Narcotics agents stopped a car in which petitioner was riding
and found a package, which petitioner had thrown away, containing
about 15 grams of a cocaine and sugar mixture, 5% of which was
cocaine, and a package in the car weighing about 48 grams
consisting of a total of 275 glassine bags containing a heroin
mixture, 15.2% of which was heroin. Petitioner was indicted and
convicted of four narcotics violations: (1) knowingly receiving,
concealing, and facilitating the transportation and concealment of
heroin knowing the heroin had been illegally imported into the
United States, in violation of 21 U.S.C. § 174; (2) knowingly
purchasing, possessing, dispensing, and distributing heroin not in
or from the original stamped package, in violation of 26 U.S.C. §
4704(a); (3) same as the first offense with regard to the cocaine
seized, and (4) same as the second offense with regard to the
cocaine. At the trial, the Government presented evidence of the
seizure of the package, but offered no evidence on the origin of
the drugs, and petitioner did not testify. Section 174 provides
that, when a
"defendant is shown to have or to have had possession of the
narcotic drug, such possession shall be deemed sufficient evidence
to authorize conviction unless the defendant explains the
possession to the satisfaction of the jury."
Section 4704(a) states that:
"It shall be unlawful for any person to purchase, sell,
dispense, or distribute narcotic drugs except in the original
stamped package or from the original stamped package, and the
absence of appropriate tax-paid stamps from narcotic drugs shall be
prima facie evidence of a violation of this subsection. .
. ."
With respect to the first and third offenses, the trial judge
charged the jury, in accord with § 174, that it could infer from
petitioner's unexplained possession of the heroin and cocaine that
petitioner knew the drugs had been illegally imported. With respect
to the second and fourth offenses, the trial judge read to the jury
the
prima facie evidence provision of § 4704(a). In the
Court of Appeals, petitioner argued that the judge's instructions
on the inferences that the jury might draw from unexplained
possession of the drugs violated his privilege
Page 396 U. S. 399
against self-incrimination by penalizing him for not testifying.
The Court of Appeals rejected this claim and affirmed, finding that
the inferences were permissible under prior decisions.
Held:
1. The trial court's instructions on the inference that might be
drawn under § 174 with respect to petitioner's possession of heroin
did not violate his right to be convicted only on a finding of
guilt beyond a reasonable doubt, and did not place impermissible
pressure on him to testify in his own defense. Pp.
396 U. S.
405-418.
(a) Since it is abundantly clear that little, if any, heroin is
made in this country, and that, therefore, virtually all heroin
consumed in the United States is illegally imported, § 174 is valid
insofar as it permits a jury to infer that heroin possessed here is
a smuggled drug, whether judged by the "more likely than not"
standard applied in
Leary v. United States, 395 U. S.
6, or by the more exacting reasonable doubt standard.
Pp.
396 U. S.
408-416.
(b) While there is no proof that petitioner knew who smuggled
his heroin or how the smuggling was done, he, like others who sell
or distribute the drug, was undoubtedly aware of the "high
probability" that the heroin in his possession originated in a
foreign country. Pp.
396 U. S.
416-418.
2. The presumption under § 174 will not support petitioner's
conviction with respect to the possession of cocaine, as the facts
show that much more cocaine is lawfully produced in, than is
smuggled into, this country, and that the amount of cocaine stolen
from legal sources is sufficiently large to negate the inference
that petitioner's cocaine came from abroad or that he must have
known that it did. Pp.
396 U. S.
418-419.
3. The conviction under § 4704(a) with respect to heroin is
affirmed. Pp.
396 U. S.
419-422.
(a) The evidence that petitioner possessed the heroin packaged
in 275 glassine bags without revenue stamps attached established
that the heroin was in the process of being distributed, an act
proscribed by the statute. P.
396 U. S.
420.
(b) When a jury returns a guilty verdict on a count charging
several acts in the conjunctive, as here, the verdict normally
stands if evidence is sufficient with respect to any one of the
acts charged. P.
396 U. S.
420.
(c) The conviction can also be sustained on the basis of the
inference in § 4704(a) of purchasing the heroin not in or from a
stamped package, as there is no reasonable doubt that the possessor
of heroin, who presumably purchased it, did not purchase
Page 396 U. S. 400
it in or from an original stamped package in view of the fact
that no lawfully manufactured or lawfully imported heroin is found
in this country. Pp.
396 U. S.
421-422.
4. Petitioner's conviction with respect to cocaine based on the
§ 4704(a) inference is not based upon sufficient evidence. Pp.
396 U. S.
422-424.
(a) Petitioner's bare possession of a small quantity of a
cocaine and sugar mixture does not establish that he was dispensing
or distributing the drug. P.
396 U. S.
423.
(b) The possibility that petitioner either stole the cocaine in
or from a stamped package or obtained it from a stamped package in
the possession of a thief is sufficiently real that a conviction
cannot be rested solely upon the presumption. Pp.
396 U. S.
423-424.
(c) To the extent that
Casey v. United States,
276 U. S. 413,
gives general approval to the § 4704(a) presumption, it is limited
by this decision. P.
396 U. S.
424.
404 F.2d 782, affirmed in part and reversed in part.
MR. JUSTICE WHITE delivered the opinion of the Court.
Petitioner was found guilty by a jury on four counts charging
violations of the federal narcotics laws. The issue before us is
the validity of the provisions of § 2 of the Act of February 9,
1909, 35 Stat. 614, as amended, 21 U.S.C. § 174, and 26 U.S.C. §
4704(a) which authorize an inference of guilt from the fact of
possession of narcotic drugs, in this case heroin and cocaine.
Page 396 U. S. 401
The charges arose from seizures by federal narcotics agents of
two packages of narcotics. On June 1, 1967, Turner and two
companions were arrested in Weehawken, New Jersey, shortly after
their automobile emerged from the Lincoln Tunnel. While the
companions were being searched, but before Turner was searched, the
arresting agents saw Turner throw a package to the top of a nearby
wall. The package was retrieved, and was found to be a foil package
weighing 14.68 grams and containing a mixture of cocaine
hydrochloride and sugar, 5% of which was cocaine. Government agents
thereafter found a tinfoil package containing heroin under the
front seat of the car. This package weighed 48.25 grams and
contained a mixture of heroin, cinchonal alkaloid, mannitol, and
sugar, 15.2% of the mixture being heroin. Unlike the cocaine
mixture, the heroin mixture was packaged within the tinfoil
wrapping in small double glassine bags; in the single tinfoil
package there were 11 bundles of bags, each bundle containing 25
bags (a total of 275 bags). There were no federal tax stamps
affixed to the package containing the cocaine or to the glassine
bags or outer wrapper enclosing the heroin.
Petitioner was indicted on two counts relating to the heroin and
two counts relating to the cocaine. The first count charged that
Turner violated 21 U.S.C. § 174 [
Footnote 1]
Page 396 U. S. 402
by receiving, concealing, and facilitating the transportation
and concealment of heroin while knowing that the heroin had been
unlawfully imported into the United States. The third count charged
the same offense with regard to the cocaine seized. The second
count charged that petitioner purchased, possessed, dispensed, and
distributed heroin not in or from the original stamped package in
violation of 26 U.S.C. § 4704(a). [
Footnote 2] The fourth count made the same charge with
regard to the cocaine. At the trial, the Government presented the
evidence of the seizure of the packages containing heroin and
cocaine, but presented no evidence on the origin of the drugs
possessed by petitioner. Petitioner did not testify. With regard to
Counts 1 and 3, the trial judge charged the jury, in accord with
the statute, that the jury could infer from petitioner's
unexplained possession of the heroin and cocaine that petitioner
knew that the drugs he possessed had been unlawfully imported. With
regard to Counts 2 and 4, the trial judge read to the jury the
statutory provision making possession of drugs not in a stamped
package "
prima facie evidence" that the defendant
purchased, sold, dispensed, or distributed
Page 396 U. S. 403
the drugs not in or from a stamped package. The jury returned a
verdict of guilty on each count. Petitioner was sentenced to
consecutive terms of 10 years' imprisonment on the first and third
counts; a five-year term on the second count was to run
concurrently with the term on the first count, and a five-year term
on the fourth count was to run concurrently with the term on the
third count.
