 382-388.

1961
US Supreme Court

VICENTE RIVERA VALPAIS, DEFENDANT, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE (TWO CASES) - May 5, 1961

In number 5668 the appellant's contention in a nutshell is that the Marihuana Tax Act embodied in the Revenue Code of 1939 and later in the Revenue Code of 1954 did not and could not legally apply in Puerto Rico. . .

The appellant's contention in appeal number 5679 is that the sentences imposed in 1960 on his plea of guilty to the five-count indictment are "null and void" for the reason that, concededly by inadvertence, no penalty existed in Puerto Rico for violations of 4742(a) of the Internal Revenue Code of 1954 under which he was charged in the indictment. . . .

There is nothing in the history of the amendment to show that Congress intended that sections of the Marihuana Tax Act not included in 4774 should not apply to Puerto Rico.

1962
US Court of Appeals

BERNARDINO CHIREZ HERNANDEZ, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE. - Feb. 9, 1962.

21 U.S.C. 174, 21 U.S.C.A. 174 makes it a federal offense to import narcotic drugs illegally or to deal with such drugs knowing that they have been illegally imported. The statute provides that whenever the defendant is shown "to have * * * possession" of narcotic drugs, "such possession" shall be sufficient to convict unless explained to the satisfaction of the jury. We have held in earlier cases that a defendant has "possession" of narcotic drugs within the meaning of the statute whenever the evidence, direct or circumstantial, shows that he personally shared physical custody of the narcotic drugs or had dominion and control over them. We hold in the present case that a defendant does not "have possession" of narcotic drugs within the meaning of the statute when he has neither personal physical custody nor control over the drugs, although he has engaged in a common scheme or plan with a third person, not on trial, who did have such personal custody or control of narcotic drugs.

1962
US Court of Appeals

ALFREDO DELGADO ARELLANES AND GENEVA ARELLANTS, APPELLANTS,  v.  UNITED STATES OF AMERICA, APPELLEE. - April 23, 1962.

Appellants, husband and wife, stand convicted of violations of 21 U.S.C.A. 174 & 176a. They claim that their convictions should be reversed because: 1) the evidence is insufficient to support the verdicts; 2) they were denied the full assistance of counsel which the Constitution and laws of the United States guarantee them; and 3) the court incorrectly and inadequately instructed the jury.

We conclude that insofar as Mrs. Arellanes is concerned the evidence is insufficient. That conclusion does not extend to Mr. Arellanes.

1962
US Court of Appeals

WOODRUFF PELLOM, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE. - June 8, 1962

The claim that the United States Attorney knowingly used false materials in connection with appellant's case is legally frivolous. . . .

The contention that appellant was "tricked and deceived" by his attorney, and that appellant pleaded guilty to six substantive counts under the impression that he was pleading guilty to a single count charging conspiracy justifiably may have been considered by the District Court to be plainly insubstantial.

1962
US Court of Appeals

HENRY DAVIS, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE.  - July 23, 1962

The first basis of appellant's motion to vacate was a contention that all the counts in the indictment were fatally defective in that they failed to charge that, in making the sales or in conspiring to effect them, appellant had knowingly and wilfully undertaken to violate the statute. We long ago held, however, under the Harrison Narcotics Act, that criminal intent is not an element of the offense of selling narcotic drugs in violation of the statute. . . .

The second ground of appellant's motion was a statement that he had "entered a plea of guilty with the understanding by information that the U.S. Attorney told him that he would receive more than the minimum, but it would be (the counsel's advice) from seven to ten years (See Exhibit A) but received fifteen years". Exhibit A referred to in appellant's statement and attached by him as a basis for his motion, contained nothing that could be contended to constitute an improper inducement in regard to the length of his sentence.

