Manning v. United States, 17731.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtHUTCHESON, TUTTLE and WISDOM, Circuit
Citation274 F.2d 926
PartiesWilliam Arthur MANNING, Appellant, v. UNITED STATES of America, Appellee.
Docket NumberNo. 17731.,17731.
Decision Date21 January 1960

274 F.2d 926 (1960)

William Arthur MANNING, Appellant,
UNITED STATES of America, Appellee.

No. 17731.

United States Court of Appeals Fifth Circuit.

January 21, 1960.

274 F.2d 927

Philip T. Weinstein, Arthur B. Cunningham, Michael F. Zarowny, Miami, Fla., for appellant.

David C. Clark, Jr., Asst. U. S. Atty., James L. Guilmartin, U. S. Atty. for Southern Dist. of Florida, Miami, Fla., for appellee.

Before HUTCHESON, TUTTLE and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

On January 15, 1958, an indictment was returned charging that in the Southern District of Florida, the appellant, William Arthur Manning, and Sally Gelston "did acquire and otherwise obtain" marihuana without having paid the transfer tax, in violation of 26 U.S.C.A. § 4744(a). Manning entered a plea of not guilty, moved to suppress certain evidence, and moved to dismiss the indictment. Both motions were denied. The cause went to trial. At the close of the government's evidence, Manning moved for a judgment of acquittal alleging, among other grounds, that a part of Section 4744 was unconstitutional. This motion too was denied. Appellant offered evidence and, at the close of the evidence, renewed his motions. The trial court reserved ruling and submitted the case to the jury. The jury returned verdicts of guilty as to appellant and his co-defendant. Appellant renewed his motions for judgment of acquittal, again urging the unconstitutionality of Section 4744(a). This motion was denied. Judgment was entered against Manning imposing a fine of $500 and imprisonment for three years. Appellant Manning appeals from this judgment. We affirm.

The facts may be stated briefly. In April 1957 two inspectors of the Florida State Bureau of Narcotics and two officers of the Miami Beach Police Department, without a warrant, broke into a house in North Miami, Florida, where the defendants, Manning and Gelston, were living. No one was at home. The police officers were beyond their territorial jurisdiction; they broke in, allegedly "to search the house in the event someone was hiding in the house". The Florida narcotics inspectors acted on instructions from the State Attorneys' office; they had been informed that a capias had been issued for Manning's arrest. The inspectors and the police officers found in one of the bedrooms a wicker basket containing marihuana.

Shortly after Manning and Gelston returned home, the officers, who had been watching the house, came to the door. They told the defendants that they had a warrant. This was false. The officers entered the house and placed Manning and Gelston under arrest. Sally Gelston, according to the testimony, "jumped out of her shoes", grabbed up the wicker basket, and ran down the hall with it in the direction of Manning's bedroom.

274 F.2d 928
The officers searched the room. They found the basket in a closet. They also found a plastic package containing marihuana in the top dresser-drawer. Manning denied any knowledge of the plastic package. He refused to answer any questions. He admitted however that the room was his bedroom. The next door neighbor testified that she knew of no one else living in the house except Manning and Gelston

Twenty-one months later, on January 5, 1959, in Chicago, Illinois, Joseph Dino, a federal narcotic agent, served demands on Manning and Gelston to produce an official order form covering the transfer of the marihuana found in their possession in Miami, Florida. Appellant contends that the forms were incomplete in that the time and place of production were blank. The exhibit admitted in evidence was addressed to Manning and demanded that Manning produce an official order form within eight days. Dino testified that he told Manning he should produce the required order form at Room 817, New Post Office Building, Chicago, Illinois. The agent testified that he read the order to Manning and filled it out on the copy that was served after he had read the order. He filled out Manning's copy and other copies after he read the form to Manning.

During the conversation in Chicago, Dino testified, Manning asked him to explain what the order form amounted to, and what was required to obtain one. Dino explained to him that in certain circumstances one may possess marihuana legally, provided that an application is made to the Director of Internal Revenue to obtain the order form covering the transfer of marihuana; that the tax for the form is one cent, and that there was a tax on the marihuana itself. Manning asked the agent, if he paid the tax would that settle the case. Dino replied that he could not answer that question.

No evidence was presented as to non-payment of the tax or as to the acquisition or as to the place of acquisition, the government announcing its reliance upon the statutory presumption of guilt based on the fact of possession. The pertinent statute, 26 U.S.C.A. § 4744(a) (1),1 provides:

"(a) Persons in general. — It shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by section 4741(a)
"(1) to acquire or otherwise obtain any marihuana without having paid such tax. * * * Proof that any person shall have had in his possession any marihuana and shall have failed, after reasonable notice and demand by the Secretary or his delegate, to produce the order form required by section 4742 to be retained by him shall be presumptive evidence of guilt under this subsection and of liability for the tax imposed by section 4741(a)." (Emphasis added.)


The appellant challenges the constitutionality of Section 4744(a) (1) on the ground that the statute fails to meet the requirements of due process in that there is no rational connection between the ultimate facts presumed and the facts proved ("possession" plus failure to produce the order form) on which the presumption is based. Appellant concentrates on the point that there is no rational connection between the illegal act of obtaining marihuana and the presumption that the act occurred in the venue

274 F.2d 929
where the defendant was found and arrested.2

In a case frequently cited for its statement of the "rational connection" test, Mobile, J. & K. C. R. Co. v. Turnipseed, 1910, 219 U.S. 35, 43, 31 S.Ct. 136, 138, 55 L.Ed. 78, the Supreme Court said:

"That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law, it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed."

See also Yee Hem v. United States, 1925, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904; Minski v. United States, 6 Cir., 1942, 131 F.2d 614, affirmed 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; Annotations, 51 A.L.R. 1139, 86 A.L.R. 179, 162 A.L.R. 495; 4 Wigmore, Evidence, § 1356 (2d 1940); Brosman, Statutory Presumptions, 4 Tul.L.Rev. 17, 178 (1930-1931); Hale, Necessity of Logical Inference to Support a Presumption, 17 So.Cal.L.Rev. 48 (1943).

Tot v. United States, 1943, 319 U.S. 463, 63 S.Ct. 1241, 1243, 87 L.Ed. 1519 added a corollary to the rational connection test.3 The Supreme Court had before it the Federal Firearms Act, 15 U.S. C.A. § 902(f). This act made it unlawful for a person who is a fugitive from justice or convicted of a crime of violence to receive a firearm shipped in interstate commerce. The act provided that the possession of a firearm shall be "presumptive evidence that such firearm or ammunition was shipped or transported or received, as the case may be, by such person in violation of this Act". The Supreme Court stated:

"The Government seems to argue that there are two alternative tests of the validity of a presumption created by statute. The first is that there be a rational connection between the facts proved and the fact presumed; the second that of comparative convenience of producing evidence of the ultimate fact. We are of opinion that these are not independent tests but that the first is controlling and the second but a corollary. Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts."

Substantially the same argument was made in Caudillo v. United States, 9 Cir.,

274 F.2d 930
1958, 253 F.2d 513, 517, certiorari denied in Romero v. United States, 357 U.S. 931, 78 S.Ct. 1375, 2 L.Ed.2d 1373 as was made in the instant case. Caudillo involved the prohibition of the importation or possession of marihuana in violation of 21 U.S.C.A. § 176a. This section is almost identical with 26 U.S.C.A. § 4744 in that...

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