United States v. Minor, No. 527

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Writing for the Court: FRIENDLY, SMITH and KAUFMAN, Circuit
• Citation: 398 F.2d 511
• Parties: UNITED STATES of America, Appellee, v. James MINOR, Appellant.
• Docket Number: No. 527,Docket 31953.
• Decision Date: 03 July 1968

398 F.2d 511 (1968)

UNITED STATES of America, Appellee,
v.
James MINOR, Appellant.

No. 527, Docket 31953.

United States Court of Appeals Second Circuit.

Argued June 11, 1968.

Decided July 3, 1968.

398 F.2d 512

John S. Allee, Asst. U. S. Atty., New York City (Robert M. Morgenthau, U. S. Atty., Pierre N. Leval, Asst. U. S. Atty., of counsel), for appellee.

Phylis Skloot Bamberger, Legal Aid Society, New York City (Anthony F. Marra, New York City, of counsel), for appellant.

Before FRIENDLY, SMITH and KAUFMAN, Circuit Judges.

IRVING R. KAUFMAN, Circuit Judge:

The sole question presented is whether the Fifth Amendment privilege against self-incrimination affords a defense to a prosecution for selling narcotic drugs without the mandatory written order form required by 26 U.S.C. § 4705(a).¹

Following a trial before Judge Weinfeld without a jury, appellant James Minor was found guilty on two counts of selling heroin hydrochloride without the prescribed Treasury Department written order form. He was sentenced to the statutory minimum of five years' imprisonment on each count, the sentences to run concurrently. On this appeal, Minor does not allege the commission of any error by the Judge at the trial and concedes that we must affirm if we conclude that requiring compliance with § 4705(a) does not contravene the privilege against self-incrimination. Thus, for our purposes it is sufficient to note that Minor's one-day trial was not atypical of the usual narcotics prosecution. The government's case was presented through the testimony of federal agents and the defendant introduced evidence purporting to show that he was entrapped. Any conflicts or discrepancies in the testimony were obviously for the fact finder to resolve, United States ex rel. Anderson v. Fay, 394 F.2d 109 (2d Cir. 1968) (per curiam). Accordingly, we turn at once to consideration of Minor's Fifth Amendment claim.²

The problem before us has its genesis in a trilogy of recent decisions in which the Supreme Court reemphasized the importance of the privilege against self-incrimination in our adversary system of criminal justice and extended its reach to those "inherently suspect of criminal activities," Albertson v. S. A. C. B., 382 U.S. 70, 79, 86 S.Ct. 194, 15 L.Ed.2d 165 (1965), who are required by certain statutes to register with the Secretary of the Treasury or to pay special taxes. In

398 F.2d 513

Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), the Court reversed a conviction under the federal wagering tax statutes for evading payment of the annual occupational tax, 26 U.S.C. § 4411, and for wilfully failing to register with the Treasury, 26 U.S.C. § 4412; in Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L. Ed.2d 906 (1968) a conviction for violating § 4411 and for failing to pay the special excise tax imposed on wagering, 26 U.S.C. § 4401, was set aside; in Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), the same fate befell a conviction for knowingly possessing a firearm, 26 U.S.C. § 5851, which had not been registered as required by 26 U.S.C. § 5841. In all three instances, Mr. Justice Harlan, speaking for the Court, reasoned that the petitioner was confronted by a comprehensive statutory scheme directed against a proscribed activity and was required, on pain of prosecution, to provide the government with information that might be used to convict him of a crime

Minor claims here that the prohibition against the transfer of narcotics except in pursuance of a written order form is comparable to the provisions before the Supreme Court in Marchetti, Grosso and Haynes and that consequently his conviction must fall. Although § 4705(a) has been enforced against thousands of violators since its enactment in 1914, 38 Stat. 786, including cases which reached the Supreme Court, e. g., Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L. Ed.2d 1405 (1958), we recognize that the Court's recent pronouncements require a fundamental reevaluation of the statute.³ Our examination of the statutory scheme convinces us, however, that Marchetti and its companion cases are not dispositive of this appeal and that there is no conflict between enforcement of § 4705(a) and the purpose, philosophy and spirit of the privilege against self-incrimination.

Considered in vacuo, compliance with § 4705(a) does not present any threat of self-incrimination. It simply provides that no sale may be made except to one who furnishes an appropriate Treasury Department written order form. The statutory language makes manifest — and Minor concedes — that the purchaser of narcotics and not the seller is under compulsion to apply for and obtain the requisite order form.⁴ Even if we were to assume arguendo that the registration and tax provisions infringe upon the purchaser's Fifth Amendment rights because order forms are available only to prospective purchasers who have registered under 26 U.S.C. § 4722 and paid the special tax imposed by 26 U.S.C. § 4721,⁵ see 26 U. S.C. § 4705(f), it hardly follows that a seller, such as Minor, is immune from prosecution for selling to a person who failed to provide the form. We need cite no authority for the principle that the privilege afforded by the Fifth Amendment is personal and that under the circumstances present here a seller cannot benefit from the privilege allegedly available to the buyer. Whatever views Minor may have had concerning passing of possession of heroin, it is clear that standing under the Fifth Amendment is not freely negotiable nor transferable.

398 F.2d 514

Minor maintains, however, that § 4705(a) must be examined in the context of the entire statutory and regulatory scheme and that when so viewed the potential for incrimination becomes apparent. Specifically, he argues that 26 C.F.R. § 151.185 requires the seller to enter on the form supplied by the buyer the number and size of the stamped packages of drugs furnished and the date that each order was filled. In addition, both the seller and the buyer must preserve a copy of the form for 2 years and keep it readily accessible to inspection by appropriate government officials, 26 U.S.C. §§ 4705(d) and (e);⁶ and a third copy of the form must be forwarded by the seller to the narcotic district supervisor of the district in which the seller is located, 26 C.F.R. § 151.201. Minor urges, therefore, that the information he was required to furnish and make available to the government "would surely prove a significant `link in a chain' of evidence tending to establish his guilt" under a number of statutes. See Marchetti v. United States, supra, 390 U.S. at 48, 88 S.Ct. 697. In sum, it is Minor's claim that his answers on the form would tend to prove that he supplied...