Timothy LEARY, Appellant, v. UNITED STATES of America, Appellee
No. 23570
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
383 F.2d 851
September 29, 1967
JUDGES: Gewin and Ainsworth, Circuit Judges, and Lynne, District
Judge.
OPINION BY: AINSWORTH
OPINION
[*853] AINSWORTH, Circuit Judge:
This unusual criminal case delves into the new realm of psychedelic experience,
and into mysticism, religion and its free exercise. The principal issue we must
decide is whether the conviction of appellant for violations of federal criminal
statutes relating to marihuana -- a psychedelic drug which the defendant claims
he uses as a religious sacramental aid -- contravenes the accused's First Amendment
right to the free exercise of his religion. There are, however, other important
questions, some of them constitutional also, which we will discuss fully.
Dr. Timothy Leary, appellant, and his minor daughter, Susan Leary, age 18, were
jointly indicted on three counts for offenses pertaining to marihuana. Dr. Leary
was tried before a jury on March [*854] 11, 1966. Count 1, which
charged the smuggling of marihuana into the United States which should have been
invoiced (declared), was dismissed by the court following a motion for judgment
of acquittal. Dr. Leary was found guilty, however, on Count 2, which charged transportation,
and facilitation of transportation, and concealment of marihuana after importation,
[Footnote 1] in violation of 21 U.S.C. § 176a, [Footnote 2] and on Count 3, which
charged transportation and concealment of marihuana by defendants as transferees,
required to pay the transfer tax imposed by the Internal Revenue Code, [Footnote
3] in violation of 26 U.S.C. § 4744(a)(2). [Footnote 4] Appellant was sentenced
to the maximum penalties and fines provided for such offenses, subject, however,
to the provisions of 18 U.S.C.§ 4208(b), and was [*855] ordered
committed to the medical center at Springfield, Missouri, for a complete study [Footnote
5] to be used by the court as a basis for determining the ultimate sentence in the
case. Defendant's motion for a new trial was denied.
The court ordered that the sentences imposed be consecutive and the fines cumulative
(amounting to a total of 30 years and $40,000). The district judge of course is
awaiting the outcome of this appeal, and upon our affirmation, under the provisions
of 18 U.S.C. § 4208(b) may, in his discretion, reduce the term of imprisonment or
place the appellant on probation under Count 3 and reduce the sentence of imprisonment
under Count 2. However, conviction under 21 U.S.C. § 176a requires a mandatory sentence
of five years, and under 26 U.S.C. § 7237 there can be no suspension of sentence
or probation for such conviction.
Susan Leary was tried at the same time as her father, Dr. Leary, by the court without
a jury (trial by jury having been waived) and found guilty on Count 3 of the indictment
but not guilty on Counts 1 and 2. Imposition of sentence was suspended and she was
placed on probation during the remainder of her minority, without supervision, under
the provisions of the Youth Corrections Act, 18 U.S.C. § 5010(a). Her appeal was
then dismissed on her own motion.
The facts of this case are relatively uncomplicated.
Dr. Leary left New York on December 20, 1965 by automobile, accompanied by his two
children, Susan, age 18, and John, age 16, and two other persons. Their destination
was Yucatan, Mexico, and the alleged purpose of the trip was a Christmas vacation
for the Leary children and to provide Dr. Leary the opportunity to write a book
and to prepare for a summer session to be conducted with a research group at his
home in Millbrook, New York. On December 22, 1965, Dr. Leary and the four passengers
drove across the international boundary at Laredo, Texas, into the Republic of Mexico,
stopped at the Mexican immigration station for several minutes, and turned back
toward the United States. At approximately 6:45 p.m., they arrived at the secondary
inspection area, Laredo International Bridge, Laredo, Texas. Dr. Leary, the driver
of the vehicle, told a U.S. Customs official that they had driven across the boundary
into Mexico within the prior hour, that they had been unable to secure tourist permits
and had been told by Mexican immigration officials to return the following morning
at 8:00 a.m. at which time the necessary Mexican permits would be given to them.
The U.S. inspector asked the group if they had anything to declare [*856]
from Mexico and was told that they had not. After the occupants alighted from the
vehicle, the U.S. inspector observed some vegetable material and a seed on the floor
of the automobile which appeared to him to be marihuana. Thus the five travelers
were arrested. A search of the baggage, the vehicle and of the individuals was made.
Sweepings from the car floor and glove compartment were later proved to be marihuana.
[Footnote 6] While Dr. Leary was being searched, he stated that he had never used
marihuana. A woman Customs inspector performed a personal search of the two female
travelers, which resulted in the finding of a small metal container on the person
of Susan Leary after she had disrobed. Within the container were three partially
smoked marihuana cigarettes, a small quantity of semi-refined marihuana and capsules
of detroamphetamine sulfate (said to be a nonprohibitive narcotic). Demand was made
of Dr. Leary for the required Treasury Department transferee form. He stated that
he had no such form. Susan Leary, in response to the same demand, refused to make
any statement. Dr. Leary admitted to a U.S. Customs agent that the metal box taken
from his daughter, Susan, containing the marihuana, was his property. He further
stated in the presence of two Government agents that he knew more about narcotics
and marihuana than either of them.