On appeal to the Court of Appeals for the Third Circuit,
petitioner argued that the trial court's instructions on the
inferences that the jury might draw from unexplained possession of
the drugs constituted violations of his privilege against
self-incrimination by penalizing him for not testifying about his
possession of the drugs. The Court of Appeals rejected this claim
and affirmed, finding that the inferences from possession
authorized by the statutes were permissible under prior decisions
of this Court and that, therefore, there was no impermissible
penalty imposed on petitioner's exercise of his right not to
testify. 404 F.2d 782 (1968). After the Court of Appeals' decision
in this case, this Court held that a similar statutory presumption
applicable to the possession of marihuana was unconstitutional as
not having a sufficient rational basis.
Leary v. United
States, 395 U. S. 6 (1969).
We granted a writ of certiorari in this case to reconsider, in
light of our decision in
Leary, whether the inferences
authorized by the statutes here at issue are constitutionally
permissible when applied to the possession of heroin and cocaine.
395 U.S. 933.
I
The statutory inference created by § 174 has been upheld by this
Court with respect to opium and heroin,
Yee Hem v. United
States, 268 U. S. 178
(1925);
Roviaro v. United States, 353 U. S.
53 (1957), as well as by an
Page 396 U. S. 404
unbroken line of cases in the courts of appeals. [
Footnote 3] Similarly, in a case involving
morphine, this Court has rejected a constitutional challenge to the
inference authorized by § 4704(a).
Casey v. United States,
276 U. S. 413
(1928).
Leary v. United States, supra, dealt with a statute, 21
U.S.C. § 176a, providing that possession of marihuana, unless
explained to the jury's satisfaction, "shall be deemed sufficient
evidence to authorize conviction" for smuggling, receiving,
concealing, buying, selling, or facilitating the transportation,
concealment, or sale of the drug, knowing that it had bee illegally
imported. Referring to prior cases [
Footnote 4] holding that a statue authorizing the
inference of one fact from the proof of another in criminal cases
must be subjected to scrutiny by the courts to prevent "conviction
upon insufficient proof," 395 U.S. at
395 U. S. 37, the
Court read those cases as
Page 396 U. S. 405
requiring the invalidation of the statutorily authorized
inference
"unless it can at least be 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."
395 U.S. at
395 U. S. 36.
Since, judged by this standard, the inference drawn from the
possession of marihuana was invalid, it was unnecessary to
"reach the question whether a criminal presumption which passes
muster when so judged must also satisfy the criminal 'reasonable
doubt' standard if proof of the crime charged or an essential
element thereof depends upon its use."
395 U.S. at
395 U. S. 36 n.
64.
We affirm Turner's convictions under § § 174 and 4704(a) with
respect to heroin (Counts 1 and 2), but reverse the convictions
under these sections with respect to cocaine (Counts 3 and 4).
II
We turn first to the conviction for trafficking in heroin in
violation of § 174. Count 1 charged Turner with (1) knowingly
receiving, concealing, and transporting heroin which (2) was
illegally imported and which (3) he knew was illegally imported.
See Harris v. United States, 359 U. S.
19,
359 U. S. 23
(1959). For conviction, it was necessary for the Government to
prove each of these three elements of the crime to the satisfaction
of the jury beyond a reasonable doubt. The jury was so instructed,
and Turner was found guilty.
The proof was that Turner had knowingly possessed heroin; since
it is illegal to import heroin or to manufacture it here, [
Footnote 5] he was also chargeable with
knowing that his heroin had an illegal source. For all practical
purposes, this was the Government's case. The trial judge, noting
that there was no other evidence of importation
Page 396 U. S. 406
or of Turner's knowledge that his heroin had come from abroad,
followed the usual practice and instructed the jury -- as § 174
permits, but does not require, that possession of a narcotic drug
is sufficient evidence to justify conviction of the crime defined
in § 174. [
Footnote 6]
The jury, however, even if it believed Turner had possessed
heroin, was not required by the instructions to find him guilty.
The jury was instructed that it was the sole judge of the facts and
the inferences to be drawn therefrom, that all elements of the
crime must be proved beyond a reasonable doubt, and that the
inference authorized by the statute did not require the defendant
to present evidence. To convict, the jury was informed, it "must be
satisfied by the totality of the evidence irrespective
Page 396 U. S. 407
of the source from which it comes of the guilt of the defendant.
. . ." The jury was obligated by its instructions to assess for
itself the probative force of possession and the weight, if any, to
be accorded the statutory inference. If it is true, as the
Government contends, that heroin is not produced in the United
States and that any heroin possessed here must have originated
abroad, the jury, based on its own store of knowledge, may well
have shared this view and concluded that Turner was equally well
informed. Alternatively, the jury may have been without its own
information concerning the sources of heroin, and may have
convicted Turner in reliance on the inference permitted by the
statute, perhaps reasoning that the statute represented an official
determination that heroin is not a domestic product. [
Footnote 7]
Whatever course the jury took, it found Turner guilty beyond a
reasonable doubt, and the question on review is the sufficiency of
the evidence, or, more precisely, the soundness of inferring guilt
from proof of possession alone. Since the jury might have relied
heavily on the inferences authorized by the statute and included in
the court's instructions, our primary focus is on the validity of
the evidentiary rule contained in § 174. [
Footnote 8]
Page 396 U. S. 408
We conclude first that the jury was wholly justified in
accepting the legislative judgment -- if, in fact, that is what the
jury did -- that possession of heroin is equivalent to possessing
imported heroin. We have no reasonable doubt that, at the present
time, heroin is not produced in this country, and that, therefore,
the heroin Turner had was smuggled heroin.
Section 174 or a similar provision has been the law since 1909.
[
Footnote 9] For 60 years,
defendants charged under the
Page 396 U. S. 409
statute have known that the section authorizes an inference of
guilt from possession alone, that the inference is rebuttable by
evidence that their heroin originated here, and that the inference
itself is subject to challenge for lack of sufficient connection
between the proved fact of possession and the presumed fact that
theirs was smuggled merchandise.
Mobile, J. & K. C. R. Co.
v. Turnipseed, 219 U. S. 35,
219 U. S. 43
(1910). Given the statutory inference and absent rebuttal evidence,
as far as a defendant is concerned, the § 174 crime is the knowing
possession of heroin. Hence, if he is to avoid conviction, he faces
the urgent necessity either to rebut or to challenge successfully
the possession inference by demonstrating the fact or the
likelihood of a domestic source for heroin, not necessarily by his
own testimony, but through the testimony of others who are familiar
with the traffic in drugs, whether government agents or private
experts. Over the years, thousands of defendants, most of them
represented by retained or appointed counsel, have been convicted
under 174. Although there was opportunity in every case to
challenge or rebut the inference based on possession, we are cited
to no case, and we know of none, where substantial evidence showing
domestic production of heroin has come to light. Instead, the
inference authorized by the section, although frequently
challenged, has been upheld in this Court and in countless cases in
the district courts and courts of appeals, these cases implicitly
reflecting the prevailing judicial view that heroin is not made in
this country, but rather is imported from abroad. If this view is
erroneous and heroin is or has
Page 396 U. S. 410
been produced in this country in commercial quantities, it is
difficult to believe that resourceful lawyers with adversary
proceedings at their disposal would not long since have discovered
the truth and placed it on record.
This view is supported by other official sources. In 1956, after
extensive hearings, the Senate Committee on the Judiciary found no
evidence that heroin is produced commercially in this country.
