1. Where evidence in a criminal trial tends to prove
inferentially that the offence was within the venue, and
supplementary evidence on that point might be produced if attention
were called to it, objection that the venue has not been
established should be made specifically, and not rested upon a
general request to direct a verdict for want of sufficient
evidence. P.
276 U. S.
417.
2. Section 1 of the Anti-Narcotic Act, in providing that absence
of the required stamps from any of the drugs shall be
prima
facie evidence of a violation of the section by the person in
whose possession such drugs are found, is merely a regulation of
the burden of proof. P.
276 U. S.
418.
3. This provision is constitutional as applied to a person
charged with unlawful purchase of morphine who possessed the drug
under circumstances warranting suspicion. P.
276 U. S.
418.
4. Upon the evidence in this case, the court, acting on its own
motion, would not be justified in deciding that the government
induced the crime. P.
276 U. S.
418.
5. The amended Anti-Narcotic Act, as applied to this case, is
within the power of Congress. P.
276 U. S.
420.
20 F.2d 752 affirmed in part.
Certiorari, 275 U.S. 517, to a judgment of the circuit court of
appeals affirming a conviction under the Anti-Narcotic Act. The
affirmance here is on the first count of the indictment, charging
unlawful purchase. The second count, charging sales, was also
upheld below, but in this Court was conceded to be bad by the
government.
Page 276 U. S. 416
MR. JUSTICE HOLMES delivered the opinion of the Court.
The petitioner, Casey, was convicted upon two counts of an
indictment, the first of which charged him with the purchase of
three and four-tenths grains of morphine not in or from the
original stamped package at Seattle, within the jurisdiction of the
Court. The conviction was sustained by the circuit court of
appeals. 20 F.2d 752. A writ of certiorari was granted by this
Court.
Here, the second count was admitted by the government to be bad,
so that the only matter to be considered is whether the conviction
can be sustained upon the first. It is argued that the evidence is
not enough. Casey had practiced law in Seattle for many years, had
been in the habit of visiting King County jail, and had defended
prisoners addicted to the use of narcotics. There was evidence
tending to show that, on different occasions, he had promised to
furnish them with opiates, and that, in pursuance
Page 276 U. S. 417
of such promises and for pay received by him, he had given or
sent to them preparations of morphine, concealed, it was said, by
soaking towels or the like in a solution of the drug. If this
evidence was believed, it showed that Casey was in possession or
control of what he sent, and it safely may be inferred that he did
not proclaim his illegal purpose by putting stamps upon the towels.
But the charge is a purchase, not a sale. There was no testimony
directly concerning the purchase, and the government relies, in
part, at least, upon the presumption of a violation of § 1 of the
Act of December 17, 1914, c. 1, as amended by the Act of February
24, 1919, c. 18, § 1006; 40 Stat. 1057, 1130, 1131, that that
section purports to create. U.S.C. Title 26, § 692.
The amended section makes the purchase, sale, etc., of opium and
derivatives unlawful except in or from the original stamped
package, and the absence of the required stamps from any of the
said drugs "shall be
prima facie evidence of a violation
of this section by the person in whose possession same may be
found." For the petitioner, it was argued that the presumption thus
created does not, and, consistently, with the Sixth Amendment to
the Constitution, cannot extend so far as to show a purchase within
the district, and thus to bring the case within the jurisdiction of
the trial court. The circuit court of appeals answered that the
objection to the venue was not raised specifically below. The court
was asked to direct a verdict for the defendant on the ground that
the evidence was not sufficient, and elsewhere it has been held
that such a request is enough to save the question, and that a
presumption extended to the place of purchase could not be upheld.
Brightman v. United States, 7 F.2d 532;
Cain v. United
States, 12 F.2d 580;
Hood v. United States, 14 F.2d
925;
De Moss v. United States, 14 F.2d 1021. But we are of
opinion that, upon
Page 276 U. S. 418
the facts of this case, the court was right. If the jury
believed that the defendant, long established in Seattle, said that
he has not the drug, but would, and shortly thereafter did, furnish
it, the inference that he bought it in Seattle is strong, and it is
reasonable to suppose that, if attention had been called to the
point, the inference could have been made stronger still. But the
effort of the defense did not stop at this detail, but was to show
that Casey had nothing to do with the business, and was wholly
innocent of the offense charged.
