United States v. Buie, No. 346
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
| Writing for the Court | MEDINA, SMITH and HAYS, Circuit |
| Citation | 407 F.2d 905 |
| Parties | UNITED STATES of America, Appellee, v. Michael S. BUIE, Appellant. |
| Decision Date | 12 March 1969 |
| Docket Number | No. 346,Docket 32826. |
407 F.2d 905 (1969)
UNITED STATES of America, Appellee,
v.
Michael S. BUIE, Appellant.
No. 346, Docket 32826.
United States Court of Appeals Second Circuit.
Argued January 23, 1969.
Decided March 12, 1969.
Certiorari Granted June 23, 1969.
Gary P. Naftalis, Asst. U. S. Atty., Southern Dist. of New York (Robert M. Morgenthau, U. S. Atty. and Douglas S. Liebhafsky, Asst. U. S. Atty., on the brief), for appellee.
David A. Diamond, New York City (Harold J. Rothwax, New York City, on the brief), for appellant.
Before MEDINA, SMITH and HAYS, Circuit Judges.
Certiorari Granted June 23, 1969. See 89 S.Ct. 2150.
J. JOSEPH SMITH, Circuit Judge:
The defendant, Michael S. Buie, was convicted after jury trial of selling marihuana without the mandatory written order form required by 26 U.S.C. § 4742(a).1 He was sentenced for an indefinite
The main question presented is whether the Fifth Amendment privilege against self-incrimination can be invoked in a situation where the seller is convicted of selling marihuana in violation of section 4742(a). Since we are unable to distinguish this case from a prosecution for the unlawful transfer of narcotics under 26 U.S.C. § 4705(a), we affirm the conviction on the basis of United States v. Minor, 398 F.2d 511 (2 Cir.1968).
Section 4705(a) prohibits the sale of narcotics drugs unless the buyer furnishes a written order form "issued in blank for that purpose by the Secretary of the Treasury or his delegate." In Minor, we concluded that the seller is not required to register or in any way incriminate himself in order to comply fully with the provisions of section 4705(a), since it is "the purchaser of narcotics and not the seller who is under compulsion to apply for and obtain the requisite order form." Id. at 513. The seller, therefore, can comply with section 4705(a) simply by requiring prospective purchasers to produce a valid written order form. Although 26 C. F.R. § 151.201 requires the seller to write his name on the written order form and forward a triplicate copy to the district supervisor, this is not done until after the transaction is completed, and thus it is possible for the seller to comply with the literal requirements of section 4705(a) and avoid the self-incrimination dilemma.
The defendant urges that 26 U.S.C. § 4742(a) is significantly different from the transfer provision we upheld in Minor. Actually there is only one difference, and it is not crucial. Like 26 U.S. C. § 4705(a), the section involved here prohibits any transfer of marihuana unless the buyer furnishes the mandatory written order form. Before the purchaser can obtain the requisite order form, however, he must give not only his name but the name of the proposed seller and state how much marihuana he expects to purchase.2 Since the defendant has been convicted of selling marihuana in violation of 26 U.S.C. § 4742(a), and since section 4742(c) states those conditions which must be met before the purchaser can obtain a written order form, we must consider these two sections together in determining whether compliance by the purchaser would have posed a self-incrimination dilemma to the seller. See Grosso v. United States, 390 U. S. 62, 65, 88 S.Ct. 709, 712, 19 L.Ed.2d 906 (1968), where Mr. Justice Harlan said that the risk of self-incrimination "may properly be determined only after assessment of the hazards of incrimination which would result from `literal and full compliance' with all of the statutory requirements."
If section 4742(c) required the seller rather than the purchaser to write his name on the order form involved here as a prerequisite to any sale, this would undoubtedly violate the privilege against self-incrimination, since the seller would be "required, on pain of criminal prosecution, to provide information which he might reasonably suppose would be available to prosecuting authorities, and which would surely prove a significant `link in the chain' of evidence tending to establish his guilt." Marchetti v. United States, 390 U.S. 39, 49, 88 S.Ct. 697,...
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U.S. v. Washington, Nos. 95-3097
...Circuits that have not recognized the defense of vicarious or derivative entrapment" and collecting cases). 6 United States v. Buie, 407 F.2d 905, 908 (2d Cir.), aff'd on other grounds sub nom., Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969); see also United S......
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U.S. v. Valencia, Nos. 726
...Braver, 450 F.2d 799, 801 n.4 (2d Cir. 1971), cert. denied, 405 U.S. 1064, 92 S.Ct. 1493, 31 L.Ed.2d 794 (1972), 3 United States v. Buie, 407 F.2d 905, 908 n.5 (2d Cir.), aff'd 396 U.S. 87, 89 S.Ct. 284, 24 L.Ed.2d 283 (1969), United States v. DeAlesandro, 361 F.2d 694, 698 (2d Cir.), cert.......
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U.S. v. Myers, Nos. 904
...en banc), "the defense is available, of course, where government agents act through private citizens," United States v. Buie, 407 F.2d 905, 908 (2d Cir.), aff'd on other grounds sub nom. Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969); see Lopez v. United ......
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United States v. Cromitie, Docket Nos. 11–2763(L), 11–2884(con), 11–2900(con), 11–3785(con).
...(“derivative entrapment defense available ‘where government agents act through private citizens' ”) (quoting United States v. Buie, 407 F.2d 905, 908 (2d Cir.1969), aff'd without consideration of this point sub nom. Minor v. United Sates, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969)); U......
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U.S. v. Washington, Nos. 95-3097
...Circuits that have not recognized the defense of vicarious or derivative entrapment" and collecting cases). 6 United States v. Buie, 407 F.2d 905, 908 (2d Cir.), aff'd on other grounds sub nom., Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969); see also United S......
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U.S. v. Valencia, Nos. 726
...Braver, 450 F.2d 799, 801 n.4 (2d Cir. 1971), cert. denied, 405 U.S. 1064, 92 S.Ct. 1493, 31 L.Ed.2d 794 (1972), 3 United States v. Buie, 407 F.2d 905, 908 n.5 (2d Cir.), aff'd 396 U.S. 87, 89 S.Ct. 284, 24 L.Ed.2d 283 (1969), United States v. DeAlesandro, 361 F.2d 694, 698 (2d Cir.), cert.......
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U.S. v. Myers, Nos. 904
...en banc), "the defense is available, of course, where government agents act through private citizens," United States v. Buie, 407 F.2d 905, 908 (2d Cir.), aff'd on other grounds sub nom. Minor v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969); see Lopez v. United ......
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United States v. Cromitie, Docket Nos. 11–2763(L), 11–2884(con), 11–2900(con), 11–3785(con).
...(“derivative entrapment defense available ‘where government agents act through private citizens' ”) (quoting United States v. Buie, 407 F.2d 905, 908 (2d Cir.1969), aff'd without consideration of this point sub nom. Minor v. United Sates, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969)); U......