Dr. Leary testified on his own behalf. He admitted that the seized marihuana had
been obtained by him in New York and had been in his possession continuously on
his trip from New York to Laredo; that he had neither obtained an order form nor
paid a transfer tax for the marihuana as required by the statute. He said that he
asked the four people in his group to get rid of the marihuana; that just prior
to arriving at the U.S. Customs Station, while crossing the International Bridge,
he asked if the marihuana had been disposed of and was told by Susan, his daughter,
that it had not been and it was in her possession. He further admitted that while
on the trip from New York to Mexico at an overnight stop in New Orleans, Louisiana,
he smoked marihuana to relieve a low spiritual state; that this incident was equivalent
to an hour of silent meditation from which he derived spiritual benefit. Dr. Leary
testified that he was familiar with the laws of the United States relative to marihuana
and was aware that his actions were contrary to such laws. [Footnote 7] In his testimony
he attempted to justify use of this drug which he said was for religious and scientific
purposes.
Dr. Leary has an impressive academic background. He testified that he received a
Ph. D. degree in Clinical Psychology from the University of California. During the
years from 1944 to 1960 he wrote and published several publications relative to
the use of psychedelic drugs in the treatment of the mentally ill, including thirteen
scientific articles and two books. In 1950 he helped found the Kaiser Psychiatric
Clinic in Oakland, California. During the next eight years he received nearly one-half
million dollars in federal grants at the Kaiser Clinic for research work on mental
illness. He published four diagnostic tests relative to mental illness which have
been used in diagnosing and treating mental patients in over 750 clinics and hospitals
in the United States and which have been translated into several foreign languages.
He served on the University of California medical faculty from 1953 to 1956.
[*857] In 1959 he joined the Harvard University faculty.
In 1960, while visiting Mexico, he testified that he had "the most intense
religious experience" he had ever had in his life as the result of having eaten
a number of the "Sacred Mushrooms" of Mexico. The incident changed his
life. Since that time he has written five books and thirty-eight articles pertaining
to religious and scientific use of psychedelic drugs, and he has devoted his life
to attempting to understand the religious experience and how it can be applied to
help others. He said that he formed a religious research group after returning to
Harvard University, and with the help of Aldous Huxley, he experimented with certain
psychedelic drugs. In 1962 he studied Hinduism and after a year became a member
of a Hindu sect. In 1963 he left Harvard, performed further experimental work in
Mexico, and later established a center and workshop for religious and scientific
research in Millbrook, New York, which center is now his home. The building also
serves as a place for religious meditation and spiritual retreat. Rooms in the house
contain shrines devoted to Hindu, Buddhist and Christian ways of finding God, as
well as religious pictures and statues. Dr. Leary has traveled extensively through
Asia in pursuit of his religious endeavors and has studied Buddhism and Hinduism
with several religious teachers and monks. While studying in India with Sri Asoke
Fukir, a religious leader, Dr. Leary participated in religious rituals in which
marihuana was used. He was converted to Hinduism, and is now a member of the Brahmakrishna
sect in Massachusetts.
Dr. Leary further testified that he first used marihuana in August or September
1964. Marihuana enables him to attain what he describes as the third level of consciousness.
Other psychedelic drugs take a person to a higher level. According to the Hindu
religion, there are thousands of roads to illumination to the god within a person.
Different sects specialize in different aids. The Hindu sect in India of which he
became a member uses marihuana for religious illumination and meditation. He ordinarily
uses marihuana less than once a week and then only for religious purposes. He draws
no distinction between his religious beliefs and his scientific experimentation.
If he could not use marihuana it would not affect his religious beliefs but he would
consider it a violation of those beliefs and practices if he were denied its use.
Dr. Leary said he acquired the marihuana in New York which led to his conviction.
He testified that the reason he did not declare the marihuana at the U.S. Customs
Office at Laredo was his apprehension of being subjected to investigation or arrest.
He never complied with the Treasury Department regulations relative to marihuana
because he knew that he could not obtain permission for its use inasmuch as his
research is not performed in a laboratory and is of a religious nature; that the
law makes no provision for the use of marihuana under such circumstances; that if
he had attempted to register or to pay the required tax, the marihuana would have
been taken from him and he would have been subjected to legal action. He had applied
for and been refused permits for other chemicals such as mescaline, peyote and LSD.
He believes he has both a moral and a political right to possess marihuana.
Fred Swain (Sri Kalidas, in religion) testified on behalf of appellant. He is an
American Hindu Sanyasa (monk), a renunciant, living in a monastery, who joined the
religious order of which appellant is a member in 1948. He met Dr. Leary in 1962
and later participated in psychedelic experiments with him at Harvard University.