[
Footnote 10] The
President's Commission on Law Enforcement and Administration of
Justice stated in 1967 that
"[a]ll the heroin that reaches the American user is smuggled
into the country from
Page 396 U. S. 411
abroad, the Middle East being the reputed primary point of
origin. [
Footnote 11]"
The factors underlying these judgments may be summarized as
follows: first, it is plain enough that it is illegal both to
import heroin into this country [
Footnote 12] and to manufacture it here; [
Footnote 13] heroin is contraband, and is
subject to seizure. [
Footnote
14]
Second, heroin is a derivative of opium and can be manufactured
from opium or from morphine or codeine,
Page 396 U. S. 412
which are also derived from opium. [
Footnote 15] Whether heroin can be synthesized is
disputed, but there is no evidence that it is being synthesized in
this country. [
Footnote
16]
Third, opium is derived from the opium poppy, which cannot be
grown in this country without a license. [
Footnote 17] No licenses are outstanding for
commercial cultivation, [
Footnote 18] and
Page 396 U. S. 413
there is no evidence that the opium poppy is illegally grown in
the United States. [
Footnote
19]
Fourth, the law forbids the importation of any opium product
except crude opium required for medical and scientific purposes;
[
Footnote 20] importation of
crude opium for the purpose of making heroin is specifically
forbidden. [
Footnote 21]
Sizable amounts of crude opium are legally imported and used to
make morphine and codeine. [
Footnote 22]
Fifth, the flow of legally imported opium and of legally
manufactured morphine and codeine is controlled too tightly to
permit any significant possibility that heroin is manufactured or
distributed by those legally licensed to deal in opium, morphine,
or codeine. [
Footnote
23]
Page 396 U. S. 414
Sixth, there are recurring thefts of opium, morphine, and
codeine from legal channels which could be used for the domestic,
clandestine production of heroin. [
Footnote 24] It is extremely unlikely that heroin would
be made from codeine, since the process involved produces an
unmanageable, penetrating stench which it would be very difficult
to conceal. [
Footnote 25]
Clandestine manufacture of heroin from opium and morphine would not
be subject to this difficulty; but, even on the extremely unlikely
assumption that all opium and morphine stolen each year is used to
manufacture heroin, the heroin so produced would amount to only a
tiny fraction (less than 1%) of the illicit heroin illegally
imported and marketed here. [
Footnote 26] Moreover, a clandestine laboratory
manufacturing
Page 396 U. S. 415
heroin has not been discovered in many years. [
Footnote 27]
Concededly, heroin could be made in this country, at least in
tiny amounts. But the overwhelming evidence is that the heroin
consumed in the United States
Page 396 U. S. 416
is illegally imported. To possess heroin is to possess imported
heroin. Whether judged by the "more likely than not" standard
applied in
Leary v. United States, supra, or by the more
exacting reasonable doubt standard normally applicable in criminal
cases, § 174 is valid insofar as it permits a jury to infer that
heroin possessed in this country is a smuggled drug. If the jury
relied on the § 174 instruction, it was entitled to do so.
[
Footnote 28]
Given the fact that little if any heroin is made in the United
States, Turner doubtless knew that the heroin he had came from
abroad. There is no proof that he had specific knowledge of who
smuggled his heroin or when or how the smuggling was done, but we
are confident that he was aware of the "high probability" that the
heroin in his possession had originated in a foreign country.
Cf. Leary v. United States, supra, at
395 U. S. 45-53.
[
Footnote 29]
It may be that the ordinary jury would not always know that
heroin illegally circulating in this country is not manufactured
here. But Turner and others who sell or distribute heroin are in a
class apart. [
Footnote 30]
Such
Page 396 U. S. 417
people have regular contact with a drug which they know cannot
be legally bought or sold; their livelihood depends on its
availability; some of them have actually engaged in the smuggling
process. The price, supply, and quality vary widely; [
Footnote 31] the market fluctuates
with the ability of smugglers to outwit customs and narcotics
agents at home and abroad. [
Footnote 32] The facts concerning heroin are available
from many sources, frequently in the popular media. "Common sense"
(
Leary v. United States, supra, at
395 U. S. 46)
tells us that those who traffic in heroin will inevitably become
aware that the product they deal in is smuggled, [
Footnote 33] unless they practice a studied
ignorance to which they are not entitled. [
Footnote 34] We therefore have little doubt that
the inference of knowledge from the fact of possessing smuggled
heroin is a sound one; hence, the court's instructions on the
inference did not violate the right of Turner to be convicted only
on a finding of guilt
Page 396 U. S. 418
beyond a reasonable doubt, and did not place impermissible
pressure upon him to testify in his own defense. [
Footnote 35] His conviction on Count 1 must
be affirmed.
III
Turning to the same § 174 presumption with respect to cocaine,
we reach a contrary result. In
Erwing v. United States,
323 F.2d 674 (C.A. 9th Cir.1963), a case involving a prosecution
for dealing in cocaine, two experts had testified, one for the
Government and one for the defense. It was apparent from the
testimony that, while it is illegal to import cocaine, coca leaves,
from which cocaine is prepared, are legally imported for processing
into cocaine to be used for medical purposes. There was no evidence
that sizable amounts of cocaine are either legally imported or
smuggled. The trial court instructed on the § 174 presumption, and
conviction followed, but the Court of Appeals for the Ninth Circuit
reversed, finding the presumption insufficiently sound to permit
conviction.
Supplementing the facts presented in
Erwing, supra, the
United States now asserts that substantial amounts of cocaine are
smuggled into the United States. However, much more cocaine is
lawfully produced in this country than is smuggled into this
country. [
Footnote 36] The
United States
Page 396 U. S. 419
concedes that thefts from legal sources, though totaling
considerably less than the total smuggled, [
Footnote 37] are still sufficiently large to
make the § 174 presumption invalid as applied to Turner's
possession of cocaine. [
Footnote
38] Based on our own examination of the facts now before us, we
reach the same conclusion. Applying the "more likely than not"
standard employed in
Leary, supra, we cannot be
sufficiently sure either that the cocaine that Turner possessed
came from abroad or that Turner must have known that it did. The
judgment on Count 3 must be reversed. [
Footnote 39]
IV
26 U.S.C. § 4704(a) [
Footnote
40] makes it unlawful to purchase, sell, dispense, or
distribute a narcotic drug not in or from the original package
bearing tax stamps. In this case, Count 2 charged that Turner
knowingly purchased, dispensed, and distributed heroin
hydrochloride not in or
Page 396 U. S. 420
from the original stamped package. [
Footnote 41] Count 4 made the identical charge with
respect to cocaine. Section 474(a) also provides that the absence
of appropriate tax stamps shall be
prima facie evidence of
a violation by the person in whose possession the drugs are found.
This provision was read by the trial judge to the jury. The
conviction on Count 2 with respect to heroin must be affirmed.
Since the only evidence of a violation involving heroin was
Turner's possession of the drug, the jury, to convict, must have
believed this evidence. But part and parcel of the possession
evidence, and indivisibly linked with it, was the fact that Turner
possessed some 275 glassine bags of heroin without revenue stamps
attached. This evidence, without more, solidly established that
Turner's heroin was packaged to supply individual demands, and was
in the process of being distributed, an act barred by the statute.
The general rule is that, when a jury returns a guilty verdict on
an indictment charging several acts in the conjunctive, as Turner's
indictment did, the verdict stands if the evidence is sufficient
with respect to any one of the acts charged. [
Footnote 42] Here, the evidence proved Turner
was distributing heroin. The status of the case with respect to the
other allegations is irrelevant to the
Page 396 U. S. 421
validity of Turner's conviction. So, too, the instruction on the
presumption is beside the point, since, even if invalid, it was
harmless error; the jury must have believed the possession evidence
which, in itself, established a distribution barred by the
statute.
Moreover, even if the evidence as to possession is viewed as
not, in itself, proving that Turner was distributing heroin, his
conviction must be affirmed. True, the statutory inference, which,
on this assumption, would assume critical importance, could not be
sustained insofar as it authorized an inference of dispensing or
distributing (or of selling if that act had been charged), for the
bare fact of possessing heroin is far short of sufficient evidence
from which to infer any of these acts.
Cf. Tot v. United
States, 319 U. S. 463
(1943);
United States v. Romano, 382 U.
S. 136 (1965). But the inference of purchasing in or
from an unstamped package is another matter.
Those possessing heroin have secured it from some source. The
act of possessing is itself sufficient proof that the possessor has
not received it in or from the original stamped package, since it
is so extremely unlikely that a package containing heroin would
ever be legally stamped. All heroin found in this country is
illegally imported. Those handling narcotics must register;
[
Footnote 43] registered
persons do not deal in heroin, and only registered importers and
manufacturers are permitted to purchase stamps. [
Footnote 44] For heroin to be found in a
stamped package, stamps would have to be stolen and fixed to the
heroin container, and even then the stamps would immunize the
transactions in the drug only from prosecution under § 4704(a); all
other laws against transactions in heroin would be unaffected by
the presence of the stamps.
Page 396 U. S. 422
There can thus be no reasonable doubt that one who possesses
heroin did not obtain it from a stamped package.
Even so, obtaining heroin other than in the original stamped
package is not a crime under § 4704(a). Of the various ways of
acquiring heroin,
e.g., by gift, theft, bailment or
purchase, only purchasing is proscribed by the section. Since
heroin is a high-priced product, [
Footnote 45] it would be very unreasonable to assume that
any sizable number of possessors have not paid for it, one way or
another. Perhaps a few acquire it by gift, and some heroin
undoubtedly is stolen, but most users may be presumed to purchase
what they use. The same may be said for those who sell, dispense,
or distribute the drug. There is no reasonable doubt that a
possessor of heroin who has purchased it did not purchase the
heroin in or from the original stamped package. We thus would
sustain the conviction on Count 2 on the basis of a purchase not in
or from a stamped package even if the evidence of packaging did not
point unequivocally to the conclusion that Turner was distributing
heroin not in a stamped package.