With regard to the presumption of the purchase of a thing
manifestly not produced by the possessor, there is a "rational
connection between the fact proved and the ultimate fact presumed."
Luria v. United States, 231 U. S. 9,
231 U. S. 25;
Yee Hem v. United States, 268 U.
S. 178,
268 U. S. 183.
Furthermore, there are presumptions that are not evidence in a
proper sense, but simply regulations of the burden of proof.
Greer v. United States, 245 U. S. 559. The
statute here talks of
prima facie evidence, but it means
only that the burden shall be upon the party found in possession to
explain and justify it when accused of the crime that the statute
creates. 4 Wigmore, Evidence, § 2494. It is consistent with all the
constitutional protections of accused men to throw on them the
burden of proving facts peculiarly within their knowledge and
hidden from discovery by the government. 4 Wigmore, Evidence, §
2486. In dealing with a poison not commonly used except upon a
doctor's prescription easily proved, or for a debauch only possible
by a breach of law, it seems reasonable to call on a person
possessing it in a form that warrants suspicion to show that he
obtained it in a mode permitted by the law. The petitioner cannot
complain of the statute except as it affects him.
We do not feel at liberty to accept the suggestion that the
government induced the crime. A court rarely can
Page 276 U. S. 419
act with advantage of its own motion, and very rarely can be
justified in giving judgment upon grounds that the record was not
intended to present. Upon this record, it was testified, and might
have been found for the government, that, after Casey's visits,
addicts were noticed by the jailers to be under the influence of
narcotics, and that, on a previous occasion, Casey, for money, had
got morphine at the request of Cicero, the supposed stool pigeon.
It does not appear expressly that this last was told to the jailer
before the supposed plot to entrap Casey, but, in view of the
relation between the parties, it was very likely, and, had the
matter been in issue, very probably would have been proved. We do
not think that we are entitled to assume the contrary. If known to
the jailers, there was very probable cause to believe Casey an
habitual practitioner. His own language when he was on guard,
admitting that he frequently had promised the drug to prisoners,
the testimony as to what was said in his presence (to the effect
that he was the man who supplied the boys with narcotics when they
wanted it) and his language importing habit (as that he hadn't a
thing with him today) all tend to the same conclusion. We hardly
can assume that the jailers did not know the facts in order to
convict them of a gross wrong when we keep in mind that the case
was tried and the record made up without this in mind. Furthermore
Casey, according to the story, was in no way induced to commit the
crime beyond the simple request of Cicero, to which he seems to
have acceded without hesitation and as a matter of course.
According to the evidence, he seems to have promised morphine to
Nelson, who does not appear to have been in the supposed plot. We
are not persuaded that the conduct of the officials was different
from or worse than ordering a drink of a suspected bootlegger.
Whatever doubts we may feel as to the truth of the testimony, we
are not at liberty to consider them on the only question
Page 276 U. S. 420
before the Court. The grounds for uneasiness can be considered
only by another power.
The statute is much more obviously a revenue measure now than
when
United States v. Doremus, 249 U. S.
86, was decided, and is said to produce a considerable
return.
Alston v. United States, 274 U.
S. 289,
274 U. S. 294.
It is too late to attempt to overthrow the whole act on
Child
Labor Tax Case, 259 U. S. 20. It is
said also that no opium is produced in the United States, and at
all events the statute has been so modified that now, at least,
United States v. Jin Fuey Moy, 241 U.
S. 394, does not apply to this case.
United States
v. Wong Sing, 260 U. S. 18,
260 U. S. 21. We
pass, as not needing discussion, some minor points.
Judgment upon the first count affirmed.
MR. JUSTICE McREYNOLDS, dissenting.
I accept the views stated by MR. JUSTICE BUTLER. With clarity,
he points out the unreasonableness of the construction of the
statute advocated by counsel for the United States. But I go
further.
The provision under which we are told that one may be presumed
unlawfully to have purchased an unstamped package of morphine
within the district where he is found in possession of it conflicts
with those constitutional guaranties heretofore supposed to protect
all against arbitrary conviction and punishment. The suggested
rational connection between the fact proved and the ultimate fact
presumed is imaginary.