While traveling in India he was often in the company of Dr. Leary; he smoked marihuana
with him in the Rishikesh, a city of holy men, along the banks of the Ganges River,
in Hindu religious services. He said that marihuana plays a very important part
in the rituals of the Hindu sect conducted by Sri Asoke Fukir in India. [*858]
The Brahmakrishna sect in the United States of which he and Dr. Leary are members
is a highly established authority sect in India, recognized throughout India by
all Hindus. He admitted that he was partially able to achieve and practice his religious
beliefs in the Hindu sect without the use of marihuana. He does not use marihuana
in the United States because it is unavailable; he is forced to use other psychedelic
drugs in conjunction with meditation and prayer.
Dr. Ralph Metzner, a psychopharmacologist who received his Master's degree from
Oxford and Ph. D. in Psychology from Harvard, testified on behalf of appellant.
He co-authored with Dr. Leary the book "Psychedelic Experience" as well
as several articles including "Reducing Criminal Behavior" by the use
of the psychedelic drug psilocybin (the extract of the sacred mushroom). The word
"psychedelic" refers to a class of drugs, which includes LSD, mescaline,
marihuana, among others, whose primary effect is to expand consciousness, heighten
intellectual activity and sensory awareness. In India he was initiated into the
same Hindu sect of which Dr. Leary is a member. He participated with Dr. Leary in
several scientific experiments under the auspices of Harvard University. He also
assisted Dr. Leary in conducting seminars, giving lectures, writing books and giving
training courses in consciousness expansion without drugs. He corroborated Dr. Leary's
testimony concerning the religious nature and character of the Millbrook center
in New York. [Footnote 8]
Appellant's points of error are stated substantially as follows:
1 (A). The District Court erred in refusing to instruct the jury to acquit appellant
if it found his religious claims to be honest and in good faith.
1 (B). In light of the federal exemption from restrictive legislation granted to
religious users of peyote and the Government's inability to establish that marihuana
is more harmful than peyote, the denial of a religious exemption from the marihuana
legislation is an invidious religious discrimination in violation of the First and
Fifth Amendments.
2. Denial of appellant's motions for a bill of particulars specifying the location,
direction and time of alleged transportation was reversible error; alternatively,
the indictment was fatally insufficient.
3. The District Court's instructions on the meaning of the statutory presumptions
(a) effectively directing conviction and imposed upon appellant the burden of proving
his innocence; (b) were misleading and authorized convictions if appellant did not
prove to the jury's "satisfaction" that his possession was "lawful"
and "legitimate"; and (c) failed to direct acquittal if the jury believed
that appellant lacked knowledge of illegal importation -- all in violation of the
Fifth and Sixth Amendments and amounting to "plain error" under Rule 52(b),
Fed.R.Crim.P.
4. The Government's closing argument to the jury far exceeded the bounds of fair
comment.
5. The Government's failure to disclose that one of the major witnesses was under
two federal indictments at the time of the trial denied appellant a fair trial.
6. The presumption under 21 U.S.C. § 176a that marihuana is illegally imported and
that a possessor has knowledge of illegal importation is arbitrary and irrational
in view of the high proportion of marihuana in the United States which is domestically
grown.
7. The statutory requirement of a written order form (26 U.S.C. § 4742) and the
imposition of a transfer tax (26 U.S.C. § 4741(a)) violate appellant's [*859]
constitutional privilege against compulsory self-incrimination and render invalid
the conviction under Count 3.
8. The District Court erred in refusing to instruct the jury that they could consider
as a defense to Count 2, the defendant's honest and sincere belief that he had a
right to engage in his activities because of his religious, scientific, or parental
beliefs, and that these beliefs could negate the specific intent necessary for conviction
under the statute.
Religious freedom, guaranteed by the Constitution, must be weighed with the public
interest and the broad power to legislate vested in Congress by the Constitution.
[Footnote 9] Thus the First Amendment "embraces two concepts, -- freedom to
believe and freedom to act. The first is absolute but, in the nature of things,
the second cannot be." Cantwell v. State of Connecticut, 310 U.S.
296, at 303, 304, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940). The freedom to act
is conditional and relative and Congress may prescribe and enforce certain conditions
to control conduct which may be contrary to a person's religious beliefs in the
interest of the public welfare and protection of society. See the Supreme Court's
decisions in the anti-bigamy cases, Reynolds v. United States, 98 U.S.
145, 25 L. Ed. 244 (1878); Davis v. Beason, 133 U.S. 333, 10 S. Ct. 299,
33 L. Ed. 637 (1890), and the Sunday-closing-law cases, McGowan v. State of Maryland,
366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Two Guys From Harrison-Allentown
v. McGinley, 366 U.S. 582, 81 S. Ct. 1135, 6 L. Ed. 2d 551 (1961); Braunfeld
v. Brown, 366 U.S. 599, 81 S. Ct. 1144, 6 L. Ed. 2d 563 (1961); Gallagher v.