V
Finally, we consider the validity of the § 470(a) presumption
with respect to cocaine. The evidence was that, while in the
custody of the police, Turner threw away a tinfoil package
containing a mixture of cocaine and sugar, which, according to the
Government, is not the form in which cocaine is distributed for
medicinal purposes. [
Footnote
46] Unquestionably, possession was amply proved by the
evidence, which the jury must have believed, since it returned a
verdict of guilty. But the
Page 396 U. S. 423
evidence with respect to Turner's possession of cocaine does not
so surely demonstrate that Turner was in the process of
distributing this drug. Would the jury automatically and
unequivocally know that Turner was distributing cocaine simply from
the fact that he had 14.68 grams of a cocaine and sugar mixture?
True, his possession of heroin proved that he was dealing in drugs,
but having a small quantity of a cocaine and sugar mixture is
itself consistent with Turner's possessing the cocaine not for sale
but exclusively for his personal use.
Since Turner's possession of cocaine did not constitute an act
of purchasing, dispensing, or distributing, the instruction on the
statutory inference becomes critical. As in the case of heroin,
bare possession of cocaine is an insufficient predicate for
concluding that Turner was dispensing or distributing. As for the
remaining possible violation, purchasing other than in or from the
original stamped package, the presumption, valid as to heroin, is
infirm as to cocaine.
While one can be confident that cocaine illegally manufactured
from smuggled coca leaves or illegally imported after manufacturing
would not appear in a stamped package at any time, cocaine, unlike
heroin, is legally manufactured in this country; [
Footnote 47] and we have held that
sufficient amounts of cocaine are stolen from legal channels to
render invalid the inference authorized in § 174 that any cocaine
possessed in the United States is smuggled cocaine.
Supra
at
396 U. S.
418-419. Similar reasoning undermines the § 4704(a)
presumption that a defendant's possession of unstamped cocaine is
prima facie evidence that the drug was purchased not in or
from the original stamped container. The thief who steals cocaine
very probably obtains it in or from a stamped package. There is a
reasonable possibility that Turner
Page 396 U. S. 424
either stole the cocaine himself or obtained it from a stamped
package in possession of the actual thief. The possibility is
sufficiently real that a conviction resting on the § 4704(a)
presumption cannot be deemed a conviction based on sufficient
evidence. To the extent that
Casey v. United States,
276 U. S. 413
(1928), is read as giving general approval to the § 4704(a)
presumption, it is necessarily limited by our decision today.
Turner's conviction on Count 4 must be reversed.
For the reasons stated above, we affirm the judgment of
conviction as to Counts 1 and 2 and reverse the judgment of
conviction as to Counts 3 and 4.
It is so ordered.
[
Footnote 1]
Insofar as here relevant, this section provides:
"Whoever fraudulently or knowingly imports or brings any
narcotic drug into the United States or any territory under its
control or jurisdiction, contrary to law, or receives, conceals,
buys, sells, or in any manner facilitates the transportation,
concealment, or sale of any such narcotic drug after being imported
or brought in, knowing the same to have been imported or brought
into the United States contrary to law, or conspires to commit any
of such acts in violation of the laws of the United States, shall
be imprisoned. . . ."
"Whenever on trial for a violation of this section the defendant
is shown to have or to have had possession of the narcotic drug,
such possession shall be deemed sufficient evidence to authorize
conviction unless the defendant explains the possession to the
satisfaction of the jury."
Heroin, a derivative of opium, and cocaine, a product of coca
leaves, are within the meaning of the term "narcotic drug" as used
in 21 U.S.C. § 174.
See 21 U.S.C. § 171 (which refers to §
3228(g) of Int.Rev.Code of 1939, now 26 U.S.C. § 4731(a)).
[
Footnote 2]
"It shall be unlawful for any person to purchase, sell,
dispense, or distribute narcotic drugs except in the original
stamped package or from the original stamped package, and the
absence of appropriate tax-paid stamps from narcotic drugs shall be
prima facie evidence of a violation of this subsection by the
person in whose possession the same may be found."
The term "narcotic drugs" is defined to include derivatives of
opium and products of coca leaves. 26 U.S.C. § 4731(a).
[
Footnote 3]
Decisions of the courts of appeals accepting application of the
presumption to persons found in possession of opium, morphine, or
heroin include
Gee Woe v. United States, 250 F. 428 (C.A.
5th Cir.),
cert. denied, 248 U.S. 562 (1918) (smoking
opium);
Charley Toy v. United States, 266 F. 326 (C.A.2d
Cir.),
cert. denied, 254 U.S. 639 (1920) (smoking opium);
Copperthwaite v. United States, 37 F.2d 846 (C.A. 6th
Cir.1930) (morphine);
United States v. Liss, 105 F.2d 144
(C.A.2d Cir.1939) (morphine);
Dear Check Quong v. United
States, 82 U.S.App.D.C. 8, 160 F.2d 251 (1947) (unspecified
narcotics);
Cellino v. United States, 276 F.2d 941 (C.A.
9th Cir.1960) (heroin);
Walker v. United States, 285 F.2d
52 (C.A. 5th Cir.1960) (heroin);
United States v. Savage,
292 F.2d 264 (C.A.2d Cir.),
cert. denied, 368 U.S. 880
(1961) (heroin);
United States v. Gibson, 310 F.2d 79
(C.A.2d Cir.1962) (heroin);
Lucero v. United States, 311
F.2d 457 (C.A. 10th Cir.1962),
cert. denied sub nom. Maestas v.
United States, 372 U.S. 936 (1963) (heroin);
Garcia v.
United States, 373 F.2d 806 (C.A. 10th Cir.1967) (heroin).
[
Footnote 4]
Especially
Tot v. United States, 319 U.
S. 463 (1943),
United States v. Gainey,
380 U. S. 63
(1965), and
United States v. Romano, 382 U.
S. 136 (1965).
[
Footnote 5]
See infra, nn.
12 13
[
Footnote 6]
Under prior decisions, principally
United States v.
Gainey, 380 U. S. 63
(1965), such statutory provisions authorize, but do not require,
the trial judge to submit the case to the jury when the Government
relies on possession alone, authorize, but do not require, an
instruction to the jury based on the statute, and authorize, but do
not require, the jury to convict based on possession alone. The
defendant is free to challenge either the inference of illegal
importation or the inference of his knowledge of that fact, or
both.
Harris v. United States, 359 U. S.
19,
359 U. S. 23
(1959);
Roviaro v. United States, 353 U. 9. 53, 63 (1957);
Yee Hem v. United States, 268 U.
S. 178,
268 U. S. 185
(1925);
United States v. Peeples, 377 F.2d 205 (C.A.2d
Cir.1967);
Chavez v. United States, 343 F.2d 85 (C.A. 9th
Cir.1965);
Griego v. United States, 298 F.2d 845 (C.A.
10th Cir.1962). Even when the defendant challenges the validity of
the inference as applied to his case, the instruction on the
statutory inference is normally given.
See, e.g., McIntyre v.
United States, 380 F.2d 746 (C.A. 9th Cir.),
cert.
denied, 389 U.S. 952 (1967);
United States v. Peeples,
supra; Vick v. United States, 113 U.S.App.D.C. 12, 304 F.2d
379 (1962);
Griego v. United States, supra; Walker v. United
States, 285 F.2d 52 (C.A. 5th Cir.1960);
United States v.
Feinberg, 123 F.2d 425 (C.A. 7th Cir.1941),
cert.
denied, 315 U.S. 801 (1942).
See also Erwin v. United
States, 323 F.2d 674 (C.A. 9th Cir.193);
Caudillo v.
United States, 253 F.2d 513 (C.A. 9th Cir.),
cert. denied
sub nom. Romero v. United States, 367 U.S. 931 (1958).
[
Footnote 7]
In
United States v. Peeples, supra, the jury, after
deliberating for a time, asked the judge about the percentage of
heroin in the United States that is produced illegally in this
country.
"As there was no evidence in the record concerning areas of the
world where heroin is produced, the judge declined to answer the .
. . inquiry. . . ."
377 F.2d at 208. The defendant was found guilty by the jury;
however, the Court of Appeals reversed for reasons not directly
related to the trial judge's treatment of the question about the
origins of heroin possessed in this country.
[
Footnote 8]
See Leary v. United States, 395 U. S.
6,
395 U. S. 31-32
(1969);
United States v. Romano, supra, at
382 U. S.
138-139 (1965);
Bailey v. Alabama, 219 U.
