Minor v. United States Buie v. United States

• Citation: 90 S.Ct. 284,24 L.Ed.2d 283,396 U.S. 87
• Decision Date: 08 December 1969
• Docket Number: Nos. 189 and 271,s. 189 and 271
• Parties: James MINOR, Petitioner, v. UNITED STATES. Michael BUIE, Petitioner, v. UNITED STATES
• Court: United States Supreme Court

396 U.S. 87

90 S.Ct. 284

24 L.Ed.2d 283

James MINOR, Petitioner,

v UNITED STATES.

Michael BUIE, Petitioner,

v. UNITED STATES.

Nos. 189 and 271.

Argued Oct. 15, 1969.

Decided Dec. 8, 1969.

[Syllabus from pages 87-88 intentionally omitted] Phylis Skloot Bamberger, New York City, for petitioner, James minor.

Peter L. Strauss, Washington, D.C., for respondent, the United States in No. 189.

David A. Diamond, New York City, for petitioner, Michael Buie.

Joseph J. Connolly, Washington, D.C., for respondent, the United States in No. 271.

Mr. Justice WHITE delivered the opinion of the Court.

These cases raise related questions about the availability of the Fifth Amendment as a defense to convictions for selling narcotic drugs and marihuana without the written order forms required by law.

James Minor, petitioner in No. 189, sold heroin on two separate occasions in 1967 to an undercover narcotics agent. Having waived trial by jury, petitioner was convicted in the United States District Court for the Southern District of New York of selling narcotics not pursuant to a written order on an official form—a violation of § 2 of the Harrison Narcotics Act, now 26 U.S.C. § 4705(a).¹

Michael Buie, petitioner in No. 271, sold five packages of marihuana in May 1967 to an undercover narcotics agent. The agent did not have the official order form required for such transactions by § 6 of the Marihuana Tax Act, now 26 U.S.C. § 4742(a).² A jury in the United States District Court for the Southern District of New York convicted petitioner of violating § 4742(a).

In separate opinions, the Court of Appeals for the Second Circuit affirmed both convictions over objections in each case that the statutory obligation to sell only in pursuance of an official order form violated petitioner's Fifth Amendment privilege against self-incrimination. United States v. Minor, 398 F.2d 511 (1968); United States v. Buie, 407 F.2d 905 (1969). We granted certiorari, 395 U.S. 932 and 976, 89 S.Ct. 2000 and 2150, 23 L.Ed.2d 447 and 765, to consider petitioners' Fifth Amendment claims, particularly in light of our intervening decision in Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). For the reasons that follow, we affirm the judgments in both cases.

We deal first with No. 271. Under pertinent provisions of the Marihuana Tax Act, 26 U.S.C. §§ 4751—4753, every person who sells, deals in, dispenses, or gives away marihuana must register with the Internal Revenue Service and pay a special occupational tax. The Act also imposes a tax on transfers of marihuana, to be paid by the transferee; the rate for those who have registered and paid the occupational tax is $1 per ounce; for those who have not or who cannot register the rate is $100 per ounce. Under § 4742(a) it is illegal to transfer marihuana except pursuant to a written order of the transferee on a form obtained by the latter at the time he pays the transfer tax. The order form when issued must carry the name and address of both buyer and seller and the amount of marihuana to be purchased. 26 U.S.C. § 4742(c). Other provisions of § 4742 require the form to be issued in triplicate, one copy to be retained by the Internal Revenue Service, the other copy to be kept in the buyer's files, and the original to be delivered to the seller and retained by him. 26 U.S.C. § 4742(d). Both original and copies are open to inspection by federal and state law enforcement officers. 26 U.S.C. §§ 4742(d), 4773.

Buie argues that because the buyer's order must be on the form issued by the Secretary of the Treasury and because § 4742(c) requires the seller's name and address to be on the form before its issuance to the buyer, the seller is forced to incriminate himself: he is forced to insist on an order form linking him to an illicit transaction and in many instances must furnish one of those links himself by giving his name to the buyer so that the latter will have the data necessary to secure the form. Moreover, it is said that the very act of selling pursuant to the order form forces the seller to admit that he is the person named in the document and to acknowledge the sale of specified amounts of marihuana on a specified date; the sale also leads to the further requirement that both seller and buyer retain a copy of the form open to inspection by law enforcement officials.