Crown Kosher Super Mkt. of Mass., 366 U.S. 617, 81 S. Ct. 1122,
6 L. Ed. 2d 536 (1961).
In Reynolds v. United States, supra, 98 U.S. at 166, the Supreme Court,
in denying Mormons an exemption from anti-bigamy laws, said, "Laws are made
for the government of actions, and while they cannot interfere with mere religious
belief and opinions, they may with practices." The Court recognized that religious
practice could not be accepted as justification for an overt criminal act; that
to permit a man to excuse his unlawful practices because of his religious belief
"would be to make the professed doctrines of religious belief superior to the
law of the land, and in effect to permit every citizen to become a law unto himself.
Government could exist only in name under such circumstances." (98 U.S. at
167.)
In Braunfeld v. Brown, supra, which upheld the constitutional validity
of a Pennsylvania Sunday-closing statute, the Court reaffirmed the principles of
Cantwell v. State of Connecticut, supra, and Reynolds v. United States,
supra, with its statement that "the freedom to act, even when the action is
in accord with one's religious convictions, is not totally free from legislative
restrictions" (366 U.S. at 603, 81 S. Ct. at 1146), and that "legislative
power over mere opinion is forbidden but it may reach people's actions when they
are found to be in violation of important social duties or subversive of good order,
even when the actions are demanded by one's religion." (366 U.S. at 603, 604,
81 S. Ct. at 1146). [Footnote 10]
Congress has seen fit to legislate, with appropriate criminal sanctions, concerning
the possession, importation, concealment, and taxation of marihuana. The severity
of the penalties provided by statute for the violation of these laws provides an
insight into the grave concern of Congress to control the use of this drug. The
testimony of appellant's [*860] witnesses relative to his sincerity
of purpose in his religious and scientific endeavors is not pertinent here; nor
is the evidence about the so-called harmless nature, the therapeutic value, and
the accepted use of marihuana for religious rituals by certain sects in India.
Our concern is with the laws of the United States, which appellant admittedly, knowingly
and purposely violated because they conflicted with his personal religious beliefs
and practices. Appellant has attempted to demonstrate that the experience he finds
through the use of marihuana is the essence of his religion. We do not inquire into
the truth or verity of appellant's religious beliefs -- to do so would be violative
of the Free Exercise Clause of the First Amendment. United States v. Ballard,
322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944). But appellant's religious creed
and the sincerity of his beliefs are not at issue here. The district judge properly
refused an instruction to the jury that they should acquit the defendant if they
found his religious practices were in good faith.
Appellant's reliance on Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790,
10 L. Ed. 2d 965 (1963), for authority that the constitutionally guaranteed right
of free religious exercise imposes on the Government the burden of showing a compelling
interest in its abridgement, is misplaced and inapposite on the facts. In Sherbert
the Supreme Court held that the disqualification of a member of the Seventh Day
Adventist Church for unemployment benefits under the South Carolina Unemployment
Compensation Act, because of her refusal to work on Saturday, imposed a burden on
the free exercise of her religion. The Court in arriving at its conclusion considered
whether there was "some compelling state interest" in the statute which
justified "the substantial infringement of appellant's First Amendment right"
(374 U.S. at 406, 83 S. Ct. at 1795), and found no such state interest.
Here the paramount Government interest in the enforcement of the laws relative to
marihuana is the protection of society. We cannot reasonably equate deliberate violation
of federal marihuana laws with the refusal of an individual to work on her Sabbath
Day and nevertheless claim compensation benefits. The Court in Sherbert,
while upholding the Free Exercise Clause under the facts of that case, recognized
that it had rejected challenges under the same clause "to governmental regulation
of certain overt acts prompted by religious beliefs or principles, for 'even when
the action is in accord with one's religious convictions, [it] is not totally free
from legislative restrictions.' Braunfeld v. Brown, 366 U.S. 599, 603,
81 S. Ct. 1144, 1146, 6 L. Ed. 2d 563. The conduct or actions so regulated have
invariably posed some substantial threat to public safety, peace or order. See,
e.g., Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244; Jacobson v.
Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643; Prince v. [Commonwealth
of] Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645; Cleveland v.
United States, 329 U.S. 14, 67 S. Ct. 13, 91 L. Ed. 12. "
(374 U.S. at 403, 83 S. Ct. at 1793.)
The unlawful transportation, possession and use of marihuana falls within the category
of cases cited in Sherbert which require governmental regulation. "Crime
is not the less odious because sanctioned by what any particular sect may designate
as 'religion.'" Davis v. Beason, 133 U.S. 333, 345, 10 S. Ct. 299,
301, 33 L. Ed. 637 (1890).
There is no evidence in this case that the use of marihuana is a formal requisite
of the practice of Hinduism, the religion which Dr. Leary professes. At most, the
evidence shows that it is considered by some as being an aid to attain consciousness
expansion by which an individual can more easily meditate or commune with his god.
Even as such an aid, it is not used by Hindus universally.