1962

US Supreme Court

Robinson V. California -1962.SCT.1193, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 -June 25, 1962

A California statute makes it a misdemeanor punishable by imprisonment for any person to "be addicted to the use of narcotics," and, in sustaining petitioner's conviction thereunder, the California courts construed the statute as making the "status" of narcotic addiction a criminal offense for which the offender may be prosecuted "at any time before he reforms," even though he has never used or possessed any narcotics within the State and has not been guilty of any antisocial behavior there. Held : As so construed and applied, the statute inflicts a cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Pp. 660-668.

1963
US Supreme Court

WONG SUN ET AL. v. UNITED STATES - January 14, 1963

. .  petitioners were convicted of fraudulent and knowing transportation and concealment of illegally imported heroin, . . . Although the Court of Appeals held that the arrests of both petitioners without warrants were illegal, because not based on "probable cause" within the meaning of the Fourth Amendment nor "reasonable grounds" within the meaning of the Narcotics Control Act of 1956, it affirmed their convictions, notwithstanding the admission in evidence over their timely objections of (1) statements made orally by petitioner Toy in his bedroom at the time of his arrest; (2) heroin surrendered to the agents by a third party as a result of those statements; and (3) unsigned statements made by each petitioner several days after his arrest, and after being lawfully arraigned and released on his own recognizance. The Court of Appeals held that these items were not the fruits of the illegal arrests, and, therefore, were properly admitted in evidence. Held :

1. On the record in this case, there was neither reasonable grounds nor probable cause for Toy's arrest, since the information upon which it was based was too vague and came from too untested a source to accept it as probable cause for the issuance of an arrest warrant; and this defect was not cured by the fact that Toy fled when a supposed customer at his door early in the morning revealed that he was a narcotics agent. Pp. 479-484.

2. On the record in this case, the statements made by Toy in his bedroom at the time of his unlawful arrest were the fruits of the agents' unlawful action, and they should have been excluded from evidence. Pp. 484-487.

3. The narcotics taken from a third party as a result of statements made by Toy at the time of his arrest were likewise fruits of the unlawful arrest, and they should not have been admitted as evidence against Toy. Pp. 487-488.

4. After exclusion of the foregoing items of improperly admitted evidence, the only proofs remaining to sustain Toy's conviction are his and his codefendant's unsigned statements; any admissions of guilt in Toy's statement require corroboration; no reference to Toy in his codefendant's statement constitutes admissible evidence corroborating any admission by Toy; and Toy's conviction must be set aside for lack of competent evidence to support it. Pp. 488-491.

5. In view of the fact that, after his unlawful arrest, petitioner Wong Sun had been lawfully arraigned and released on his own recognizance and had returned voluntarily several days later when he made his unsigned statement, the connection between his unlawful arrest and the making of that statement was so attenuated that the unsigned statement was not the fruit of the unlawful arrest and, therefore, it was properly admitted in evidence. P. 491.

6. The seizure of the narcotics admitted in evidence invaded no right of privacy of person or premises which would entitle Wong Sun to object to its use at his trial. Pp. 491-492.

7. Any references to Wong Sun in his codefendant's statement were incompetent to corroborate Wong Sun's admissions, and Wong Sun is entitled to a new trial, because it is not clear from the record whether or not the trial court relied upon his codefendant's statement as a source of corroboration of Wong Sun's confession. Pp. 492-493.

1963
US Court of Appeals

ALI DILER SIMSIRDAG, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE. - March 21, 1963.

The defendant was convicted of possession of marijuana --

The government rested its case in chief before offering the seized marihuana in evidence. Shortly thereafter the defense moved for a directed verdict. Before the defense rested, the Government moved the trial court to allow it to reopen its case for the purpose of introducing the seized marihuana in evidence. The trial court allowed the case to be reopened and received the evidence. Simsirdag claims this was error.

It is within the sound discretion of the trial court to reopen a case and receive additional evidence. Reining v. United States, 5 Cir., 1948, 167 F.2d 362, cert. den. 335 U.S. 830, 69 S. Ct. 49, 93 L. Ed. 383. In this case the omission of the Government to introduce the marihuana was through mere inadvertence. We hold that the trial court did not abuse its discretion and no prejudicial error was committed.

