Leary v. United States, 65

Decision Date19 May 1969
Docket NumberNo. 65,65
PartiesTimothy F. LEARY, Petitioner, v. UNITED STATES
CourtU.S. Supreme Court

[Syllabus from pages 6-9 intentionally omitted]

Robert J. Haft, New York City, for petitioner.

John S. Martin, Jr., Washington, D.C., for respondent.

Mr. Justice HARLAN delivered the opinion of the Court.

This case presents constitutional questions arising out of the conviction of the petitioner, Dr. Timothy Leary, for violation of two federal statutes governing traffic in marihuana.

The circumstances surrounding petitioner's conviction were as follows. On December 20, 1965, petitioner left New York by automobile, intending a vacation trip to Yucatan, Mexico. He was accompanied by his daughter and son, both teenagers, and two other persons. On December 22, 1965, the party drove across the International Bridge between the United States and Mexico at Laredo, Texas. They stopped at the Mexican customs station and, after apparently being denied entry, drove back across the bridge. They halted at the American secondary inspection area, explained the situation to a customs inspector, and stated that they had nothing from Mexico to declare. The inspector asked them to alight, examined the interior of the car, and saw what appeared to be marihuana seeds on the floor. The inspector then received permission to search the car and passengers. Small amounts of marihuana were found on the car floor and in the glove compartment. A personal search of petitioner's daughter revealed a silver snuff box containing semirefined marihuana and three partially smoked marihuana cigarettes.

Petitioner was indicted and tried before a jury in the Federal District for the Southern District of Texas, on three counts. First, it was alleged that he had knowingly smuggled marihuana into the United States, in violation of 21 U.S.C. § 176a.1 Second, it was charged that he had knowingly transported and facilitated the transportation and concealment of marihuana which had been illegally imported or brought into the United States, with knowledge that it had been illegally imported or brought in, all again in violation of § 176a. 2 Third, it was alleged that petitioner was a transferee of marihuana and had knowingly transported, concealed, and facilitated the transportation and concealment of marihuana without having paid the transfer tax imposed by the Marihuana Tax Act, 26 U.S.C. § 4741 et seq., thereby violating 26 U.S.C. § 4744(a)(2).3

After both sides had presented their evidence and the defense had moved for a judgment of acquittal, the District Court dismissed the first or smuggling count.4 The jury found petitioner guilty on the other two counts. He was tentatively sentenced to the maximum punishment, pending completion of a study and recommendations to be used by the District Court in fixing his final sentence.5 On appeal, the Court of Appeals for the Fifth Circuit affirmed. 383 F.2d 851 (1967). That court subsequently denied a petition for rehearing and rehearing en banc. 392 F.2d 220 (1968).

We granted certiorari, 392 U.S. 903, 88 S.Ct. 2058, 20 L.Ed.2d 1362 (1968), to consider two questions: (1) whether petitioner's conviction for failing to comply with the transfer tax provisions of the Marihuana Tax Act violated his Fifth Amendment privilege against self-incrimination; (2) whether petitioner was denied due process by the application of the part of 21 U.S.C. § 176a which provides that a defendant's possession of marihuana shall be deemed sufficient evidence that the marihuana was illegally imported or brought into the United States, and that the defendant knew of the illegal importation or bringing in, unless the defendant explains his possession to the satisfaction of the jury. For reasons which follow, we hold in favor of the petitioner on bt h issues and reverse the judgment of the Court of Appeals.


We consider first petitioner's claim that his conviction under the Marihuana Tax Act violated his privilege against self-incrimination.


Petitioner argues that reversal of his Marihuana Tax Act conviction is required by our decisions of last Term in Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d. 889 (1969); Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906 (1968), and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968). 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 re- quired 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. We further recognized that the occupational tax was not imposed in "an essentially non-criminal and regulatory area * * *," 390 U.S., at 57, 88 S.Ct., at 707,7 but was 'directed to a 'selective group inherently suspect of criminal activities." 8 We found that it would be inappropriate to impose restrictions on use of the information collected under the statute—a course urged by the Government as a means of removing the impact of the statute upon the privilege against self-incrimination—because of the evident congressional purpose to provide aid to prosecutors. We noted that, unlike the petitioner in Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787 (1948), Marchetti was not required to supply information which had a 'public aspect' or was contained in records of the kind he customarily kept.

In Grosso, we held that the same considerations required that a claim of the privilege be a defense to prosecution under 26 U.S.C. § 4401, which imposes an excise tax on proceeds from wagering. And in Haynes we held for the same reasons that assertion of the Fifth Amendment privilege provided a defense to prosecution for possession of an unregistered weapon under the National Firearms Act, 26 U.S.C. § 5851, despite the fact that in 'uncommon' instances registration under the statute would not be incriminating. See 390 U.S., at 96—97, 99, 88 S.Ct. at 730—731.


In order to understand petitioner's contention that compliance with the Marihuana Tax Act would have obliged him to incriminate himself within the meaning of the foregoing decisions, it is necessary to be familiar with the statutory scheme. The Marihuana Tax Act has tow main subparts. The first imposes a tax on transfers of marihuana, the second an occupational tax upon those who deal in the drug. It is convenient to begin with the occupational tax provisions, 26 U.S.C. §§ 4751—4753.

Section 4751 provides that all persons who 'deal in' marihuana shall be subject to an annual occupational tax. Subsections require that specified categories of persons, such as importers, producers, physicians, researchers, and millers pay varying rates of tax per year. See §§ 4751(1)(4), (6). Persons who 'deal in' marihuana but do not fall into any of the specified categories are required to pay $3 per year. See § 4751(5). Section 4753 provides that at the time of paying the tax the taxpayer must 'register his name or style and his place or places of business' at the nearest district office of the Internal Revenue Service.

The first of the transfer tax provisions, 26 U.S.C. § 4741, imposes a tax 'upon all transfers of marihuana which are required by section 4742 to be carried out in pursuance of written odder forms.' Section 4741 further provides that on transfers to persons registered under § 4753 the tax is $1 per ounce, while on transfers to persons not so registered the tax is $100 per ounce. The tax is required to be paid by the transferee 'at the time of securing each order form.'9 With certain exceptions not here relevant, 10 § 4742 makes it unlawful for any person, 'whether or not required to pay a special tax and register under sections 4751 to 4753,' to transfer marihuana except pursuant to a written order form to be obtained by the transferee. A regulation, 26 CFR § 152.69, provides that the order form must show the name and address of the transferor and transferee; their § 4753 registration numbers, if they are registered; and the quantity of marihuana transferred. Another regulation, 26 CFR § 152.66, requires the transferee to submit an application containing these data in order to obtain the form. Section 4742(d) of the Act requires the Internal Revenue Service to 'preserve' in its records a duplicate copy of each order form which it issues.

Another statutory provision, 26 U.S.C. § 4773, assures that the information contained in the order form will be available to law enforcement officials. 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.12 Peti- tioner was convicted under § 4744(a). He conceded at trial that he had not obtained an order form or paid the transfer tax.


If read according to its terms, the Marihuana Tax Act compelled petitioner to expose himself to a 'real and appreciable' risk of self-incrimination, within the meaning of our decisions in Marchetti, Grosso, and Haynes. Sections 4741—4742 required him, in the course of obtaining an order form, to identify himself not only as a transferee of marihuana but as a transferee who had not registered and paid the occupational tax...

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