Congress has made it a crime to traffic in marihuana and it was not incumbent upon
the Government to produce evidence to controvert the testimony of witnesses on the
controversial question whether use of the drug is relatively [*861]
harmless. Thus the question is whether the conduct or action so regulated and prohibited
under severe criminal penalties by Congress (i.e., trafficking in marihuana) has
posed "some substantial threat to public safety, peace or order," Sherbert,
supra, 374 U.S. at 403, 83 S. Ct. at 1793. Congress has demonstrated beyond doubt
that it believes marihuana is an evil in American society and a serious threat to
its people. It would be difficult to imagine the harm which would result if the
criminal statutes against marihuana were nullified as to those who claim the right
to possess and traffic in this drug for religious purposes. For all practical purposes
the anti-marihuana laws would be meaningless, and enforcement impossible. The danger
is too great, especially to the youth of the nation, at a time when psychedelic
experience, "turn on," is the "in" thing to so many, for this
court to yield to the argument that the use of marihuana for so-called religious
purposes should be permitted under the Free Exercise Clause. We will not, therefore,
subscribe to the dangerous doctrine that the free exercise of religion accords an
unlimited freedom to violate the laws of the land relative to marihuana.
Appellant argues that the religious use of peyote, a psychedelic hallucinogen, by
Indians who are members of the Native American Church has been constitutionally
protected by the Supreme Court of California in
People v. Woody, 61 Cal.2d 716, 40 Cal.Rptr. 69, 394 P.2d 813 (1964).
He refers also to the California Supreme Court's decision in In re Grady, 61 Cal.2d
887, 39 Cal.Rptr. 912, 394 P.2d 728 (1964), decided the same day as Woody, in which
conviction of a "self-styled peyote preacher" for unlawful possession
of narcotics, namely, peyote, was annulled and a new trial granted in order that
the defendant might have an opportunity to prove that his use of peyote was in connection
with an honest and bona fide practice of a religious belief. By parity of reasoning
he contends that marihuana, another psychedelic drug, is entitled to the same constitutional
protection as peyote. With due deference to the California Supreme Court, we are
of course not bound by its decisions. However, we note an essential difference between
Woody
and the instant matter in that peyote in the
Woody case played "a central role in the ceremony and
practice of the Native American Church, a religious organization of Indians,"
and that the "ceremony marked by the sacramental use of peyote, composes the
cornerstone of the peyote religion." Grady was apparently the spiritual leader
of a group of individuals and provided peyote for the group which he said was for
religious purposes.
We are not impressed that the California cases are directly in point, and we will
not apply them insofar as the circumstances of this case are concerned. [Footnote
11]
In the early case of State v. Big Sheep, 75 Mont. 219, 243 P. 1067 (1926),
the Montana Supreme Court held, "It was clearly within the power of the Legislature
to determine whether the practice of using peyote is inconsistent with the good
order, peace, and safety of the state," against the contention that the defendant's
religious freedom was infringed.
In State v. Bullard, 267 N.C. 599, 148 S.E.2d 565, 569 (1966), the North
Carolina Supreme Court held, "The defendant may believe what he will as to
peyote and marijuana and he may conceive that one is necessary and the other is
advisable in connection with his religion. But [*862] it is not
a violation of his constitutional rights to forbid him, in the guise of his religion,
to possess a drug which will produce hallucinatory symptoms similar to those produced
in cases of schizophrenia, dementia praecox, or paranoia, and his position cannot
be sustained here -- in law nor in morals."
The District Court denied appellant's request for a bill of particulars which sought
information to ascertain whether it was the Government's intention to rely on his
possession of marihuana prior to entry into Mexico or following importation into
the United States from Mexico, and whether it was the Government's contention that
he was guilty of the overt act of smuggling. The smuggling count was withdrawn from
the jury by the court so we turn our attention to Count 2, which charges appellant
with transportation and concealment of marihuana after knowledge of importation,
and Count 3, which charges transportation and concealment without having paid the
necessary transfer tax. Appellant stated that the information requested was necessary
to prepare an adequate defense and to avoid the possibility of double jeopardy.
Appellant further contended that depending on the theory of the prosecution, different
legal defenses would arise, and the requested information was necessary to decide
whether he should exercise his right to testify. From a reading of Counts 2 and
3 we conclude that they are not duplicitous. Each count states the date and the
place of the offense and adequately apprises appellant of the nature of the offense
charged. Granting or denial of a bill of particulars is a matter within the sound
discretion of the trial judge, and will not be interfered with on appeal unless
there is abuse or prejudice. Joseph v. United States, 5 Cir., 1965, 343
F.2d 755; Robertson v. United States, 5 Cir., 1959, 263 F.2d 872; Johnson
v. United States, 5 Cir., 1953, 207 F.2d 314. There was no such abuse or
prejudice here.
Appellant contends, alternatively, that the indictment in this case is fatally insufficient.