Once, the thumbscrew and the following confession made
conviction easy; but that method was crude, and, I suppose, now
would be declared unlawful upon some ground. Hereafter, presumption
is to lighten the burden of the prosecutor. The victim will be
spared the trouble of confessing, and will go to his cell without
mutilation or disquieting outcry.
Page 276 U. S. 421
Probably most of those accelerated to prison under the present
Act will be unfortunate addicts and their abettors; but even they
live under the Constitution. And where will the next step take
us?
When the Harrison Anti-Narcotic Law became effective, probably
some drug containing opium could have been found in a million or
more households within the Union. Paregoric, laudanum, Dover's
Powders, were common remedies. Did every man and woman who
possessed one of these instantly become a presumptive criminal, and
liable to imprisonment unless he could explain to the satisfaction
of a jury when and where he got the stuff? Certainly I cannot
assent to any such notion, and it seems worthwhile to say so.
MR. JUSTICE BUTLER concurs in these views.
MR. JUSTICE BRANDEIS, dissenting.
The question presented is whether possession within the district
of morphine not in the original stamped package is evidence
sufficient to sustain the charge that it was illegally purchased
therein. I have no occasion to consider that question. For, in my
opinion, the prosecution must fail because officers of the
government instigated the commission of the alleged crime.
These are facts disclosed by the government's evidence: in the
Western District of Washington, Northern Division, prisoners
awaiting trial for federal offenses are commonly detained at King
County Jail. The prisoners' lawyers frequently come there for
consultation with clients. At the request of prisoners, the jailer
telephones the lawyers to come for that purpose. A small
compartment -- called the attorneys' cage -- is provided. Prior to
the events here in question, the jailer had, upon such request,
telephoned Casey, from time to time, to come to see prisoners
accused of crimes other than violation of the
Page 276 U. S. 422
Narcotic Act. He had doubtless telephoned also upon request of
prisoners who were accused of these crimes, for Casey had acted as
attorney in a number of narcotic cases. The jailer observed -- or
thought he did -- that, after Casey came, some of those visited
were under the influence of narcotics. He suspected that Casey had
brought them the drug. To entrap him, the following scheme was
devised by Patterson and Close, federal narcotic officers, and
carried out with the aid of George Cicero, a convicted felon and
drug addict, then in the jail on a charge of forgery, and Mrs.
Nelson, the alleged sister-in-law of Roy Nelson, another prisoner
and drug addict.
On December 29th, Patterson and Close installed a dictaphone in
the attorneys' cage and arranged so that, from an adjacent room,
they could both hear conversations in the cage and see occupants.
Then they deposited with the superintendent of the jail $20 to
Cicero's credit, arranged with him to request the jailer to summon
Casey to come to the jail, and also that, when Casey came, Cicero
would ask him to procure some morphine and would pay him the $20
for that purpose. The jailer telephoned Casey as requested.
Thereafter, the federal agents were in waiting. Casey did not come
until about 10 o'clock on the morning of the 31st. Cicero talked
from the attorney's cage with Casey, and gave him an order for the
$20. By arrangement, Casey talked there also with Roy Nelson, who
gave him an order on the superintendent for $50. Both orders were
immediately cashed. Mrs. Nelson talked with Casey in the
corridor.
The testimony of Patterson, Close, Cicerco, and Mrs. Nelson, if
believed, is sufficient to prove that Cicero and Roy Nelson asked
Casey to procure morphine for them, that he agreed to do so, that
the money paid was for that purpose, that it was arranged that the
morphine should be smuggled into the jail in laundry, and that
Page 276 U. S. 423
Mrs. Nelson arranged with Casey that she would call at his
office in the afternoon. She did call, having first gone to the
office of the narcotic agents and conferred with them. She
testified that she saw at Casey's office a Chinaman or a Japanese,
that Casey gave her the package for Roy Nelson, and that she took
it immediately to the federal narcotic office. A federal narcotic
agent who is a chemist testified that, upon soaking one of the
towels in the package brought to the office by Mrs. Nelson, he
found that it contained morphine.
