John Marshall Harlan II

“ The upshot of Tot, Gainey, and Romano is, we think, that a criminal statutory presumption must be regarded as 'irrational' or 'arbitrary,' and hence unconstitutional, 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. ”

“ The Government contends that by giving testimony at trial which established all elements of the offense under the 'South-North' theory, and by failing to object to the jury instructions on the ground now advanced, petitioner foreclosed himself from raising the point thereafter. We cannot agree. Even assuming that petitioner's testimony did supply all the evidence required for a valid conviction under the 'South-North' theory, the jury nevertheless was told that it could alternatively convict with the aid of the presumption under the 'North-South' theory. ”

“ The first possibility is that a possessor may have known the proportion of imported to domestic marihuana and have deduced that his own marihuana was grown abroad. The legislative record is of no assistance in evaluating this possibility. Such indirect evidence as we have found points to the conclusion that while most marihuana users probably know that some marihuana comes from Mexico, it is also likely that the great majority either have no knowledge about the proportion which is imported or believe that the proportion is considerably lower than may actually be the case. ”

“ In Marchetti, we held that a plea of the Fifth Amendment privilege provided a complete defense to a prosecution for failure to register and pay the occupational tax on wagers, as required by 26 U.S.C. §§ 4411-4412. We noted that wagering was a crime in almost every State, and that 26 U.S.C. § 6107 required that lists of wagering taxpayers be furnished to state and local prosecutors on demand. We concluded that compliance with the statute would have subjected petitioner to a "real and appreciable" [6] risk of self-incrimination. ”

“ Consequently, we do not reach the question of the validity of the 'illegal importation' inference.
With regard to the 'knowledge' presumption, we believe that Tot and Romano require that we take the statute at face value and ask whether it permits conviction upon insufficient proof of 'knowledge,' rather than inquire whether Congress might have made possession itself a crime. [67] In order thus to determine the constitutionality of the 'knowledge' inference, one must have direct or circumstantial data regarding the beliefs of marihuana users generally about the source of the drug they consume. ”

“ So far as here relevant, the presumption, quoted supra, at 30, authorizes the jury to infer from a defendant's possession of marihuana two necessary elements of the crime: (1) that the marihuana was imported or brought into the United States illegally; and (2) that the defendant knew of the unlawful importation or bringing in. [65] Petitioner argues that neither inference is valid, citing undisputed testimony at his trial to the effect that marihuana will grow anywhere in the United States, and that some actually is grown here. ”

“ The Government asserts that these regulations clearly signify that no person will be permitted to register unless his activities are permissible under the law of his jurisdiction, and that no one will be permitted to obtain an order form and prepay the transfer tax unless he has registered. [20] The result, the Government contends, is simply to prohibit nonregistrants like petitioner from dealing in marihuana at all. ”

“ Nor are these deficiencies in the foundation for the 'knowledge' presumption overcome by paying, as we do, the utmost deference to the congressional determination that this presumption was warranted. For Congress, no less than we, is subject to constitutional requirements, and in this instance the legislative record falls even shorter of furnishing an adequate foundation for the 'knowledge' presumption than do the more extensive materials we have examined.
We thus cannot escape the duty of setting aside petitioner's conviction under Court 2 of this indictment. ”

“ In discussing the issue of constitutionality, the report recites that ' (t) he law is * * * settled that Congress has the power to enact a tax which is so heavy as to discourage the transactions or activities taxed' [35] and states that ' (t) hese cases sustain the $100 tax imposed * * * upon transfers * * * to unregistered persons.' [36] The Senate report, without discussing constitutionality, otherwise states the purpose of the transfer provisions in the very same words as the House report. ”

“ The Government does not contend that the claim of the privilege was untimely. Petitioner's trial occurred before our decisions in Marchetti, Grosso, and Haynes, and the Court of Appeals for the Fifth Circuit had recently rejected an identical self-incrimination claim. ”

“ Petitioner attempted to introduce further evidence concerning the proportion of domestically consumed marihuana which in fact has been grown in the United States, but the District Court held it irrelevant and therefore inadmissible. See 2 Transcript of Record 517.↑ See supra, at 34 and n. 63.↑ A statute based upon a legislative declaration of facts is subject to constitutional attack on the ground that the facts no longer exist; in ruling upon such a challenge a court must, of course, be free to re-examine the factual declaration. ”