1964
US Supreme Court

BECK v. UNITED STATES - January 6, 1964

Petitioner was convicted by a jury of violating 21 U. S. C. 176a -- smuggling marihuana into the United States. The Court of Appeals affirmed. 317 F.2d 865. A principal witness for the Government was a woman, Janet Watkins, arrested with petitioner, the marihuana having been discovered in her hair. Before petitioner's trial, she pleaded guilty to transporting marihuana without having paid a transfer tax, and the smuggling charge against her was then dismissed. At the trial, she testified on cross-examination that her guilty plea was still in effect, that no action, personally or through an attorney, had been taken to withdraw it, and that she did not then intend to withdraw it. The judge instructed the jury that he had accepted the plea only after she admitted knowing that the marihuana was in her hair.

. . . . In support of his request that the case be remanded to the Federal District Court for an inquiry into the propriety of what had transpired, petitioner presented this newly discovered letter from one of the woman's attorneys to the other:

. . . .  "The present course of action is as follows: Janet will be a witness for the Government against Mr. Beck. After she testifies against him, Janet will withdraw her plea of guilty to not guilty, and the cases will be tried before the court if tried at all. Although the Government has not promised anything, they have as much as indicated her cases will be dismissed. . . ."

Had all these facts been known and disclosed at the time of the trial they might have had an effect on the outcome. . . .

. . . I would grant certiorari, reverse the judgement below, and remand the case for a new trial. Cf. Brady v. Maryland, 373 U.S. 83.

1964
US Supreme Court

CARLOS MARCELLO, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE. - March 12, 1964.

Carlos Marcello was charged . . . for violations of the Marihuana Act of 1937. Marcello appeared in open court with counsel, . .  On October 29, 1938, a Saturday, Marcello in open court changed his plea to guilty before Circuit Judge Rufus E. Foster, and was sentenced to one year and one day by Judge Foster. . . .. Marcello has completely served his sentence for violation of the Marihuana Tax Act of 1937. Deportation proceedings were instigated against Marcello, and a deportation order has been rendered against Marcello as an undesirable alien. This deportation order was based upon the 1938 marihuana conviction. . . . Marcello attacked the constitutionality of his October 29, 1938 conviction for the first time on September 25, 1961, by a petition in the nature of a writ of error coram nobis .

The appellee contends the trial court committed no error in finding that the greater weight of credible evidence, the parole report, the judgement and commitment, and the testimony of Judge J. Skelly Wright and The Honorable Judge Herbert W. Christenberry, support the presumption of regularity of the judgement and commitment of Marcello.

It is our opinion that the trial court correctly held the appellant had a "severe burden of proof" or a "heavy burden" to overcome the presumption of regularity of the federal court records. 

1964
US Supreme Court

MASSIAH v. UNITED STATES - May 18, 1964

Government agents, while continuing to investigate narcotics activities including those of petitioner, who had retained a lawyer and was free on bail after indictment, without petitioner's knowledge secured an alleged confederate's consent to install a radio transmitter in the latter's automobile. An agent was thereby enabled to overhear petitioner's damaging statements which, despite his objection, were used in the trial which resulted in his conviction. Held : Incriminating statements thus deliberately elicited by federal agents from the petitioner, in the absence of his attorney, deprived the petitioner of his right to counsel under the Sixth Amendment; therefore such statements could not constitutionally be used as evidence against him in his trial. Pp. 201-207.

1965
US Supreme Court

ANGELET v. FAY, WARDEN - June 7, 1965

Petitioner was convicted in a New York State court in 1951 for a narcotics violation based on an illegal search of his apartment conducted by local police joined by federal narcotics agents. After the decision in Mapp v. Ohio, 367 U.S. 643, petitioner sought a writ of . The federal District Court denied the writ and the Court of Appeals affirmed. Held :

1. The exclusionary rule of Mapp v. Ohio does not apply retrospectively. Linkletter v. Walker, ante, p. 618, followed.

2. The participation of federal agents in the search and seizure does not require reversal. Rea v. United States, 350 U.S. 214, distinguished. Even if an exclusionary rule were fashioned to bar the federal agents' testimony, it would not, under Linkletter v. Walker, have retrospective application. .