I am aware that courts, mistaking relative social values and
forgetting that a desirable end cannot justify foul means, have, in
their zeal to punish, sanctioned the use of evidence obtained
through criminal violation of property and personal rights or by
other practices of detectives even more revolting. But the
objection here is of a different nature. It does not rest merely
upon the character of the evidence or upon the fact that the
evidence was illegally obtained. The obstacle to the prosecution
lies in the fact that the alleged crime was instigated by officers
of the government, that the act for which the government seeks to
punish the defendant is the fruit of their criminal conspiracy to
induce its commission. The government may set decoys to entrap
criminals. But it may not provoke or create a crime and then punish
the criminal, its creature. If Casey is guilty of the crime of
purchasing 3.4 grains of morphine, on December 31st, as charged, it
is because he yielded to the temptation presented by the officers.
Their conduct is not a defense to him. For no officer of the
government has power to authorize the violation of an act of
Congress, and no conduct of an officer can excuse the violation.
But it does not follow that the court must suffer a detective-made
criminal to be punished. To permit that would be tantamount to a
ratification by the government of the
Page 276 U. S. 424
officers' unauthorized and unjustifiable conduct.
* Compare
Gambino v. United States, 275 U. S. 310.
This case is unlike those where a defendant confessedly intended
to commit a crime and the government, having knowledge thereof,
merely presented the opportunity and set its decoy. So far as
appears, the officers had, prior to the events on December 31st, no
basis for a belief that Casey was violating the law except that the
jailer harbored a suspicion. Casey took the witness stand and
submitted himself to cross-examination. He testified that he had
"never bought, sold, given away or possessed a single grain of
morphine or other opiate," and that he had "never procured, or
suggested to any one else to procure morphine or narcotics of any
kind." He testified that the payments made on orders from Cicero
and Roy Nelson were payments on account of services to be rendered
as counsel for the defense in the prosecutions against them then
pending. He denied every material fact testified to by witnesses
for the prosecution and supported his oath by other evidence. The
government's witnesses admitted that the conversations in the
attorneys' cage were carried on in the ordinary tone of voice, that
there was no effort to lower the voice or to speak privately or
secretly, and that they could have heard all that was said without
the use of the dictaphone. They admitted that, when the narcotic
agents searched Casey's office under a search
Page 276 U. S. 425
warrant on the evening of December 31st, they did not find any
narcotics or any trace of them or any other incriminating article,
and that when, at about the same time, they arrested Casey, he was
taking supper with his wife and daughter at his home seven miles
from Seattle. Whether the charge against Casey is true we may not
inquire. But if, under such circumstances, the mere suspicion of
the jailer could justify entrapment, little would be left of the
doctrine.
The fact that no objection on the ground of entrapment was taken
by the defendant, either below or in this Court, is without legal
significance. This prosecution should be stopped not because some
right of Casey's has been denied, but in order to protect the
government. To protect it from illegal conduct of its officers. To
preserve the purity of its courts. In my opinion, the judgment
should be vacated with direction to quash the indictment.
Compare United States v. Healy, 202 F. 349, 350;
United States v. Echols, 253 F. 862.
MR. JUSTICE BUTLER concurs in this opinion.
*
United States v. Adams, 59 F. 674;
Woo Wai v.
United States, 223 F. 412;
Sam Yick v. United States,
240 F. 60, 65;
Voves v. United States, 249 F. 191;
Peterson v. United States, 255 F. 433;
United States
v. Lynch, 256 F. 983;
Butts v. United States, 273 F.
35;
United States v. Certain Quantities, etc., 290 F. 824;
Newman v. United States, 299 F. 128;
Capuano v. United
States, 9 F.2d 41;
Silk v. United States, 16 F.2d
568;
Jarl v. United States, 19 F.2d 891;
Cline v.
United States, 20 F.2d 494.
See also Di Salvo v. United
States, 2 F.2d 222;
United States v.
Washington, 20 F.2d
160, 162.
Compare Blaikie v. Linton, 18 Scot. L.R.
583.
MR. JUSTICE BUTLER, dissenting.
The first count charges an unlawful purchase of 3.4 grains of
morphine. The second charges unlawful sales. Defendant was
convicted on both, and sentenced to the penitentiary for fourteen
months on each, the terms to run concurrently. The circuit court of
appeals affirmed the judgment on both counts. Here, the government
rightly says that the conviction on the second count should not be
sustained. This Court accepts that view, and as to that count,
petitioner is entitled to have the judgment reversed.