S. 219, 23235 (1911).
Arguably, in declaring possession to be ample evidence to
convict for trafficking in illegally imported drugs, Congress in
effect has made possession itself a crime as an incident to its
power over foreign commerce.
Cf. Ferry v. Ramsey,
277 U. S. 88
(1928). But the crime defined by the statute is not possession, and
the Court has rejected this basis for sustaining this and similar
statutory inferences.
Leary v. United States, supra, at
395 U. S. 34,
395 U. S. 37;
United States v. Romano, supra, at 142-144;
Harris v.
United States, supra, at
359 U. S. 23;
Roviaro v. United States, supra., at
353 U. S. 62-63;
Tot v. United States, supra, at
319 U. S.
472.
The Court has also refused to accept the suggestion that, since
the source of his drugs is perhaps more within the defendant's
knowledge than the Government's, it violates no rights of the
defendant to permit conviction based on possession alone when the
defendant refuses to demonstrate a legal source for his drugs.
Leary v. United States, supra, at
395 U. S. 32-34.
See also Tot v. United States, supra, at
319 U. S.
469-470. The difficulties with the suggested approach
are obvious: if the Government proves only possession, and if
possession is itself insufficient evidence of either importation or
knowledge, but the statute nevertheless permits conviction where
the defendant chooses not to explain, the Government is clearly
relieved of its obligation to prove its case unaided by the
defendant, and the defendant is made to understand that, if he
fails to explain, he can be convicted on less than sufficient
evidence to constitute a
prima facie case.
See Tot v.
United States, supra, at
319 U. S.
469.
[
Footnote 9]
The original provision, applicable to opium and derivatives, was
contained in the Act of February 9, 1909, § 2, 35 Stat. 614. It was
revised and extended to cover cocaine and coca leaves by the Act of
May 26, 1922, § 1, 42 Stat. 596. The provision establishing the
presumption was adopted without extended discussion or debate; it
was consciously modeled on a provision of § 3082 of the Revised
Statutes (now in 18 U.S.C. § 545), originating in the Smuggling Act
of 1866, § 4, 14 Stat. 179.
See H.R.Rep. No. 1878, 60th
Cong., 2d Sess., 1-2 (1909); H.R.Rep. No. 2003, 60th Cong., 2d
Sess., 1 (1909).
See also Sandler, The Statutory
Presumption in Federal Narcotics Prosecutions, 57 J.Crim.L.C. &
P.S. 7 (1966).
[
Footnote 10]
In 1955, the Subcommittee on Improvements in the Federal
Criminal Code of the Senate Committee on the Judiciary held
hearings throughout the country on the illicit narcotics traffic in
this country. The subcommittee heard 345 witnesses, including
government officials, law enforcement officers, and addicts and
narcotics law violators; the testimony heard covers several
thousand pages. Hearings on Illicit Narcotics Traffic before the
Subcommittee on Improvements in the Federal Criminal Code of the
Senate Committee on the Judiciary, 84th Cong., 1st Sess. (1955)
(hereinafter cited as 1955 Senate Hearings). The evidence gathered
in these hearings was the basis of S. 3760, 84th Cong., 2d Sess.
(1956). The Senate bill contained a section (proposed § 1402, Tit.
18) very similar to § 174 but applicable exclusively to heroin;
this proposed section included the § 174 presumption. Another
proposed section (proposed § 1403, Tit. 18, enacted with minor
changes and now codified in 21 U.S.C. § 176b) authorized special,
severe penalties for the sale of unlawfully imported heroin to
juveniles; this section contained a provision that possession of
heroin was sufficient to prove that the heroin had been illegally
imported.
See S.Rep. No.1997, 84th Cong., 2d Sess., 30
(1956) (proposed § 1402, 1403). The presumption that heroin found
in this country has been illegally imported was based on findings
of the Committee that foreign sources supply all important
quantities of heroin circulating in this country,
id. at
3-7, and these findings were, in turn, based on ample evidence
presented to the Subcommittee on Improvements in the Federal
Criminal Code.
See 1955 Senate Hearings 90 (testimony of
Commissioner Anslinger of the Federal Bureau of Narcotics).
[
Footnote 11]
President's Commission on Law Enforcement and Administration of
Justice, Task Force Report: Narcotics and Drug Abuse 3 (197)
(hereinafter cited a Task Force Report).
See also U.N.
Commission on Narcotic Drugs, Report of the Eighteenth Session,
U.N.Doc. E/CN.7/455, p. 15 (1963); S. Jeffee, Narcotics -- An
American Plan 12-14, 63-71 (1966).
[
Footnote 12]
Title 21 U.S.C. § 173 makes it unlawful to import any narcotic
drug except amounts of crude opium and coca leaves necessary to
provide for medical and legitimate uses. In addition, for more than
45 years, it has been unlawful to import opium for the purpose of
manufacturing heroin. Act of June 7, 1924, 43 Stat. 657 (now
codified in 21 U.S.C. § 173). Though 21 U.S.C. § 513 permits the
Secretary of the Treasury to authorize the importation of any
narcotic drug for delivery to governmental officials or to any
person licensed to use the drugs for scientific purposes, the
Secretary has never authorized the importation of any heroin under
this provision. Brief for the United States 18 n. 12.
[
Footnote 13]
The Narcotics Manufacturing Act of 1960, 74 Stat. 55, 21 U.S.C.
§§ 501-517, prohibits the manufacture of narcotic drugs except
under a license issued by the Secretary of the Treasury for the
production of an approved drug. Since heroin is not considered
useful for medical purposes, no production for medical use has been
authorized; heroin used in scientific experimentation is supplied
entirely from quantities seized by law enforcement officials. Brief
for the United States 17 n. 10.
[
Footnote 14]
21 U.S.C. § 173.
See S.Rep. No.1997, 84th Cong., 2d
Sess., 7 (1956). In 1956, all heroin then lawfully outstanding was
required to be surrendered. Act of July 18, 1956, § 201, 70 Stat.
572 (codified as 18 U.S.C. § 1402).
[
Footnote 15]
The clandestine manufacture of heroin from opium or morphine is
said in one report to be "child's play." Vaille & Bailleul,
Clandestine Heroin Laboratories, 5 U.N. Bulletin on Narcotics, No.
4, Oct.-Dec.1953, pp. 1, 6. The possibility of producing heroin
from codeine (with a yield of about 22%) was first reported in
Rapoport, Lovell, & Tolbert, The Preparation of
Morphine-N-methyl-C^14, 73 J.Am.Chem.Soc. 5900 (1951), and was
verified in Gates & Tschudi, The Synthesis of Morphine, 74
J.Am.Chem.Soc. 1109 (1952). The Bureau of Narcotics and Dangerous
Drugs reports that conversion of codeine into morphine (from which
heroin may be produced) is relatively simple, and requires
inexpensive equipment but produces an extremely noxious and
penetrating odor which would make concealment of such conversion
operations virtually impossible. Supplemental Memorandum for the
United States 2.
[
Footnote 16]
The Bureau of Narcotics and Dangerous Drugs reports that it
knows of no case in which synthetic heroin has been produced; it
reports that experiments indicate that production of synthetic
morphine would be extremely difficult. Brief for the United States
20 n. 17.
Amicus Burgess suggests the possibility of
synthetic production of heroin, but cites in support only a case
involving an unsuccessful attempt to synthesize morphine,
United States v. Liss, 137 F.2d 995 (C.A.2d Cir.),
cert. denied, 320 U.S. 773 (1943). Brief for Cleveland
Burgess as
Amicus Curiae 11.
[
Footnote 17]
Opium Poppy Control Act of 1942, 56 Stat. 1045, 21 U.S.C. §§
188-188n.
[
Footnote 18]
The regulations provide that a license to produce opium poppies
shall be issued only when it is determined by the Director of the
Bureau of Narcotics and Dangerous Drugs that the medical and
scientific needs of the country cannot be met by the importation of
crude opium. 21 CFR § 303.5(a). Imports of crude opium have been
sufficient to meet all domestic medical and scientific needs, and
the United States is therefore not an opium producing country. Blum
& Braunstein, Mind-Altering Drugs and Dangerous Behavior:
Narcotics, in Task Force Report App. A-2, at 40.
See also
Brief for the United States 23 n. 25.