1966
US Court of Appeals

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. FRANK BARNEY, DEFENDANT-APPELLANT - November 30, 1966

Barney challenged his conviction on two grounds, sufficiency of the evidence, and competency of his counsel.  Both grounds were denied.

1966
US Supreme Court

LEWIS v. UNITED STATES - December 12, 1966

An undercover federal narcotics agent, by misrepresenting his identity on the telephone, was twice invited to the home of petitioner for the purpose of executing unlawful narcotics transactions. Petitioner was thereafter indicted and convicted under 26 U. S. C. 4742 (a). Rejecting petitioner's motion to suppress the purchased narcotics as illegally seized without a warrant, the trial court found petitioner guilty and the Court of Appeals affirmed. Held : The facts of this case present no violation of the Fourth Amendment.

1967
US Court of Appeals
5th Circuit

ALFREDO FRANCISCO GONZALEZ, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE - January 27, 1967

The defendant Alfredo Francisco Gonzalez appeals from his conviction upon two counts of an indictment charging him and Jose de la Paz with having obtained or otherwise acquired non-taxpaid marihuana in violation of the marihuana Tax Act, 26 U.S.C.A. 4744(a). The three errors which he alleges all stem from a single contention, namely, that he was not proved to have had actual or constructive possession of the marihuana which he was charged with having obtained or otherwise acquired. We find no merit in this contention. On the contrary, the evidence presented to the jury by the Government disclosed a classical case of constructive possession by Gonzalez in which marihuana in the custody of de la Paz was completely subject to Gonzalez's disposal and was actually delivered at his direction to a federal narcotic agent by de la Paz. The district court did not err in instructing the jury as to the law of constructive possession, in permitting the marihuana in question to be offered in evidence, or in denying Gonzalez's motion for a directed verdict.

1967
US Court of Appeals

TIMOTHY LEARY, APPELLANT,  v. UNITED STATES OF AMERICA, APPELLEE  - September 29, 1967

Dr. Timothy Leary challenged his conviction for possession of marijuana on the grounds that the Marihuana Tax Act required self-incrimination in order to comply with it.  The case went to the Supreme Court, below, where the Marihuana Tax Act was declared unconstitutional.

1968
US Supreme Court

FONTAINE v. CALIFORNIA - April 8, 1968

Petitioner was convicted on the basis of circumstantial evidence of selling marihuana to an informer, who disappeared during the period the State delayed bringing the case to trial. The District Court of Appeal (on the basis of Griffin v. California, 380 U.S. 609 (1965), decided after petitioner's trial) held that the prosecutor's comments on petitioner's failure to testify and the trial court's instruction that the jury could draw adverse inferences from petitioner's silence violated petitioner's privilege against self-incrimination but that the error was harmless. . . .   Held : In the absence of testimony of the informer supporting the State's version of disputed issues, the State has not met its burden of proving beyond a reasonable doubt that the erroneous comments of the prosecutor and the trial judge's instruction did not contribute to the petitioner's conviction. Chapman v. California, supra, at 24, 25-26.

