US SUPREME COURT DECISIONS

Petitioner, accompanied by his daughter, son, and two others, on an automobile trip from New York to Mexico, after apparent denial of entry into Mexico, drove back across the International Bridge into Texas, where a customs officer, through a search, discovered some marihuana in the car and on petitioner's daughter's person. Petitioner was indicted under 26 U.S.C. § 4744(a)(2), a subsection of the Marihuana Tax Act, and under 21 U.S.C. § 176a. At petitioner's trial, which resulted in his conviction, petitioner admitted acquiring the marihuana in New York (but said he did not know where it had been grown) and driving with it to Laredo, Texas, thence to the Mexican customs station, and back to the United States. The Marihuana Tax Act levies an occupational tax upon all those who "deal in" the drug, and provides that the taxpayer must register his name and place of business with the Internal Revenue Service. The Act imposes a transfer tax "upon all transfers of marihuana" required to be effected with a written order form, and all except a limited number of clearly lawful transfers must be effected with such a form. The Act further imposes a transfer tax of $1 per ounce on a registered transferee and $100 per ounce on an unregistered transferee. The forms, executed by the transferee, must show the transferor's name and address and the amount of marihuana involved. A copy of the form is "preserved" by the Internal Revenue Service, and the information contained in the form is made available to law enforcement officials. Possession of marihuana is a crime in Texas, where petitioner was arrested, in New York, where petitioner asserted the transfer occurred, and in all the other States. Section 4744(a)(2) prohibits transportation or concealment of marihuana by one who acquired it without having paid the transfer tax, which petitioner conceded that he had not done. Petitioner claimed in his motion for a new trial that his conviction under the Marihuana Tax Act violated his privilege against self-incrimination, and he argues that this Court's subsequent decisions in Marchetti v. United States, 390 U. S. 39, Grosso v. United States, 390 U. S. 62, and Haynes v. United chanrobles.com-red

Page 395 U. S. 7

States, 390 U. S. 85, require reversal. The Government contends that the Act's transfer tax provisions do not compel incriminatory disclosures because, as administratively construed and applied, they permit prepayment of the tax only by persons whose activities are otherwise lawful. Title 21 U.S.C. § 176a makes it a crime to transport or facilitate the transportation of illegally imported marihuana, with knowledge of its illegal importation, and 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. The trial court instructed the jury that it might find petitioner guilty of violating § 176a (1) solely on petitioner's testimony that the marihuana had been brought back from Mexico into the United States and that, with knowledge of that fact, petitioner had continued to transport it, or (2) partly upon his testimony that he had transported the marihuana from New York to Texas and partly upon the § 176a presumption. Petitioner contends that application of that presumption denied him due process of law.

Held:

1. Petitioner's invocation of the privilege against self-incrimination under the Fifth Amendment provided a full defense to the charge under 26 U.S.C. § 4744(a)(2). Pp. 395 U. S. 12-29.

(a) Since the effect of the Act's terms were such that legal possessors of marihuana were virtually certain to be registrants or exempt from the order form requirement, compliance with the transfer tax provisions would have required petitioner, as one not registered but obliged to obtain an order form, unmistakably to identify himself as a member of a "selective group inherently suspect of criminal activities," and thus those provisions created a "real and appreciable" hazard of incrimination within the meaning of Marchetti, Grosso, and Haynes. Pp. 395 U. S. 16-18.

(b) It is clear from both the language of the Act and its legislative history that, contrary to the interpretation which the Government would give to the transfer provisions, Congress intended that a nonregistrant should be able to obtain an order form and prepay the transfer tax. Pp. 395 U. S. 18-26.

(c) Since the Act was clearly aimed at bringing to light violations of the marihuana laws, this Court will not impose restrictions upon the use of information revealed by the transfer provisions in order to avoid the constitutional issue. Pp. 395 U. S. 26-27. chanrobles.com-red

Page 395 U. S. 8

(d) Petitioner's claim of the privilege was timely and, under the circumstances of this case, his failure to assert the privilege at the trial (which antedated this Court's decision in Marchetti, Grosso, and Haynes) did not constitute a waiver. Pp. 395 U. S. 27-28.

(e) By taking the stand, petitioner waived his right to remain silent at trial but not, as the Court of Appeals erroneously held, his right to plead that the Act violated the privilege against self-incrimination; nor was the latter right waived by his testifying that his noncompliance with the Act had a religious motivation, since other parts of his testimony indicated that he was also influenced by an apprehension that, by trying to pay the tax, he might incriminate himself. Pp. 395 U. S. 27-29.

2. In the circumstances of this case, the application of that part of the presumption in 21 U.S.C. § 176a which provides that a possessor of marihuana is deemed to know of its unlawful importation denied petitioner due process of law in violation of the Fifth Amendment. Pp. 395 U. S. 29-53.

(a) The jury, under the trial court's instructions, might have convicted petitioner with the aid of the § 176a presumption, and petitioner is not foreclosed from challenging the constitutionality of that presumption because the jury might have based its verdict on the alternative theory in those instructions which did not rest upon that presumption. When a case is submitted to the jury on alternative theories, the unconstitutionality of any of the theories requires that the conviction be set aside. See Stromberg v. California, 283 U. S. 359. Pp. 395 U. S. 30-32.

(b) A criminal statutory presumption must be regarded as "irrational" or "arbitrary," and hence unconstitutional, unless it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend. Tot v. United States, 319 U. S. 463. Pp. 395 U. S. 32-36.

(c) Even if it assumed that the great preponderance of marihuana used in the United States is smuggled from Mexico, and that the inference of illegal importation is therefore justified, it does not, under the Tot test, follow (since a significant amount may not have been imported at all) that a majority of marihuana possessors "know" that their marihuana was illegally imported, and the inference of knowledge is therefore impermissible unless it appears on the basis of available materials that most such possessors are aware either of the high rate of importation or that their marihuana was grown abroad. Pp. 395 U. S. 39-47. chanrobles.com-red

Page 395 U. S. 9

(d) A possessor of marihuana might "know" that his marihuana came from abroad in any one o five ways: (1) he might be aware of the proportion of domestically consumed marihuana smuggled from abroad and deduce that his was illegally imported; (2) he might have smuggled it himself; (3) he might have learned indirectly that the marihuana supplied in his locality came from abroad; (4) he might have specified foreign marihuana when making his purchase; (5) he might be able to tell the source of the marihuana from its appearance, packaging, or taste. Neither the legislative record nor other sources establish with substantial assurance that even a majority of marihuana possessors have learned the source of their marihuana in one or more of these ways. Pp. 395 U. S. 47-52.

383 F.2d 851, 392 F.2d 220, reversed in part and reversed and remanded in part.