In this Circuit's decisions in Thomas v. United States, 314 F.2d 936 (1963),
and Marquez-Anaya v. United States, 319 F.2d 610 (1963), the defendants
were charged with smuggling marihuana and with transportation of the drug without
having paid the necessary tax thereon. Proof was adduced by the Government that
the marihuana had been obtained by the defendants in Mexico. The court held in Thomas,
and reiterated in Marquez-Anaya, that an indictment charging transportation
and concealment of marihuana without having paid the transfer tax was necessarily
predicated upon the defendants having obtained the drug within the United States,
and because of the Government's proof to the contrary, that is, that the marihuana
had been smuggled by the defendants into the United States from Mexico, the conviction
under the tax count could not stand. However, the instant matter is clearly distinguishable
from our holdings in Thomas and Marquez-Anaya. Here, as the case
developed, the Government's evidence (through testimony of United States Customs
Agent Hatch of statements made to him by the accused) showed that the marihuana
was acquired by defendant in the United States. Dr. Leary's own testimony later
in the trial was to the same effect and the district judge consequently withdrew
the smuggling count from the jury's consideration. The defendant admitted all of
the elements of Count 2 except knowledge of importation. The Government, supported
by appellant's own testimony, proved the elements of transportation and concealment
of the drug under Count 2, although under the statute it was incumbent on it merely
to show possession in order to authorize conviction unless the defendant explained
his possession to the satisfaction of the jury. Appellant admitted transporting
the marihuana from New York and crossing and recrossing the international border
between the United States and Mexico with the marihuana in his possession. He made
no effort to explain his possession of the illegal drug to the jury beyond his
[*863] defense that use of marihuana was a sacramental aid in the practice
of his religion -- an explanation we have already pointed out is insufficient and
immaterial. In addition to the facts proved by the Government, conviction on Count
3 was also justified by appellant's own testimony -- his candid admission that he
had never paid the required tax as a transferee. The counts were, therefore, neither
inconsistent within themselves nor with each other.
There is likewise no merit to appellant's argument that the court's instructions
implied that possession, not satisfactorily explained, compelled conviction. The
court assiduously avoided such an instruction. At the outset the trial judge explained
the presumption of innocence which attaches to every defendant brought to trial
in a criminal case. He instructed the jury that the Government must prove the accused's
guilt beyond a reasonable doubt and defined that term. The district judge quoted
the exact provision of the statutory inference in 21 U.S.C. § 176a, i.e., "such
possession shall be deemed sufficient evidence as to authorize conviction unless
the defendant explains his possession to the satisfaction of the jury," (emphasis
added), and explained its meaning in the language of the statute by stating: "That
means, unless he proves to your satisfaction that it was a lawful and a legitimate
possession of the marihuana he had." The court clearly and adequately defined
the terms "unlawfully," "knowingly," and "with intent to
defraud" and twice repeated the necessity of the jury finding such elements
beyond a reasonable doubt to warrant conviction. The jury was advised of its affirmative
duty to acquit in the absence of such findings. We do not construe the court's instructions
as requiring conviction on evidence of possession of marihuana, but only as authorizing
it. [Footnote 12] Appellant's argument [*864] is, therefore, untenable,
especially since he did in fact testify that he knew that his actions were contrary
to the laws of the United States.
Appellant contends that the closing arguments to the jury by Government counsel
far exceeded the bounds of fair comment, invited prejudice based on educational,
economic and regional differences between the accused and the jurors, expressed
strong hostility toward him, asserted that he was irresponsible regarding his child's
welfare, attacked him for offering a religious defense, bolstered a witness' credibility
and generally inflamed the jury's emotions, amounting to plain and reversible error.
Pertinent parts of the arguments to which objections were made are set forth more
fully in the margin below, [Footnote 13] but they refer principally [*865]
to the prosecutor's statements that appellant was "irresponsible" (especially
with reference to the welfare of his children), his defense was a "colossal
hoax," "just hogwash," to Government counsel's statement that "I
cannot remember a case I have felt more strongly about than I have this case,"
and his further statement that "I don't mean to shout, for shouting's sake,
but I feel so strongly about this case and his acts that I can't help myself."
The record discloses that no objection to the remarks of the of the prosecution
was made by the several defense counsel either during or after the argument. The
issue was, therefore, waived at the time of trial by the defense. See Fogarty v.
United States, 5 Cir., 1959, 263 F.2d 201, cert. den. 360 U.S.
919, 79 S. Ct. 1437, 3 L. Ed. 2d 1534; Van Nattan v. United States, 10
Cir., 1966, 357 F.2d 161; United States v. Sawyer, 4 Cir., 1965, 347 F.2d
372; United States v. Aadal, 2 Cir., 1966, 368 F.2d 962.