1968
US Supreme Court

SABBATH v. UNITED STATES - June 3, 1968

One Jones was apprehended crossing the border from Mexico with cocaine, allegedly given to him by, and to be delivered to, "Johnny" in Los Angeles. Customs officers arranged for Jones to make delivery. Shortly after Jones entered "Johnny's" apartment, customs agents, without a warrant, knocked on the door, waited a few seconds, and, receiving no response, opened the unlocked door and entered. They arrested petitioner, searched the apartment, and found the cocaine and other items. The cocaine was introduced over objection at petitioner's trial for knowingly importing and concealing narcotics, and he was convicted. The Court of Appeals held that the agents did not "break open" the door within the meaning of 18 U. S. C. 3109, which provides in part that an "officer may break open any outer or inner door or window of a house . . . to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him," and that they were therefore not required to make a prior announcement of "authority and purpose." Held :

1. The validity of an entry of a federal officer to effect a warrantless arrest "must be tested by criteria identical to those embodied in" 18 U. S. C. 3109, which deals with an entry to execute a search warrant. Miller v. United States, 357 U.S. 301; Wong Sun v. United States, 371 U.S. 471. Pp. 588-589.

2. Section 3109, a codification of the common-law rule of announcement, basically proscribes an unannounced intrusion into a dwelling, which includes opening a closed but unlocked door. Pp. 589-591.

3. Whether or not exigent circumstances would excuse compliance with 3109, here there were none, as the agents had no basis for assuming petitioner was armed or that he might resist arrest, or that Jones was in danger. P. 591.

1968
US Court of Appeals

UNITED STATES OF AMERICA, APPELLEE, v. WILLIAM WILSON, APPELLANT - December 5, 1968

Appellant was found guilty of selling, receiving, concealing and facilitating the transportation, concealment and sale of heroin . . . Appellant was sentenced to ten years imprisonment as a second offender under 21 U.S.C. 174.

The only question raised on this appeal is whether appellant was properly sentenced as a second offender. At the conclusion of the oral argument we held that he was. . .

1969
US Supreme Court

SKINNER ET AL. v. LOUISIANA - January 27, 1969

Gill made it clear to the court that he was suffering from diabetes and that the length of the day's trial and the lateness of the hour had exhausted him. And the court was familiar with the history of Gill's health problems. Yet, before Gill could even tell the court the level of his blood sugar, the court denied his request for a recess. I think it clear that the record establishes that Gill was seriously ill, to the knowledge of the court. I think it irrelevant that he was able to continue and present a credible defense; we should not be required to speculate when counsel is performing up to his capacity. Nor do I think it relevant that Gill did not take more affirmative action to establish the state of his health or to secure a recess or a continuance the next morning. As Gill himself testified, and his doctor confirmed, his efficiency at the time was practically nil. I find it hard to believe that court calendars are so congested that diabetic counsel must be forced to work until the early morning hours to clear them up. Accordingly, I would reverse the convictions of petitioners Skinner and Gueldner.

1969
US Supreme Court

UNITED STATES  v. COVINGTON - May 19, 1969

In this companion case to Leary v. United States, ante, p. 6, appellee was charged in a one-count indictment in the Southern District of Ohio with having violated a provision of the Marihuana Tax Act by having obtained a quantity of marihuana without having paid the transfer tax imposed by the Act. Appellee, asserting that his possession of marihuana was illegal under Ohio law and that he would have substantially risked incrimination had he complied with the Act, moved to dismiss the indictment under the authority of Marchetti v. United States, 390 U.S. 39, Grosso v. United States, 390 U.S. 62, and Haynes v. United States, 390 U.S. 85. The District Court upheld the motion to dismiss on the ground that the Fifth Amendment privilege against self-incrimination provided a complete defense to prosecution and alternatively that if (as the Government contended) appellee was not required to pay the tax, there could be no basis for the indictment. Held :

1. The decision was one which might be appealed directly to this Court under 18 U. S. C. 3731: if the dismissal of the indictment rested on the ground that the Fifth Amendment privilege would be a defense, then the decision was one "sustaining a plea in bar"; if the dismissal was based on acceptance of the Government's interpretation of the Marihuana Tax Act, then the decision necessarily was "based upon construction of the statute upon which the indictment was founded." P. 59.

2. The Marihuana Tax Act requires persons like appellee to prepay the transfer tax. Leary v. United States, supra. P. 59.