The indictment is under § 1 of the Harrison Narcotic Act of
December 17, 1914, c. 1, 38 Stat. 785, as amended
Page 276 U. S. 426
February 24, 1919, c. 18, 40 Stat. 1057, 1130. It was enacted
under Article I, § 8, of the Constitution, granting to Congress
power to lay and collect taxes. The words of the section under
which the first count was found are:
"It shall be unlawful for any person to purchase, sell,
dispense, or distribute any of the aforesaid drugs except
Page 276 U. S. 427
in . . . or from the original stamped package or from the
original stamped package, and the absence of appropriate tax-paid
stamps from any of the aforesaid drugs shall be
prima
facie evidence of a violation of this section by the person in
whose possession same may be found, and the possession of any
original stamped package containing any of the aforesaid drugs by
any person who has not registered and paid special taxes as
required by this section shall be
prima facie evidence of
liability to such special tax."
This section defines many offenses. They include purchasing,
selling, dispensing, distributing, importing, manufacturing,
producing, compounding, dealing in, administering, and giving away
of each of the numerous drugs mentioned in the section. The things
forbidden are not alike. Some are essentially different from and
inconsistent with the others. It cannot reasonably be said that
mere possession of 3.4 grains of morphine without a stamp thereon
was sufficient to establish
prima facie that defendant was
guilty of all these crimes, or all that related to morphine, or
even to those respectively involving manufacture, sale, and
purchase of the 3.4 grains. There is no more reason to select one
of these than there is to choose another for the application of the
statutory rule of evidence.
The "absence of appropriate tax paid stamps" cannot be said to
make out dissimilar and inconsistent offenses. Tax-paid stamps are
significant to show payment of taxes, and their absence under some
circumstances properly may be evidence of nonpayment. According to
its words, the clause in question merely makes such absence
"
prima facie evidence of a violation of this section," the
clause following makes possession of an original stamped package
containing the drug by one not registered evidence of liability for
a tax. Fairly considered, both clauses have to do with tax
liability, the first to the tax on the drug and the second to the
tax imposed on importers, dealers,
Page 276 U. S. 428
physicians, etc. That construction would be reasonable, and
would not stretch the law against those accused of the crimes
created by the section.
And it is always to be remembered that this Act is to be
construed as a measure to "lay and collect taxes." It has no other
legal existence. The tax is one cent on each ounce or fractional
part thereof. Defendant had 3.4 grains without a stamp on it. He is
not accused of failure to pay a tax. The unlawful purchase charged
is punishable by a fine of not more than $2,000 or by imprisonment
of not more than five years, or by both. U.S.C. Tit. 26, § 705. The
only legal justification for such penalties is that they are
calculated to aid collection of taxes. It is hard to continue to
say that this Act is a taxing measure in order to sustain it.
Eagerness to use federal law as a police measure to combat the
opium habit -- a purpose for which Congress has no power to
legislate -- should not lead to the enactment or the construction
of laws that shock common sense.
And, above all, the statutory rule of evidence should be
construed having regard to the ancient and salutary doctrine known
and rightly cherished as fair play by the people, the bar, and the
courts of this country, that every person on trial for crime is
presumed to be innocent, and that, in order to convict him, the
evidence must satisfy the jury beyond reasonable doubt that he is
guilty of the crime charged.
See Coffin v. United States,
156 U. S. 432,
156 U. S. 453;
Cochran and Sayre v. United States, 157 U.
S. 286,
157 U. S. 298;
Davis v. United States, 160 U. S. 469. The
connection, if any, between the possession shown and the substance
of the offense charged is too remote. Attention has not been called
to any decision that goes so far. None can be found.
Page 276 U. S. 429
There is no evidence in the record that reasonably tends to show
that defendant purchased the 3.4 grains of morphine or that, when
purchased, it was not in or taken from the original stamped
package.
I am of opinion that the judgment should be reversed.
MR. JUSTICE SANFORD, dissenting.
I think that the case is not made out by the statutory provision
as to
prima facie evidence, and that the judgment should
be reversed.