We have considerable doubt that any of these arguments would withstand close scrutiny,³ but we find it unnecessary to appraise them in detail because we have concluded that there is no real and substantial possibility that Buie's purchaser, or purchasers generally, would be willing to comply with the order form requirement even if their seller insisted on selling only pursuant to the form prescribed by law.

The situation of the buyer is this: if he applies for the order form he must announce his intention to purchase marihuana—a transaction that, if he is unregistered, will involve a tax of $100 for each ounce of marihuana involved in the impending sale and that is illegal under both federal and state law. We have great difficulty in believing, and nothing in this record convinces us, that one who wishes to purchase marihuana will comply with a seller's request that he incriminate himself with federal and local authorities and pay $100 per ounce in taxes in order to secure the order form. The possibility is particularly unlikely in view of the fact that the Fifth Amendment relieves unregistered buyers of any duty to pay the transfer tax and secure the incriminating order form. Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). Except that they are sources of marihuana, sellers have no magic power over buyers; and the characteristics of marihuana do not suggest that buyers would be driven by such urgent need that to get the drug they would incriminate themselves at the seller's behest and pay the prohibitive tax imposed on the transfer. As insistent as sellers might be, it is extremely unlikely that buyers would comply.

Buie's situation thus bears little resemblance to the situation that confronted Leary. The vice of the statute in that case—as in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906, and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968)—stemmed from the dilemma that confronted the buyer. The statute purported to make all purchases of marihuana legal from the buyer's viewpoint at his option; all he had to do to avoid the federal penalty was to secure the form and pay the tax. But to exercise that option and avoid the federal penalty, he was forced to incriminate himself under other laws. In the present case, the first horn of this dilemma does not confront the seller. In the face of a buyer's refusal to secure the order form, the option of making a legal sale under federal law is foreclosed by the buyer's decision, and 'full and literal compliance' with the law by the seller means simply that he cannot sell at all.⁴ There is no real and substantial possibility that he § 4742(a) order form requirement will in any way incriminate sellers for the simple reason that sellers will seldom, if ever, be confronted with an unregistered purchaser who is willing and able to secure the order form.

This conclusion is not affected by the fact that there is a tiny number of registered marihuana dealers—some 83 in the entire country according to government figures for 1967.⁵ In order to register, dealers must show that they are in compliance with local laws⁶ and, when registered, can get order forms by paying a transfer tax of only $1 per ounce. A registered dealer is thus not subject to the deterrent pressures operating on the unregistered dealer. But the possibility that a registered dealer would present an order form to an unregistered seller like Buie is itself a hypothesis more imaginary than real; any buyer who can purchase marihuana from a legitimate source is hardly likely to find it to his advantage to secure the drug instead on the illegal market. In any event, it is quite clear in this case that Buie's customer was not a registered dealer. Nor is there anything to suggest that he would have been willing or able to get an order form had he been asked.

No 189. The same result must follow in Minor's case and for similar reasons. The Harrison Narcotics Act, 26 U.S.C. § 4701 et seq., applies to various drugs, including heroin. Dealers must register and pay an occupational tax, 26 U.S.C. §§ 4721—4722; producers or importers who sell must purchase stamps and affix them to the package, 26 U.S.C. §§ 4701, 4703, 4771(a)(1); and it is illegal to purchase or sell except from the original stamped package, 26 U.S.C. § 4704(a). As in the case of the Marihuana Tax Act, all transfers, with exceptions not relevant here, must be made pursuant to a written order form issued by the Government. 26 U.S.C. § 4705(a). Only dealers who are in compliance with state law may register, and only registered dealers may secure order forms. 26 U.S.C. §§ 4705(f), (g); see 26 U.S.C. § 4721; 26 CFR § 151.24. Order forms are issued in triplicate to proper applicants and are stamped only with the name of the prospective purchaser. 26 U.S.C. § 4705(f); 26 CFR § 151.161. When a purchaser decides to execute a form, he fills in the exact date of the order and the number and type of drugs requested and signs his name to the form. 26 CFR §§ 151.163—151.165, 151.167. The purchaser retains the duplicate and delivers the original and the triplicate thus executed to the seller, who enters the number and size of the stamped packages furnished and the date when each item is filled. 26 CFR §§ 151.161(a), 151.185. A regulation, 26 CFR § 151.201, requires the seller to forward the triplicate to the Internal Revenue Service at the end of the month. Section 4705(d) of the Act requires both seller and buyer to keep their...