Copperthwaite v. United States, 5415.

• Decision Date: 04 February 1930
• Docket Number: No. 5415.,5415.
• Citation: 37 F.2d 846
• Parties: COPPERTHWAITE et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

37 F.2d 846 (1930)

COPPERTHWAITE et al. v. UNITED STATES.

No. 5415.

Circuit Court of Appeals, Sixth Circuit.

February 4, 1930.

Charles Fennell, of Lexington, Ky. (King Swope, of Lexington, Ky., on the brief), for appellants.

Sawyer A. Smith, of Covington, Ky., for the United States.

Before DENISON and HICKS, Circuit Judges, and HAHN, District Judge.

DENISON, Circuit Judge.

Appellants were convicted under both counts of an indictment, the first of which charged the purchase and sale of unstamped morphine in violation of the Harrison Anti-Narcotic Act (Sec. 692, Tit. 26, USCA), and the second of which charged, as of the same time and place, the buying and selling of the same amounts of morphine which they knew had been unlawfully imported into the United States, thus constituting an offense under the Narcotic Import Statute (Sec. 174, Tit. 21, USCA). They were sentenced to five years imprisonment under the first count and ten years under the second count — the two terms to be concurrent.

The first objection is that the two statutes are so far repugnant that the later one (Harrison Act, 1914) repeals the earlier (Import Act, 1909), or, at least, that prosecutions under both, if based upon the same act or conduct, are inconsistent and election should have been compelled. We cannot sustain this objection. Cases are common where a single act is a violation of two statutes. Here there is no repugnancy. The Import Act is a customs law, the Harrison Act is a revenue law. When a single act is a violation of two laws, it may be penalized in each; but this conclusion leads to an inquiry as to double punishment. The same act may not be twice punished by the same sovereignty, merely because it violates two laws. Identity, as to double punishment as well as to double jeopardy, is shown if the same evidence necessary to prove either offense will also necessarily establish the other and this relation is reciprocal (and perhaps even if not reciprocal); in other words, can either be shown without disclosing the other? Reynolds v. U. S. (C. C. A. 6) 280 F. 1, 2; Miller v. U. S. (C. C. A.) 300 F. 529, 534. When thus tested, there was here double punishment. The entire proof in this case consisted of evidence that the defendants agreed to furnish and sell morphine to a purchaser and thereafter did have it (unstamped) in their possession and deliver it to him. By virtue of the presumption declared in the Harrison Act, this possession tended to show the forbidden purchase; and the same possession also tended — by virtue of the presumption declared in the Import Act — to show unlawful importation and defendants' knowledge. In such case the government may punish for either offense, but we think the supporting evidence does not so materially vary as to justify two punishments, merely because two inferences are attached by different statutes to the same evidential basis.

However, this does not avail defendants if the conviction and sentence under count two are valid; hence, that must be examined. To what extent statutory presumption can be validly created has been the subject of much inquiry. The presumptions arising by these two statutes are so related and one so affected by rulings upon the other that both must be considered. They must be examined in the light of the restriction that they cannot be merely arbitrary, but the declared inference must have some rational basis; and of course they should be considered so as, if possible, to preserve their validity under this restriction.¹

Looking first at the Harrison Act: The declaration is that possession of the unstamped package shall be evidence of "violation of this section," that is to say, evidence of some act which has been prohibited by this section. By this section several things have been prohibited, and as to some of them it is difficult to see any rational basis for this declared inference; but one of the things prohibited is the purchase, and certainly possession supports a reasonable inference of previous purchase by the possessor. To this extent, therefore, this provision of the Harrison Act presents no question now troublesome. Casey v. U. S., 276 U. S. 413, 418, 48 S. Ct. 373, 72 L. Ed. 632. The Narcotic Importation Act first denounces knowingly importing into the United States, contrary to law, any narcotic drug, and punishes one who receives or buys or sells "any such narcotic drug after being imported or brought in, knowing the same to have been imported contrary to law," and then provides that the possession "of the narcotic drug" is sufficient evidence to authorize conviction, unless the possession is explained, etc. This means that the possession makes a prima facie showing of the three elements which, in a case like the present, are necessary to make out guilt: (a) That defendant had bought or received the drug; (b) that this particular drug, so possessed, had been unlawfully imported; and (c) that defendant knew it. At first thought, it might seem a reasonable construction of this statute that the statutory inference only took effect after the unlawful importation had been proved, and that the element which will be established by the inference is the element (c), defendant's knowledge. The clause refers to possession of "the narcotic drug," and the narcotic drug under consideration is that which has been unlawfully imported. Such construction would conform to some familiar canons, and would not challenge any constitutional principle. However, that construction cannot survive comparison with the Yee Hem Case, 268 U. S. 178, 45 S. Ct. 470, 69 L. Ed. 904. The statute there involved was this same section, but while it was confined to opium (Sec. 2, Act of February 9, 1909 35 Stat. 614), and before its expansion to "any narcotic drug"; the only distinction in this respect being that it referred to possession of "such opium" instead of "the narcotic," and so the thought that the...