Gerardi v. United States, 2155.

• Decision Date: 02 February 1928
• Docket Number: No. 2155.,2155.
• Citation: 24 F.2d 189
• Parties: GERARDI v. UNITED STATES.
• Court: U.S. Court of Appeals — First Circuit

24 F.2d 189 (1928)

GERARDI v. UNITED STATES.

No. 2155.

Circuit Court of Appeals, First Circuit.

February 2, 1928.

William H. Lewis, of Boston, Mass. (Matthew L. McGrath, of Boston, Mass., on the brief), for plaintiff in error.

John V. Spalding, Asst. U. S. Atty., of Boston, Mass. (Frederick H. Tarr, U. S. Atty., of Gloucester, Mass., on the brief), for the United States.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge.

The defendant was convicted in the District Court of Massachusetts upon an indictment which charged him in three counts with possession of morphine hydrochloride, an opium derivative, and in two counts with its sale. In all the counts it is alleged that he was required to register, but had not registered, with the collector of internal revenue, and had not paid the special tax required by law. He was found guilty upon all the counts, and sentenced upon each to serve a term of three years at hard labor in the United States penitentiary at Atlanta, the sentences to run concurrently.

One of the errors assigned, and the only one that we find it necessary to consider, is that the court denied the request of the defendant to instruct the jury to bring in a verdict of not guilty upon all the counts, because the government had not sustained the burden of proof.

The Harrison Anti-Narcotic Act under which he was convicted was approved December 17, 1914 (38 Stat. 785, c. 1), and amended February 24, 1919 (40 Stat. 1057, 1130, 1131). Section 1 of the act was amended by the Revenue Act of 1926 (44 Stat. c. 27, § 703 26 USCA §§ 211, 691-695, 704). The act is entitled "An act to provide for the registration of, with collectors of internal revenue, and to impose a special tax upon all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, or preparations, and for other purposes."

Its constitutionality has been sustained on the ground that it is a revenue act, enacted under the power conferred upon Congress to levy taxes, and that its purpose is not to prohibit the sale of the substances with which it deals. United States v. Doremus, 249 U. S. 86, 39 S. Ct. 214, 63 L. Ed. 493; Webb et al. v. United States, 249 U. S. 96, 39 S. Ct. 217, 63 L. Ed. 497; Alston v. United States, 274 U. S. 289, 47 S. Ct. 634, 71 L. Ed. 1052. In discussing the provisions of the act before it in the last-named case, the court said:

"These provisions are clearly within the power of Congress to lay taxes and have no necessary connection with any requirement of the act which may be subject to reasonable disputation. They do not absolutely prohibit buying or selling; have produced substantial revenue; contain nothing to indicate that by colorable use of taxation Congress is attempting to invade the reserved powers of the States. The impositions are not penalties."

Section 1 of the act as re-enacted is, in part, as follows:

"Section 1. That on or before July 1 of each year every person who imports manufactures, produces, compounds, sells, deals in, dispenses, or gives away opium or coca leaves, or any compound, manufacture, salt, derivative, or preparation thereof, shall register with the collector of internal revenue of the district his name or style, place of business and place or places where such business is to be carried on, and pay the special taxes hereinafter provided."

The section then classifies those who are to register and pay the tax, and fixes the amount to be paid by each class. It defines a wholesale dealer as one who sells any of said drugs in the original stamped packages, and a retail dealer as one who sells or dispenses from original stamped packages. It provides that an internal revenue tax at the rate of one cent per ounce, and the same rate on any fraction of an ounce, shall be paid by the importer, manufacturer, producer, or compounder of the narcotic drugs therein enumerated, said tax to be represented by appropriate stamps to be provided by the Commissioner of Internal Revenue and which shall be so affixed to the bottle or other container as to securely seal the stopper, covering, or wrapper. It also provides that: "It shall be unlawful for any person required to register under the provisions of the act to import, manufacture, produce, compound, sell, deal in, dispense, distribute, administer, or give away any of the aforesaid drugs without having registered and paid the special tax as imposed by this section." It further provides that: "It shall be unlawful for any person to purchase, sell, dispense, or distribute any of the aforesaid drugs except in 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...