United States v. Young

• Decision Date: 03 March 1970
• Docket Number: No. 18905.,18905.
• Citation: 422 F.2d 302
• Parties: UNITED STATES of America, Appellee, v. Francis E. YOUNG, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

422 F.2d 302 (1970)

UNITED STATES of America, Appellee, v. Francis E. YOUNG, Appellant.

No. 18905.

United States Court of Appeals, Eighth Circuit.

March 3, 1970.

Douglas W. Thomson, St. Paul, Minn., for appellant.

Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee; Robert G. Renner, U. S. Atty., on the brief.

Before GIBSON, LAY and BRIGHT, Circuit Judges.

GIBSON, Circuit Judge.

Francis E. Young, a St. Paul, Minnesota realtor, was convicted on four counts of marihuana violations. He was sentenced to five years imprisonment on Counts I, III and VII, and ten years on Count II, all of the counts to run concurrently.¹

Young was tried jointly with codefendant William L. Miller, the other codefendant Kenneth B. Mahmood previously having pleaded guilty to the conspiracy count (Count VII). Undercover agents purchased marihuana from Young on December 6-7, 1966, and the sufficiency of the evidence is not questioned. Young claims Fifth Amendment immunity to all of the transactions charged in the indictment, and also claims error in the admission of certain alleged incriminatory extrajudicial statements of codefendant Miller in violation of the Bruton rule.

We will first consider Count II, the § 4744(a) (1) violation for acquiring marihuana without paying the transfer tax imposed by § 4741(a),² as the constitutionality of a conviction under § 4744(a)³ appears to be governed by Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). The Supreme Court ruled that Leary's § 4744(a) (2) conviction, for transporting or concealing marihuana without complying with the transfer tax provisions of § 4741(a), violated Leary's Fifth Amendment privilege against self-incrimination in that one has a constitutional "right not to be criminally liable for one's previous failure to obey a statute which required an incriminatory act." Id. at 28, 89 S.Ct. at 1544.

The Government admits the applicability of Leary to § 4744(a) (1) and concedes that the conviction on Count II must be vacated. While Leary dealt solely with a § 4744(a) (2) violation, we think the invocation of the Fifth Amendment privilege against self-incrimination provides a full defense to conviction under § 4744(a) (1), since a person obviously would have to acquire the marihuana to knowingly transport or conceal it. For Young to have complied with the transfer tax provisions he would have had to obtain an order form and to pay the $100 per ounce tax on unregistered transferees, thereby identifying himself as a member of a "selective group inherently suspect of criminal activities" inasmuch as "those persons who might legally possess marihuana under state law are virtually certain either to be registered under § 4753 or to be exempt from the order form requirement." Id. at 18, 89 S. Ct. at 1538. Therefore, since these provisions create a "real and appreciable" hazard of incrimination, the rationale of Leary applies with equal force to a conviction under § 4744(a) (1) and the ten year sentence on Count II must be vacated.

Counts I and III charging illegal transfer of marihuana in violation of § 4742(a),⁴ however, are not governed by the ruling in Leary and must stand. Our prior decision in Baker v. United States, 412 F.2d 1010 (8th Cir. 1969), holding that Leary did control and was applicable to a transferor charged with failing to secure the transferee's compliance with the order form requirements of § 4742(a) was overruled in Buie v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969). In Buie, the Supreme Court, in a 6-2 decision authored by Mr. Justice White, held that the Fifth Amendment privilege against self-incrimination was not available as a defense for selling marihuana without the written order forms required by § 4742 (a).

The Court in Buie concluded that "there is no real and substantial possibility that the § 4742(a) order form requirement will in any way incriminate sellers for the simple reason that sellers will seldom, if ever, be confronted with an unregistered purchaser who is willing and able to secure the order form." Id. at 93, 90 S.Ct. at 287. The Court reasoned that it is most improbable that purchasers "would be willing to comply with the order form requirement even if their seller insisted on selling only pursuant to the form prescribed by law," because no rational prospective purchaser of marihuana would incriminate himself with federal and local authorities and pay the $100 per ounce tax in order to secure the order form, especially in view of the well-publicized Leary ruling "that the Fifth Amendment relieves unregistered buyers of any duty to pay the transfer tax and secure the incriminating order form." Id. at 92, 90 S.Ct. at 286.