[
Footnote 19]
The most recent reported case involving a prosecution for
unlawful production of opium poppies is
Az Din v. United
States, 232 F.2d 283 (C.A. 9th Cir.),
cert. denied,
352 U.S. 827 (1956). Unlike the case of marihuana,
see Leary,
supra, at
395 U. S. 42-43,
there are no reports of the discovery in this country of fields of
opium poppies requiring destruction. This fact, together with the
facts that opium poppies are hard to conceal because of their color
and that the harvesting of opium is only economically feasible in
countries with an abundant supply of cheap labor, justifies a
conclusion that little if any opium poppy production is going on in
this country.
See Brief for the United States 21-23.
[
Footnote 20]
21 U.S.C. § 173.
[
Footnote 21]
Ibid. See supra, n 12.
[
Footnote 22]
In 1966, the United States imported 173,951 kilograms of crude
opium; in the same year, 715 kilograms of morphine and 30,662
kilograms of codeine were produced from imported opium. U.S.
Treasury Department, Bureau of Narcotics, Traffic in Opium and
Other Dangerous Drugs, Report for the Year Ended December 31, 1967,
p. 41 (1968).
[
Footnote 23]
The manufacture of narcotic drugs is very carefully controlled
and monitored under the Narcotics Manufacturing Act of 1960, 74
Stat. 55, 21 U.S.C. §§ 501-517. The subsequent distribution of
narcotic drugs is controlled and monitored under the laws enforcing
the taxes imposed on those dealing in narcotic drugs. 26 U.S.C. §§
4701-4707, 4721-4736, 4771-4776.
[
Footnote 24]
Because of the controls and reporting requirements applicable to
those handling narcotic drugs,
see supra, n 23, the Bureau of Narcotics and Dangerous
Drugs can compile accurate figures on the quantities of narcotic
drugs stolen from legitimate channels. From 1964 through 1968,
total thefts of medical opium per year ranged from 9.6 kilograms to
12.9 kilograms; thefts of morphine for the same period ranged from
6.7 kilograms to 10.2 kilograms per year; annual thefts of codeine
for the same years ran between 30.0 kilograms and 81.8 kilograms.
Brief for the United States 44. On the possibility of clandestine
manufacture of heroin from opium, morphine, and codeine,
see
supra, n 15.
[
Footnote 25]
See supra, n
15.
[
Footnote 26]
Using figure on the number of known addicts and the average
daily dose, federal agencies estimate that roughly 1,500 kilogram
of heroin are smuggled into the United States each year. Task Force
Report 6. The Bureau of Narcotics and Dangerous Drugs estimates
that no more than about one kilogram of heroin could have been
produced if all the opium stolen in any recent year had been
clandestinely converted into heroin. The largest total amount of
morphine stolen in a recent year would have yielded about 10.2
kilograms of heroin if it had all been converted into heroin. Brief
for the United States 19 n. 15.
If it were assumed that all stolen codeine is converted into
heroin, the figure for the possible clandestine domestic production
of heroin would be well over 1% of the total heroin marketed in
this country. Codeine can be made to yield about 22% heroin.
See supra, n 15.
Applying this conversion rate to the largest annual amount of
codeine stolen in the last five years (81.8 kilograms,
see
supra, n 24) would give
a figure of about 18 kilograms for the maximum amount of heroin
that might have been produced from stolen codeine in any recent
year. On the assumption that all stolen opium, morphine, and
codeine is converted into heroin, the amount of heroin domestically
produced from stolen opium and its derivatives would amount to no
more than about 30 kilograms, only about 2% of the 1,500 kilograms
of heroin estimated to be illegally imported each year. Whether
such a percentage, rather than the figure of less than 1% obtained
by excluding codeine from consideration, would alter our
conclusions need not be discussed, for the fact that the conversion
process creates a stench makes it unrealistic to assume that stolen
codeine is clandestinely converted into heroin.
See supra,
n 15.
[
Footnote 27]
Statement by the United States Delegation on the Illicit Traffic
to the Twenty-third Session of the U.N. Commission on Narcotic
Drugs, January 1969, U.N. Doc. SD/E/CN.7/131, Annex A, p. 3. One
respected work on narcotics makes the claim, without further
elaboration, that "recent information" leads to the conclusion that
some illicit laboratories used for the conversion of opium or
morphine into heroin are located in the United States. D. Maurer
& V. Vogel, Narcotics and Narcotic Addiction 64 (3d ed.1967).
However, the same statement, without elaboration, appears in the
1954 edition of the work, D. Maurer & V. Vogel, Narcotics and
Narcotics Addiction 50, and this fact, together with the absence of
any cited basis for the claim and the lack of supporting evidence
elsewhere in the literature, leads us to believe that the
statement, if it was ever correct, is no longer accurate.
[
Footnote 28]
It is, of course, possible for the situation to change either
through the development of a simple method of synthesizing heroin
or through the creation of substantial clandestine operations
utilizing opium or morphine which has been illegally imported or
which, though legally here, has been stolen.
[
Footnote 29]
The Court in
Leary, 395 U.S. at
395 U. S. 46 n.
93, employed the definition of "knowledge" in Model Penal Code §
2.02(7) (Proposed Official Draft, 1962):
"When knowledge of the existence of a particular fact is an
element of an offense, such knowledge is established if a person is
aware of a high probability of its existence, unless he actually
believes that it does not exist."
[
Footnote 30]
Though the federal narcotics laws are, in terms, applicable to
most possessors of illicit drugs regardless of whether the
possessor is a user or a dealer, the enforcement efforts of the
Bureau of Narcotics and Dangerous Drugs are directed to the
development of evidence against "major sources of supply, wholesale
peddlers, interstate and international violators." Hearings on the
Narcotic Rehabilitation Act of 1966 before a Special Subcommittee
of the Senate Committee on the Judiciary, 89th Cong., 2d Sess., 448
(1966) (hereinafter cited as 1966 Senate Hearings) (testimony of
Commissioner Giordano of the Federal Bureau of Narcotics). The
undisputed evidence that Turner possessed 275 glassine bags of
heroin clearly shows that Turner was more than a mere user of
heroin, and was engaged in the distribution of the drug.
[
Footnote 31]
See Task Force Report 3.
See also 1955 Senate
Hearings 3889, 4219.
[
Footnote 32]
For example, a seizure of a large amount of pure heroin in
Montreal, Canada, caused a "panic" in New York City that lasted
almost three months. 1966 Senate Hearing 87.
[
Footnote 33]
Such a conclusion is also justified with regard to those users
and addicts who frequently purchase supplies of heroin on the
retail market. Such persons are, of course, aware of the variations
in price and availability of the drug, and of the fact that the
success of anti-smuggling efforts of law enforcement officials
affects the supply of heroin on the market.
See supra this
page and nn.
31 32
[
Footnote 34]
See Griego v. United States, 298 F.2d 845, 849 (C.A.
10th Cir.1962).
[
Footnote 35]
"The same situation might present itself if there were no
statutory presumption and a
prima facie case of
concealment with knowledge of unlawful importation were made by the
evidence. The necessity of an explanation by the accused would be
quite as compelling in that case as in this; but the constraint
upon him to give testimony would arise there, as it arises here,
simply from the force of circumstances, and not from any form of
compulsion forbidden by the Constitution."
Yee Hem v. United States, 268 U.
S. 178,
268 U. S. 185
(1925).
[
Footnote 36]
In 1966, 609 kilograms of cocaine were produced. U.S. Treasury
Department, Bureau of Narcotics, Traffic in Opium and Other
Dangerous Drugs, Report for the Year Ended December 31, 1967, p. 42
(1968). Annual seizures of cocaine at ports and borders for the
years 1963 through 1967 ranged from 1.44 kilograms to 17.71
kilograms; the Bureau of Narcotics and Dangerous Drugs estimates
that no more than about 10% of cocaine that is attempted to be
smuggled into the United States is discovered and seized at ports
and borders. Brief for the United States 31 n. 31.
[
Footnote 37]
From 1963 through 1968, the amount of cocaine stolen from legal
channels annually ranged from 2.8 kilograms to 6.2 kilograms. Brief
for the United States 44.
[
Footnote 38]
Brief for the United States 282.
[
Footnote 39]
Since the illegal possessor's only source of domestic cocaine is
that which is stolen, the United States urges that the § 174
presumption may be valid with respect to sellers found with much
larger amount of cocaine than Turner had, amounts which, it is
claimed, are too large to have been removed from legal channels,
and which must therefore have been smuggled. Brief for the United
States 31. We find it unnecessary to deal with these problems, and
postpone their consideration to another day, hopefully until after
the facts have been presented in an adversary context in the
district courts.
[
Footnote 40]
See supra, n 2.
