395 U.S. 6 (1969)
On December 20, 1965, Dr. Timothy Leary left New York by automobile.1 He intended a vacation trip to Yucatan, Mexico.2 Leary was accompanied by his teenage daughter and son along with two other persons.3
On December 22, 1965, the party drove across the International Bridge between the United States and Mexico at Laredo, Texas.4 They stopped at the Mexican customs station.5 After being denied entry, they drove back across the bridge.6 They halted at the American secondary inspection area and stated they had nothing from Mexico to declare.7
A customs inspector examined the car interior and observed what appeared to be marihuana seeds on the floor.8 The inspector received permission to search the car and passengers.9 Small amounts of marihuana were found on the car floor and in the glove compartment.10 A silver snuff box containing semi-refined marihuana and three partially smoked marihuana cigarettes was found on Leary’s daughter.11
Leary was indicted and tried before a jury in the Federal District Court for the Southern District of Texas.12 The indictment contained three counts.13 The first alleged knowing smuggling of marihuana into the United States in violation of 21 U.S.C. § 176a.14 The second charged knowing transportation and facilitation of transportation and concealment of illegally imported marihuana with knowledge of the illegal importation, again in violation of § 176a.15 The third alleged that Leary was a transferee of marihuana who knowingly transported, concealed, and facilitated the transportation and concealment of marihuana without having paid the transfer tax imposed by the Marihuana Tax Act in violation of 26 U.S.C. § 4744(a)(2).16
After both sides presented evidence and the defense moved for a judgment of acquittal, the District Court dismissed the first smuggling count.17 The jury found Leary guilty on the other two counts.18 He was tentatively sentenced to the maximum punishment pending completion of a study and recommendations for final sentencing.19
On appeal the Court of Appeals for the Fifth Circuit affirmed the convictions.20 That court subsequently denied a petition for rehearing and rehearing en banc.21 The Supreme Court granted certiorari to consider the two questions arising from the convictions.22
Whether petitioner’s conviction for failing to comply with the transfer tax provisions of the Marihuana Tax Act violated his Fifth Amendment privilege against self-incrimination?23
The Fifth Amendment privilege against self-incrimination provides a complete defense to prosecution under a statutory scheme that requires an individual to provide information creating a real and appreciable risk of criminal liability.24 This is particularly true when the statute targets a selective group inherently suspect of criminal activities and makes the information available to law enforcement officials.25
Yes. The Marihuana Tax Act required Leary to obtain an order form identifying himself as an unregistered transferee of marihuana.26 He also had to pay the $100 per ounce tax.27 Copies of the forms were available to state and local officials upon request.28 At the time of Leary's acquisition in late 1965, possession of marihuana was a crime in every state.29 Those who could legally possess it under state law were virtually certain to be registered or exempt from the order form requirement.30 Compliance would therefore have placed Leary in the class of unregistered transferees.31 This created a significant link in the chain of evidence for state prosecutions.32
The regulations requiring proof of legal qualification to deal in marihuana did not eliminate this hazard.33 Signature comparison rules likewise failed to remove the risk.34 Those regulations conflicted with the statutory language and legislative history.35 Congress intended nonregistrants to be able to prepay the tax.36 Leary's claim was timely.37 It was not waived by his trial testimony.38 That testimony was consistent with asserting the privilege as a defense to the prior failure to comply.39
The conviction under 26 U.S.C. § 4744(a)(2) therefore violated the Fifth Amendment and must be reversed outright.40
Related opinions on this issue
Justice Black concurred in the outright reversal of the petitioner’s conviction on Count 3 of the indictment for the reasons set out in Part I of the Court’s opinion.41 He joined the majority’s holding that the conviction under the Marihuana Tax Act violated the Fifth Amendment privilege against self-incrimination.42 Black agreed that the transfer tax provisions created a real and appreciable hazard of incrimination because they compelled Leary to identify himself as an unregistered transferee.43
His concurrence rested on the analysis showing that the statutory scheme made incriminating information available to law enforcement officials.44 Black accepted the majority’s conclusion that the regulations could not eliminate the constitutional problem because they contradicted congressional intent to allow nonregistrants to prepay the tax.45
Whether petitioner was denied due process by the application of the part of 21 U. S. C. § 176a which 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?
A criminal statutory presumption is unconstitutional under the Due Process Clause unless there is a rational connection such that the presumed fact is more likely than not to flow from the proved fact on which the presumption depends.46 This standard was established in Tot v. United States and applied in United States v. Gainey and United States v. Romano.47
Yes. The presumption authorized the jury to infer from Leary's possession both that the marihuana was illegally imported and that he knew of the illegal importation.48 While data supported the inference of importation itself, the available materials did not establish with substantial assurance that a majority of marihuana possessors knew their marihuana was imported.49 Legislative history, seizure statistics, and secondary sources left uncertain whether possessors learned the origin through smuggling, indirect means, supplier statements, or physical characteristics.50 A significant portion of domestically consumed marihuana appeared to be grown in the United States.51
The jury was instructed on alternative theories, one relying on the presumption.52 The invalidity of the knowledge inference therefore required reversal of the conviction on Count 2.53 Congressional deference could not overcome the absence of an adequate empirical foundation for the presumption.54
Application of the presumption therefore denied petitioner due process of law, and the conviction on Count 2 must be reversed and remanded for further proceedings.55
Related opinions on this issue
Justice Stewart joined Part II of the Court’s opinion addressing the due process challenge to the marihuana importation presumption.56 He reiterated his conviction that the Fifth Amendment guarantee against compulsory self-incrimination was originally intended to do no more than confer a testimonial privilege in a judicial proceeding.57 He observed that the Court had drifted far from that mooring in decisions such as Marchetti v. United States and Grosso v. United States.58
Nevertheless, the authoritative weight of precedent permitted no escape from the conclusion reached by the Court.59 He therefore joined the opinion and judgment on the due process issue.60
Justice Black concurred in the reversal of the conviction on Count 2 of the indictment based on 21 U.S.C. § 176a.61 He explained that the section makes it a crime to import marihuana into the United States or to receive, conceal, or transport it knowing it to have been imported contrary to law.62 The provision then states that mere possession of marihuana shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury.63
The trial court charged the jury that proof that petitioner merely had possession of marihuana was sufficient to authorize a finding that he knew it had been imported or brought into the United States contrary to law.64 It is clear beyond doubt that the fact of possession alone is not enough to support an inference that the possessor knew it had been imported.65 Congress has no constitutional power to tell a jury it can convict upon any such forced and baseless inference.66 This violates the constitutional right of a defendant to be tried by jury in a court set up in accordance with the commands of the Constitution.67