3. The Fifth Amendment privilege provides a complete defense to prosecution under that Act if the defendant's plea of self-incrimination is timely, the defendant confronts a substantial risk of self-incrimination by complying with the Act's terms, and he has not waived his privilege. Ibid. Pp. 59-61.

1969
US Court of Appeals

CARL GREGORY WITT, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE - June 6, 1969

. .  the appellant was indicted on a charge of smuggling marihuana . . 

The appellant contends that Section 176a of the Statute under which he was convicted is unconstitutional, .  .

. .  For reasons set forth in our discussion of Leary which follows, we hold that neither the cases relied upon by the appellant, nor Leary, require the reversal of the District Court in this case.

1969
US Court of Appeals
8th Circuit

HOWARD EUGENE ROWELL, APPELLANT, v. UNITED STATES OF AMERICA, APPELLEE - July 23, 1969

The contention is made that the statutes under which Rowell was convicted are unconstitutional, as his compliance therewith would have compelled him to incriminate himself in violation of his Fifth Amendment rights. Subsequent to the hearing in the district court the Supreme Court handed down its decisions in Leary v. United States . . .

There is no indication in this record that Rowell waived his Fifth Amendment rights and it is appropriate therefore that we pass upon the constitutional issue as now raised.

Following Leary and Covington, this court held in Becton, supra, and Miller, supra, handed down simultaneously with Becton, that the attempted application of 4744(a) is unconstitutional as violative of the Fifth Amendment privilege against self-incrimination.

. . . These recent decisions of this court are thus controlling and require that this case be reversed and remanded for entry of an order granting petitioner's motion to set aside the judgment of conviction.

1969

US Supreme Court

LEARY v. UNITED STATES   No. 65 1969.SCT.1512, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57

Dr. Timothy Leary was charged with possession of marijuana.  He argued that the Marihuana Tax Act was unconstitutional on the grounds that it required self-incrimination in order to comply with the law.  The Supreme Court agreed with Dr. Leary and overturned the Marihuana Tax Act on constitutional grounds.

1969
US Court of Appeals

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. MARGARET WALKER, DEFENDANT-APPELLANT - August 6, 1969

First, are there any self-incriminatory aspects of the heroin commodity tax provisions which make invalid appellant's conviction under 4704(a) for dispensing and distributing from an unstamped package? Second, is the presumption of 4704(a) a violation of due process because of an inadequate nexus between mere possession and the prohibited conduct which the statute permits to be inferred from possession? Third, does the operation of the presumption found in 4704(a) in effect either require a defendant to take the stand or suffer the kind of unfavorable comment on his failure to take the stand which the Supreme Court invalidated in Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965)? We find nothing in Leary or other relevant authority inconsistent with affirmance here.

1969
US Court of Appeals

EFRAIN SANTOS, PETITIONER-APPELLANT, v. UNITED STATES OF AMERICA, RESPONDENT-APPELLEE - August 19, 1969

Appellant was convicted of marijuana possession and appealed on the grounds that the law required self-incrimination.  . . .

We see no legally significant reason for distinguishing between the Marchetti type statutory scheme, in which the defendant is required to personally incriminate himself, and the more subtle statutory scheme, as is found in the instant case, where the law requires the defendant to compel another to divulge equally incriminating information. Both statutory schemes confront the defendant with a real and substantial risk of incrimination. The privilege against self-incrimination provides a complete defense to prosecution for failure to comply with either incriminating scheme. There is a "right not to be criminally liable for one's previous failure to obey a statute which required an incriminatory act." Leary v. United States, (supra) , 395 U.S. at 28, 89 S. Ct. at 1544.

1969
US Court of Appeals

LEWIS WARD, PETITIONER-APPELLANT,   v. UNITED STATES OF AMERICA, RESPONDENT-APPELLEE  - August 19, 1969

. . . Ward was charged in a two-count indictment with violating federal marihuana statutes. .   .