[
Footnote 41]
The indictment charged Turner with possessing heroin as well as
purchasing, dispensing, and distributing the drug. The instructions
to the jury made the same error. No objection was made in the trial
court, and the issue was not raised in the Court of Appeals or in
this Court. The error was harmless, in any event, since the
possession evidence proved that Turner was distributing heroin.
See infra this page.
[
Footnote 42]
Crain v. United States, 162 U.
S. 625,
162 U. S.
634-636 (1896);
Smith v. United States, 234
F.2d 385, 389-390 (C.A. 5th Cir.1956);
Price v. United
States, 150 F.2d 283 (C.A. 5th Cir.1945),
cert.
denied, 326 U.S. 789 (1946).
See also Claassen v. United
States, 142 U. S. 140
(1891);
The Confiscation
Cases, 20 Wall. 92,
87 U. S. 104
(1874).
[
Footnote 43]
26 U.S.C. §§ 4721, 4722.
See also 26 U.S.C. §
4702(a)(2)(C).
[
Footnote 44]
26 CFR §§ 151.130, 151.41.
[
Footnote 45]
Heroin is reported to sell for around $5 per "bag" or packet.
Task Force Report 3.
[
Footnote 46]
Brief for the United States 33.
[
Footnote 47]
Supra, n 36.
MR. JUSTICE MARSHALL, concurring in the judgment.
I concur in the judgment of the Court, affirming petitioner's
conviction on Counts 1 and 2 and reversing his conviction on Counts
3 and 4. In so doing, however, I can agree with the majority on
Count 2 only insofar as it concludes that evidence of possession of
275 glassine bags of heroin proved beyond a reasonable doubt that
Turner was distributing heroin in violation of 26 U.S.C. § 474(a).
That same evidence does not establish that he had purchased the
heroin in violation of that statute.
The opinion of the Court establishes convincingly the virtual
certainty that the heroin in Turner's possession had been illegally
imported into the country. It was thus proper with regard to Count
1 for the trial judge to instruct the jurors, in effect, that, if
they found that Turner did indeed possess the drug, they could
infer that the heroin had been illegally imported, and impute
knowledge of that fact to Turner. However, the instruction that
possession is
prima facie evidence of a violation of §
4704(a) is quite different. It may be true that most persons who
possess heroin have purchased it not in or from a stamped package.
However, Turner
Page 396 U. S. 425
himself may well have obtained the heroin involved here in any
of a number of ways -- for example, by stealing it from another
distributor, or by manufacturing or otherwise acquiring it abroad
and smuggling it into this country. Given the dangers that are
inherent in any statutory presumption or inference, some of which
are set out in the dissenting opinion of MR. JUSTICE BLACK, I
cannot agree with the wholly speculative and conjectural holding
that, because Turner possessed heroin, he must have purchased it in
violation of § 4704(a).
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins,
dissenting.
Few if any decisions of this Court have done more than this one
today to undercut and destroy the due process safeguards the
federal Bill of Rights specifically provides to protect defendants
charged with crime in United States courts. Among the accused's
Bill of Rights' guarantees that the Court today weakens are:
1. His right not to be compelled to answer for a capital or
otherwise infamous crime unless on a presentment or indictment of a
grand jury;
2. The right to be informed of the nature and cause of the
accusation against him;
3. The right not to be compelled to be a witness against
himself;
4. The right not to be deprived of life, liberty, or property
without due process of law;
5. The right to be confronted with the witnesses against
him;
6. The right to compulsory process for obtaining witnesses for
his defense;
7. The right to counsel; and
8. The right to trial by an impartial jury.
The foregoing rights are among those that the Bill of Rights
specifically spells out and that due process
Page 396 U. S. 426
requires that a defendant charged with crime must be accorded.
The Framers of our Constitution and Bill of Rights were too wise,
too pragmatic, and too familiar with tyranny to attempt to
safeguard personal liberty with broad, flexible words and phrases
like "fair trial," "fundamental decency," and "reasonableness."
Such stretchy, rubber-like terms would have left judges
constitutionally free to try people charged with crime under
will-o'-the-wisp standards improvised by different judges for
different defendants. Neither the Due Process Clause nor any other
constitutional language vests any judge with such power. Our
Constitution was not written in the sands to be washed away by each
wave of new judges blown in by each successive political wind that
brings new political administrations into temporary power. Rather,
our Constitution was fashioned to perpetuate liberty and justice by
marking clear, explicit, and lasting constitutional boundaries for
trials. One need look no further than the language of that sacred
document itself to be assured that defendants charged with crime
are to be accorded due process of law -- that is, they are to be
tried as the Constitution and the laws passed pursuant to it
prescribe, and not under arbitrary procedures that a particular
majority of sitting judges may see fit to label as "fair" or
"decent." I wholly, completely, and permanently reject the
so-called "activist" philosophy of some judges which leads them to
construe our Constitution as meaning what they now think it should
mean in the interest of "fairness and decency" as they see it. This
case and the Court's holding in it illustrate the dangers inherent
in such an "activist" philosophy.
Commercial traffic in deadly mind-, soul-, and body-destroying
drugs is, beyond doubt, one of the greatest evils of our time. It
cripples intellects, dwarfs bodies, paralyzes the progress of a
substantial segment of
Page 396 U. S. 427
our society, and frequently makes hopeless and sometimes violent
and murderous criminals of persons of all ages who become its
victims. Such consequences call for the most vigorous laws to
suppress the traffic, as well as the most powerful efforts to put
these vigorous laws into effect. Unfortunately, grave evils such as
the narcotics traffic can too easily cause threats to our basic
liberties by making attractive the adoption of constitutionally
forbidden shortcuts that might suppress and blot out more quickly
the unpopular and dangerous conduct. That is exactly the course I
think the Court is sanctioning today. I shall now set out in more
detail why I believe this to be true.
Count 1 of the indictment against Turner, as the Court's opinion
asserts, and as I agree,
"charged Turner with (1) knowingly receiving, concealing, and
transporting heroin which (2) was illegally imported and which (3)
he knew was illegally imported. . . . For conviction, it was
necessary for the Government to prove each of these three elements
of the crime to the satisfaction of the jury beyond a reasonable
doubt."
Ante at
396 U. S. 405.
The Court in the above statement is merely reaffirming the
fundamental constitutional principle that the accused is presumed
innocent until he is proved guilty, and that the Government, before
it can secure a conviction, must demonstrate to the jury beyond a
reasonable doubt each essential element of the alleged offense.
This basic principle is clearly reflected in several provisions of
the Bill of Rights. The Fifth and Sixth Amendments provide that, as
a part of due process of law, a person held for criminal
prosecution shall be charged on a presentment or indictment of a
grand jury, and that the defendant shall "be informed of the nature
and cause of the accusation." The purpose of these requirements
Page 396 U. S. 428
is obviously to compel the Government to state and define
specifically what it must prove in order to convict the defendant,
so that he can intelligently prepare to defend himself on each of
the essential elements of the charge. And to aid the accused in
making his defense to the charges thus defined, the Bill of Rights
provides the accused explicit guarantees -- the privilege against
self-incrimination, the right to counsel, the right to confront
witnesses against him, and to call witnesses in his own behalf --
all designed to assure that the jury will, as nearly as humanly
possible, be able to consider fully all the evidence and determine
the truth of every case.
Having invoked the above principles, however, the Court then
proceeds to uphold Turner's conviction under Count I despite the
fact that the prosecution introduced absolutely no evidence at
trial on two of the three essential elements of the crime. To show
this, I think one need look no further than the Court's own
opinion. The Court says:
"The proof was that Turner had knowingly possessed heroin; since
it is illegal to import heroin or to manufacture it here, he was
also chargeable with knowing that his heroin had an illegal source.
For all practical purposes, this was the Government's case."
Ante at
396 U. S.
405.
"Whatever course the jury took, it found Turner guilty beyond a
reasonable doubt, and the question on review is the sufficiency of
the evidence, or, more precisely, the soundness of inferring guilt
from
proof of possession alone."
Ante at
396 U. S. 407.
(Emphasis added.) These passages show that the Government wholly
failed to meet its burden of proof at trial on two of the elements
Congress deemed essential to the crime it defined. The prosecution
introduced no evidence to prove either
Page 396 U. S. 429
(1) that the heroin involved was illegally imported or (2) that
Turner knew the heroin was illegally imported. The evidence showed
only that Turner was found in possession of heroin.
I do not think a reviewing court should permit to stand a
conviction as wholly lacking in evidentiary support as is Turner's
conviction under Count 1.