Furthermore, Justice White points out that the dilemma which confronts the buyer does not confront the seller, since the statute purports to make all purchases of marihuana legal from the viewpoint of the buyer at his option, but in avoiding the federal penalty the buyer is forced to incriminate himself under state laws. In the seller's case a refusal by the buyer to secure the order form forecloses the making of a legal sale under federal law and the seller is left with only the alternative of not selling at all or violating the law.

Count VII alleged a conspiracy to violate 26 U.S.C. § 4755(b),⁵ which makes it unlawful for any person to transport marihuana within any area of the United States or its possessions, excepting seven categories of persons or groups, which include legitimate dealers and purchasers, physicians and other practitioners registered under § 4753 to prescribe or dispense the drug, common carriers or other persons who are engaged in transferring legitimate purchasers or possessors of the drug, and governmental officials acting within the scope of their official duties. The conspiracy count⁶ charged transportation of marihuana from Chicago, Illinois to St. Paul, Minnesota on several occasions in December, 1966 with the effective period of conspiracy operating between December 1 and December 17, 1966. Mahmood admittedly transported marihuana from the Chicago area to the St. Paul area on December 17, 1966 and was met at the airport by Young.

Defendant Young equates the proscription of § 4755(b) with § 4744(a) (2) which was found constitutionally offensive in Leary. We do not think this necessarily follows. Section 4755(b) is a flat proscription against the interstate transportation of marihuana, but it is neither applicable to those persons who have registered and paid the special tax required by §§ 4751-4753 inclusive,⁷ nor to certain other legitimate holders, dispensers or carriers as set forth in the statute.

In Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), the Supreme Court held that a conviction for possession of an unregistered firearm was in essence a conviction for failure to register, and that a conviction for failing to make such incriminating disclosures was unconstitutional in violation of the Fifth Amendment. Haynes therefore makes clear that our first task is to determine the "perimeter of the offense" made punishable by § 4755(b), that is, whether a conviction for violation of § 4755(b) is in fact a conviction for failure to register as required by 26 U.S.C. § 4753 and for failure to pay the special tax required by 26 U.S.C. § 4751. If the answer is in the affirmative, we must then determine whether compliance with §§ 4751-4753 would involve substantial hazards of incrimination in violation of the Fifth Amendment.⁸

Section 4755(b) is independent of registration § 4753, which, as but one of seven exceptions to the proscription, does not control the entire thrust of the proscribed activity. Section 4755 in no way requires registration. "In fact, there is strong support in the legislative history for the proposition that illicit consumers of marihuana * * * are not entitled to register." Leary v. United States, 395 U.S. at 24 n. 38, 89 S.Ct. at 1541. That the registration provisions contemplate only those involved in legitimate activity in marihuana is shown conclusively by 26 C.F.R. § 151.24 (1969), which requires an applicant to show that he is legally qualified or lawfully entitled to engage in dealing in or dispensing marihuana under the laws of the jurisdiction in which he is operating or proposes to operate. Since defendant Young was not entitled to register, he could not be incriminated by a disclosure obligation which did not apply to him. United States v. Castro, 413 F.2d 891, 893 (1st Cir. 1969); Baughman v. United States, 301 F.Supp. 509, 512 (D.Minn.1969). The fact that compliance with §§ 4751-4753 is a defense to a § 4755(b) prosecution is of no consequence since it was impossible for Young to comply with §§ 4751-4753. Cf. United States v. Castro, supra at 893-894.

Furthermore, even if it were found that a § 4755(b) conviction is really a conviction for failing to register and pay the special tax required by §§ 4751-4753 and that those involved in illicit marihuana activity could register, registration under § 4753 is not necessarily incriminating. There can be and are legitimate registrants, such as physicians, veterinarians, manufacturers of Cannabis sativa L. and fiber products thereof, research personnel, and certain importers, which distinguishes § 4753 from the constitutionally impermissible registration sections condemned in Marchetti,⁹ Grossos,¹⁰ and Haynes. The registration section on marihuana thus is not directed principally against an inherently suspect group as are the registration provisions of 26 U.S.C. §§ 5841-51, which require possessors of firearms (of a type used principally by persons engaged in unlawful activities) to register their possession, and 26 U.S.C. §§ 4401, 4411 and 4412, which require those engaged in gambling operations to register and pay a tax. Although we need not reach the question, we feel that the Fifth Amendment is not violated by the...