In appellant's present 2255 petition, he contends that his conviction violates his constitutional privilege against self- incrimination, as guaranteed by the Fifth Amendment. In substance, appellant argues that the statutory provisions upon which his conviction is premised, when considered in conjunction with other interrelated sections of the Marihuana Tax Act, are inconsistent with the limitations imposed by the Fifth Amendment privilege against self-incrimination.

. .  we find that compliance with these provisions has the legal effect of exposing one to a real and appreciable risk of self-incrimination. Under the rationale of the recent Supreme Court decisions . . . we are compelled to hold that the privilege against self-incrimination provides a complete defense to the appellant's convictions.

1969
US Court of Appeals

ROBERT LYLE WALDEN, JR., APPELLANT, v.  UNITED STATES OF AMERICA, APPELLEE - October 2, 1969

Walden waived a jury and was convicted by the District Court on one conspiracy and two substantive counts of smuggling marihuana into the United States and thereafter facilitating the transfer and concealment of the marihuana in violation of 21 U.S.C. 176a. Walden contends that the requirements of declaration and invoicing contained in 21 U.S.C. 176a violate his privilege against self-incrimination as guaranteed by the Fifth Amendment to the Constitution and that he could not have transported and concealed the marihuana after importation because the importation was never completed. We affirm.

1969
US Court of Appeals

UNITED STATES OF AMERICA v. AUGUSTUS HUNT, APPELLANT - December 1, 1969

Augustus Hunt was convicted of operating an illegal liquor distillery . .

The basis of Hunt's contention is really that because both the state and Federal statutes required registration of liquor distilleries, compliance with the Federal registration requirement would have subjected him to a risk of prosecution for non-compliance with the state statute. This, he reasons, created an appreciable hazard of self-incrimination for Federal registration. We cannot agree.

1969
US Supreme Court

MINOR v. UNITED STATES - December 8, 1969

Petitioner in No. 189 was convicted of selling heroin to an undercover agent  (and)  . . . of selling marihuana . . .  The Court of Appeals affirmed both convictions over objections that the statutory obligation to sell only pursuant to an official order form violated petitioners' Fifth Amendment privilege against self-incrimination. Held :

1. With respect to the Marihuana Tax Act, the petitioner seller's claim of violation of his privilege against self-incrimination is not substantial.

(a) There is no real possibility that purchasers would comply with the order form requirement even if the seller insisted on selling only pursuant to the prescribed form, in view of the $100 per ounce tax on an unregistered transferee; the illegality under federal and state law; and the fact that the Fifth Amendment, as held in Leary v. United States, 395 U.S. 6, relieves unregistered buyers of any duty to pay the tax and secure the order form.

(b) In Leary, supra, the statute purported to make all marihuana purchases legal from the buyer's viewpoint at his option; but to exercise that option and avoid the federal penalty, he was forced to incriminate himself under other laws. Here, compliance by selling is foreclosed as a viable option, not because the seller might incriminate himself, but because he will seldom, if ever, encounter an unregistered purchaser willing and able to secure the order form. In such a case, "full and literal" compliance by the seller with 4742 (a) means simply that he cannot sell at all.

(c) That there is a small number of registered marihuana dealers does not change this result, since petitioner's customer was not a registered dealer, and it is unlikely that even a registered dealer would present an order form to an unregistered seller.

2. Petitioner seller's self-incrimination claim under the Harrison Narcotics Act is likewise insubstantial.

(a) Petitioner's argument which assumes that an order form would be forthcoming if he refused to sell without it, is unrealistic, there being no substantial possibility that a buyer could have secured an order form to obtain heroin, virtually all dealings in which are illicit.

(b) Since petitioner's customer was not a registered buyer, the alleged possibility of incrimination is purely hypothetical.

(c) Even if petitioner's customer were registered, the result would probably be the same, since it is unlikely that a registered dealer would enter the name of an unregistered seller on the order form and record what would surely be an illegal sale.  

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