Bozza v. United States,
330 U. S. 160
(1947).
See also Thompson v. Louisville, 362 U.
S. 199 (1960). When the evidence of a crime is
insufficient as a matter of law, as the evidence here plainly is, a
reversal of the conviction is in accord with the historic principle
that
"independent trial judges and independent appellate judges have
a most important place under our constitutional plan, since they
have power to set aside convictions."
United States ex rel. Toth v. Quarles, 350 U. S.
11,
350 U. S. 19
(1955). I would therefore reverse Turner's conviction under Count 1
without further ado. Moreover, as the majority opinion and the
record in this case indicate, petitioner's convictions under Counts
3 and 4 are also based upon totally insufficient evidence, for, as
in Count 1, the prosecution failed to introduce any evidence to
support certain essential elements of the crimes charged under
these counts. They, too, should be reversed for lack of
evidence.
The Court attempts to take the stark nakedness of the evidence
against Turner on these counts and clothe it in "presumptions" or
"inferences" authorized by 21 U.S.C. § 174 and 26 U.S.C. § 4704(a).
Apparently the Court feels that the Government can be relieved of
the constitutional burden of proving the essential elements of its
case by a mere congressional declaration that certain evidence
shall be deemed sufficient to convict. Such an idea seems to me to
be totally at variance with what the Constitution requires.
Congress can undoubtedly create crimes and define their elements,
but it cannot, under our Constitution, even partially remove
Page 396 U. S. 430
from the prosecution the burden of proving at trial each of the
elements it has defined. The fundamental right of the defendant to
be presumed innocent is swept away to precisely the extent judges
and juries rely upon the statutory presumptions of guilt found in
21 U.S.C. § 174 and 26 U.S.C. § 4704(a). And each of the weapons
given by the Bill of Rights to the criminal accused to defend his
innocence -- the right to counsel, the right to confront the
witnesses against him and to subpoena witnesses in his favor, the
privilege against self-incrimination -- is nullified to the extent
that the Government, to secure a conviction, does not have to
introduce any evidence to support essential allegations of the
indictment it has brought. It would be a senseless and stupid thing
for the Constitution to take all these precautions to protect the
accused from governmental abuses if the Government could, by some
sleight-of-hand trick with presumptions, make nullities of those
precautions. Such a result would completely frustrate the purpose
of the Founders to establish a system of criminal justice in which
the accused -- even the poorest and most humble -- would be able to
protect himself from wrongful charges by a big and powerful
government. It is little less than fantastic even to imagine that
those who wrote our Constitution and the Bill of Rights intended to
have a government that could create crimes of several separate and
independent parts and then relieve the government of proving a
portion of them. Of course, within certain broad limits, it is not
necessary for Congress to define a crime to include any particular
set of elements.
But if it does, constitutional due
process requires the Government to prove each element beyond a
reasonable doubt before it can convict the accused of the crime it
deliberately and clearly defined. Turner's trial therefore reminds
me more of Daniel being cast into the lion's den than it does of a
constitutional proceeding. The Bible
Page 396 U. S. 431
tells us Daniel was saved by a miracle, but when this Court says
its final word in this case today, we cannot expect a miracle to
save petitioner Turner.
I would have more hesitation in setting aside these jury
verdicts for insufficiency of the evidence were I confident that
the jury had been allowed to make a free and unhampered
determination of guilt or innocence as the jury trial provisions of
Article III of the Constitution and the Sixth Amendment require.
The right to trial by jury includes the right to have the jury and
the jury alone find the facts of the case, including the crucial
fact of guilt or innocence.
See, e.g., United States ex rel.
Toth v. Quarles, 350 U. S. 11,
350 U. S. 15-19
(1955). This right to have the jury determine guilt or innocence
necessarily includes the right to have that body decide whether the
evidence presented at trial is sufficient to convict. Turner's
convictions on each count were secured only after the jury had been
explicitly instructed by the trial judge that proof of Turner's
mere possession of heroin and cocaine "shall be deemed sufficient
evidence to authorize conviction" under 21 U.S.C. § 174, and "shall
be
prima facie evidence of a violation" of 26 U.S.C. §
4704(a). App. 15-18. In my view, these instructions to the jury
impermissibly interfered with the defendant's Sixth Amendment right
to have the jury determine when evidence is sufficient to justify a
finding of guilt beyond a reasonable doubt.
The instructions directing the jury to presume guilt in this
case were not, of course, the trial judge's own inspiration.
Congress, in enacting the statutory presumptions purporting to
define and limit the quantum of evidence necessary to convict, has
injected its own views and controls into the guilt-determining,
factfinding process vested by our Constitution exclusively in the
Judicial Branch of our Government. The Fifth Amendment's command
that cases be tried according to due
Page 396 U. S. 432
process of law includes the accused's right to have his case
tried by a judge and a jury in a court of law without legislative
constraint or interference. These statutory presumptions clearly
violate the command of that Amendment. Congress can declare a
crime, but it must leave the trial of that crime to the courts.
See Leary v. United States, 395 U. S.
6,
395 U. S. 55
(1969) (concurring in result), and
United States v.
Gainey, 380 U. S. 63,
380 U. S. 84-85
(1965) (dissenting opinion).
It is my belief that these statutory presumptions are totally
unconstitutional for yet another reason, and it is a critically
important one. As discussed earlier, the Constitution requires that
the defendant in a criminal case be presumed innocent, and it
places the burden of proving guilt squarely on the Government.
Statutory presumptions such as those involved in this case rob the
defendant of at least part of his presumed innocence and cast upon
him the burden of proving that he is not guilty. The presumption in
21 U.S.C. § 174 makes this shift in the burden of proof explicit.
It provides that possession of narcotic drugs shall be deemed
sufficient evidence to justify a conviction "unless the defendant
explains the possession to the satisfaction of the jury." However,
so far as robbing the defendant of his presumption of innocence is
concerned, it makes no difference whether the statute explicitly
says the defendant can rebut the presumption of guilt (as does the
provision of 21 U.S.C. § 174 just quoted), or whether the statute
simply uses the language of "
prima facie case" and leaves
implicit the possibility of the defendant's rebutting the
presumption (as does 26 U.S.C. § 4704(a)). Presumptions of both
forms tend to coerce and compel the defendant into taking the
witness stand in his own behalf, in clear violation of the
accused's Fifth Amendment privilege against self-incrimination.
This privilege has been consistently interpreted to establish
Page 396 U. S. 433
the defendant's absolute right not to testify at his own trial
unless he freely chooses to do so. As we observed in
Malloy v.
Hogan, 378 U. S. 1,
378 U. S. 8
(1964), the privilege is fulfilled only when the person is
guaranteed "the right . . . to remain silent unless he chooses to
speak in the unfettered exercise of his own will. . . ." The
defendant's right to a free and unfettered choice in whether or not
to testify is effectively destroyed by the coercive effect of the
statutory presumptions found in 21 U.S.C. § 174 and 26 U.S.C. §
4704(a).
See United States v. Gainey, 380 U. S.
63,
380 U. S. 71-74,
380 U. S. 87
(1965) (dissenting opinions). Moreover, when the defendant declines
to testify and the trial judge states to the jury, as he did in
this case, that evidence of possession of narcotics shall be deemed
sufficient to convict "unless the defendant explains the possession
to the satisfaction of the jury," such an instruction is nothing
less than judicial comment upon the defendant's failure to testify,
a practice that we held violative of the Self-Incrimination Clause
in
Griffin v. California, 380 U.
S. 609 (1965).
How does the Court respond to the grave constitutional problems
raised by these presumptions of guilt? It says only that these
presumptions are, in its view, "reasonable" or factually
supportable "beyond a reasonable doubt." In other words, the Court
has concluded that the presumptions are "fair," and apparently
thinks that is a sufficient answer. It matters not to today's
majority that the evidence that it cites to show the factual basis
of the presumptions was never introduced at petitioner's trial, and
that petitioner was never given an opportunity to confront before
the jury the many expert witnesses now arrayed against him in the
footnotes of the Court's opinion. Nor does it apparently matter to
the Court that the factfinding role it undertakes today is
constitutionally vested not in this Court, but in the jury. If
Congress wants to make simple possession of
Page 396 U. S. 434
narcotics an offense, I believe it has power to do so. But this
Court has no such constitutional power. Nor has Congress the power
to relieve the prosecution of the burden of proving all the facts
that it as a legislative body deems crucial to the offenses it
creates.
For the reasons stated here, I would without hesitation reverse
petitioner's convictions under Counts 1, 2, 3, and 4.