Judging the case from the viewpoint that most of the evidence which incriminated
the accused was admitted and confirmed by him, some resort to emphatic and forceful
expression by Government counsel was to be expected. Though the court declined to
give the specific charge to the jury requested by appellant that it should acquit
appellant if it found his religious claims to be honest and in good faith, it nevertheless
permitted Dr. Leary to present his claims fully with reference to his religious
and scientific beliefs and to support them with corroborating witnesses. The sincerity
of the accused was undoubtedly at issue, and especially his credibility with reference
to the possession of marihuana while the defendant was crossing the international
[*866] border at Laredo. We discern no personal hostility by the
prosecution toward the defendant. Though Government counsel's summation of the case
at times was strong, a fair reading of the entire argument, taken with the strong
evidence of the defendant's guilt largely shown by his own admissions, does not
convince us that there was plain error or abuse which affected defendant's substantial
right to a fair trial or would justify reversal. Fed.R.Crim.P., Rule 52. That the
defendant's teenage daughter was exposed to a home where the free use of marihuana
by the family and inhabitants of the household (said to be for religious and scientific
purposes) was regular, even routine -- but nevertheless in violation of the laws
of the country -- also permitted the prosecutor more leeway in final argument than
might be expected under ordinary circumstances, and we are unable to say that zeal
overcame fairness. [Footnote 14]
Defense counsel attempted to impeach a Government witness, Cutler, who testified
on direct examination that he had attended a social gathering at Greenwich Village;
that Dr. Leary had smoked marihuana at this party, which event occurred prior to
the time which Dr. Leary admitted first using the drug. On cross-examination, counsel
for the defense asked the witness, "How many [*867] times
have you been picked up for smoking marihuana?" The question was an attempt
to establish a criminal record of the witness and admittedly was asked to impeach
his credibility. [Footnote 15] The court properly sustained Government counsel's
objection. Generally, only prior convictions of felonies or of misdemeanors involving
moral turpitude are admissible in evidence for the purpose of impeachment of the
credibility of a witness. Roberson v. United States, 5 Cir., 1957, 249
F.2d 737; Ramirez v. United States, 9 Cir., 1961, 294 F.2d 277; Homan v.
United States, 8 Cir., 1960, 279 F.2d 767, cert. den. 364 U.S.
866, 81 S. Ct. 110, 5 L. Ed. 2d 88 (1960); Beasley v. United States, 1954,
94 U.S.App.D.C. 406, 218 F.2d 366, cert. den. 349 U.S. 907, 75 S. Ct. 584,
99 L. Ed. 1243 (1955); United States v. Bell, 6 Cir., 1965, 351 F.2d 868.
The trial court has wide discretion to limit cross-examination, Roberson v. United
States, supra, and the exercise of such discretion should not be interfered
with in the absence of a showing of prejudice to the defendant. Alderman v. United
States, 5 Cir., 1929, 31 F.2d 499; Foster v. United States, 10
Cir., 1960, 282 F.2d 222. We ascribe no prejudice to the court's ruling. The jury
was free to accept or reject the witness' testimony on this peripheral issue and
was so instructed by the court. Cutler was not a major witness, though he was used
by the prosecution on rebuttal to impeach Dr. Leary's testimony as to when he first
began using marihuana. It is most unlikely that Cutler's statement had any substantial
effect on the verdict in view of the defendant's own [*868] testimony
that he frequently used marihuana, knowing it to be illegal, even if such use was
purportedly for scientific or religious purposes.
Now, for the first time, on appeal, appellant states that Cutler was, at the time
of trial when he testified, under indictment in the United States Court, Southern
District of California, for smuggling marihuana into the United States from Mexico,
and for bail jumping in connection with this charge; that this fact was known to
the Government and not disclosed to Dr. Leary's counsel. The Government's answer
is that Cutler had no prior convictions, had not been tried as yet on the California
federal cases, and that if defense counsel had asked for this information it would
have been given. We observe that the pending charges against Cutler are in no way
connected with the present case, and that no attempt was made by counsel at the
trial to go into any relationship between the witness and the prosecution which
might have reflected on his credibility, except to show that the Government paid
his expenses to come to Laredo to testify. There was obviously no suppression by
the Government of Cutler's criminal record for there were no convictions against
him when he testified, nor did the pending cases in California relate in any way
to the present prosecution. The contention is without merit.
Appellant contends that the presumption under 21 U.S.C. § 176a, that marihuana is
illegally imported and that a possessor has knowledge of illegal importation, is
arbitrary and irrational in view of his contention that a high proportion of marihuana
in the United States is domestically grown. To prove his point he has compiled certain
statistics in published annual reports of the Bureau of Narcotics, 1957-1964, inclusive.
This proof was not offered at the trial of the case and we assume we are asked to
take judicial cognizance of information found in these public reports. By process
of reasoning, appellant's counsel states that of all the marihuana in the United
States well over 99 per cent has been domestically grown. Of course, the Bureau
of Narcotics reports make no such statement and we are not impressed that it is
correct. Obviously the information found in appellant's brief is incomplete for
undoubtedly much marihuana from outside the United States does reach this country.
Appellant does not purport to tell us what this amount is or to estimate it beyond
his own rationalization of certain statistics he has assembled from published reports.