“ Smokers appear usually to purchase marihuana by the 'bag'-about one-fifth ounce; by the 'can'-about one ounce; or by the pound. [110] Hence, after importation ' (t) he wholesalers will repackage the marihuana into smaller packages, * * * and they will do it in various ways.' [111] We infer that only a small percentage of smokers are likely to learn of the drug's origin from its packaging. ”

“ The Government, however, vigorously contends that when the Act is considered together with the accompanying regulations, and in light of existing administrative practice, its incriminatory aspect will be seen to vanish or shrink to less than constitutional proportions. ”

“ That section provides that the duplicate order forms required to be kept by the Internal Revenue Service shall be open to inspection by Treasury personnel and state and local officials charged with enforcement of marihuana laws, and that upon payment of a fee such officials shall be furnished copies of the forms. [11]
Finally, 26 U.S.C. § 4744 (a) makes it unlawful for a transferee required to pay the § 4741 (a) transfer tax either to acquire marihuana without having paid the tax or to transport, conceal, or facilitate the transportation or concealment of, any marihuana so acquired. ”

“ The Government points first to regulations, 26 CFR §§ 152.22, 152.23, added in 1964, which provide that every applicant for registration under §§ 4751-4753 must show that he is legally qualified to deal in marihuana according to the laws of the jurisdiction in which he is operating, and that the district director shall not permit an applicant to register until the director is satisfied that this is true. The Government then cites two other regulations, relating to applications for order forms under § 4742. ”

“ With respect to packaging, there is evidence that Mexican marihuana is commonly compressed into distinctive 'bricks' and then wrapped in characteristically Mexican paper. [107] Yet even if it is assumed that most Mexican marihuana bears such sistinguishing marks when first brought into this country, there is no indication that they normally are still present when it reaches the consumer. The packaging method just mentioned apparently is intended to facilitate transportation of relatively large quantities of mrihuana. ”

“ Current periodicals and books, on the other hand, indicate that marihuana smoking has become common on many college campuses and among persons who have voluntarily 'dropped out' of American society in protest against its values, and that marihuana smokers include a sizeable number of young professional persons. ”

“ The committee hearings which preceded passage of § 176a included testimony by many marihuana smokers, but none was ever asked whether he knew the origin of the marihuana he smoked. It should also be kept in mind that the great preponderance of marihuana smokers are 'occasional' rather than 'regular' users of the drug, [94] and that 'occasional' smokers appear to be arrested disproportionately often, due to their inexpertness in taking precautions. [95] 'Occasional' users are likely to be less informed and less particular about the drug they smoke ”

“ Turnipseed, 219 U.S. 35, 31 S.Ct. 136, 55 L.Ed. 78 (1910) .↑ See n. 56, supra.↑ See ibid.↑ For example, it was a argued in Tot that in order to regulate interstate commerce in firearms Congress might have prohibited possession of all firearms by persons who had been convicted of crimes of violence.↑ The Court declared that there was even less reason to conclude from possession that the acquisition had occurred subsequent to the effective date of the Firearms Act.↑ Like the Court in Tot, we limited ourselves in Romano to consideration of the crime Congress actually had defined. ”

“ It is extremely unlikely that such persons will remain unregistered, for failure to register renders them liable not only to an additional.$99 per ounce transfer tax but also to severe criminal penalties. ”

“ See also United States v. Romano, supra, 382 U.S. at 140-144, 86 S.Ct., at 281-284. Comment, The Constitutionality of Statutory Criminal Presumptions, 34 U.Chi.L.Rev. 141 (1966) .↑ The presumption also permits inference of a third element: that the importation or bringing in was with intent to defraud the United States. The permissibility of this inference was not one of the questions presented in Leary's petition for certiorari, and on the view we take of this branch of the case we have no occasion to consider it.↑ See 1 Transcript of Record 165, 186-187. ”

“ It should be remembered that there are estimated to be at least 3,500,000 'regular' or 'occasional' marihuana smokers in the United States. See n. 94, supra.↑ See authorities cited in n. 98, supra.↑ See supra, at 39 (testimony of Commissioner Anslinger) ; House Hearings 1071-1072, Senate Hearings 4354-4355 (statements of District Supervisor Aman) .↑ See Senate Hearings 3488-3489. See also House Hearings 288.↑ See authorities referred to in A. Hodapp, Marihuana: A Review of the Literature for Analytical Chemists 13 (1959) ; Bouquet, Cannabis, Parts I-II, 2 U.N. Bull. ”