No reference is made to seizures by state authorities nor is any provision suggested
for the amount of marihuana which comes into the United States undetected. In other
published reports which are equally available to the Court as are the Bureau of
Narcotics annual reports relied on by appellant, United States Commissioner of Narcotics,
Henry L. Giordano, testified before the House of Representatives Subcommittee of
the Committee on Appropriations, on February 8, 1967, that "most of our marihuana
comes from Mexico." [Footnote 16] This official statement, which is in direct
contradiction to the conclusions in exhibits prepared by appellant's counsel, shows
rather well that appellant's information, submitted for the first time on brief,
and [*869] not the subject of proof contradictorily at trial, is
neither complete nor convincing.
In Caudillo v. United States, 9 Cir., 1958, 253 F.2d 513, the Ninth Circuit
upheld the constitutionality of the presumption in 21 U.S.C. § 176a, that marihuana
is illegally imported and the possessor has knowledge of importation. [Footnote
17] The court noted the necessity under the requirements of Tot v. United States,
319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943), of rational connection between
the facts proved and the ultimate fact presumed, and said:
"Though there might be differences of opinion, it can reasonably be argued
that the facts of marihuana importation are so well-known, particularly to marihuana
users, that there is a 'rational connection between the fact proved and the ultimate
fact presumed.'"
The Ninth Circuit in Caudillo also pointed out, "The statutory language in
question has long existed in the narcotic laws" and was upheld by the Supreme
Court in Yee Hem v. United States, 268 U.S. 178, 45 S. Ct. 470, 69 L. Ed.
904 (1925), in reference to opium. The court said that as to marihuana, "If
experience is the test of the validity of an inference, then the legislatively created
inference in this case is well supported." 253 F.2d at 517.
We believe, as was expressed so well in United States v. Gainey, 380 U.S.
63, 67, 85 S. Ct. 754, 757, 13 L. Ed. 2d 658 (1965):
"The process of making the determination of rationality is, by its nature,
highly empirical, and in matters not within specialized judicial competence or completely
commonplace, significant weight should be accorded the capacity of Congress to amass
the stuff of actual experience and cull conclusions from it."
That being true, and with the benefit of the legislative history to which we have
already referred, it is clear that the experience of Congress shows that it is gravely
concerned with the smuggling, transportation, concealment and possession of imported
marihuana. When Congress passed the Marihuana Tax Act of 1937 from which are derived
certain provisions of the United States Code involved here, i.e., 26 U.S.C. §§ 4741,
4742, and 4744, extensive Congressional hearings preceded the passage of the Act.
They are referred to in appellant's brief as Hearings before the Committee on Ways
and Means, 75th Cong., 1st Sess., H.R. 6385 (1937). The report of the proceedings
shows unmistakably that Congress intended "to discourage the current and widespread
undesirable use of marihuana," and that the development of a scheme of taxation
would "render virtually impossible the acquisition of marihuana by persons
who would put it to illicit uses." Witnesses referred to the "injurious
effect it has upon the public health and morals of this country," especially
for younger people who are attracted to it. The then Commissioner of Narcotics,
Mr. Anslinger, said, "This drug is entirely the monster Hyde, the harmful effect
of which cannot be measured." He pointed out that all of the states had passed
laws against marihuana. Numerous expert witnesses referred to the dangerous nature
of the drug, its effect on those who use it, to criminal episodes of terrible character
which accompanied its use. The evidence was voluminous and convincing that marihuana
is a serious evil to society. Thus did Congress wisely and prudently enact this
law and clearly meet the "compelling state interest" test imposed in Sherbert
v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963). [Footnote
18]
Appellant contends that 26 U.S.C. § 4741(a), which imposes a tax on all transfers
of marihuana, and 26 U.S.C. § 4742, which requires that such transfers be accompanied
by written order forms issued by the Secretary of the Treasury, are unconstitutional
in that they violate the Fifth Amendment privilege against compulsory self-incrimination.
He argues, therefore, that his conviction under Count 3, which charged that defendant
transported and concealed marihuana, being a transferee required to pay a transfer
tax, in violation of 26 U.S.C. § 4744(a), is invalid. This Circuit has had occasion
to rule on this precise point in Haynes v. United States, 5 Cir., 1964,
339 F.2d 30, cert. den. 380 U.S. 924, 85 S. Ct. 926, 13 L. Ed. 2d 809 (1965),
in which the court found no merit to the contention "that the appellant was
required to incriminate himself by registration and payment of taxes and, hence,
that the statutes under which he was convicted are unconstitutional * * *."
[Footnote 19]
We find, without merit, appellant's final point of error that the District Court
erred in refusing to instruct the jury that they could consider as a defense to
Count 2 defendant's honest and sincere belief that he had a right to possess marihuana
in violation of the law because of his religious and scientific beliefs. Appellant
argues that the jury could have found, if so instructed by the court, that this
belief negated the specific intent necessary under 21 U.S.C. § 176a. This point
is in effect substantially similar to those contentions of appellant which we have
already considered and rejected relating to the defense of religious claims that
appellant was honest and in good faith in his use of marihuana, and to the contention
that the presumption in Section 176a that possession of marihuana is sufficient
evidence to authorize conviction unless explained by the defendant to the satisfaction
of the jury is unconstitutional.
Affirmed.