Minor v. United States, 396 U.S. 87 (1969)
Minor v. United States
No. 189
Argued October 15, 1969
Decided December 8, 1969 *
396 U.S. 87
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Syllabus
Petitioner in No. 189 was convicted of selling heroin to an undercover agent not pursuant to a written order on an official form, in violation of § 2 of the Harrison Narcotics Act, 26 U.S.C. § 4705(a). In No. 271, petitioner was convicted of selling marihuana to an agent who did not have the official order form required by § 6 of the Marihuana Tax Act, 26 U.S.C. § 4742(a). The Court of Appeals affirmed both convictions over objections that the statutory obligation to sell only pursuant to an official order form violated petitioners’ Fifth Amendment privilege against self-incrimination.
Held:
1. With respect to he Marihuana Tax Act, the petitioner seller’s claim of violation of his privilege against self-incrimination is not substantial. Pp. 91-94.
(a) There is no real possibility that purchasers would comply with the order form requirement even if the seller insisted on selling only pursuant to the prescribed form, in view of the $100 per ounce tax on an unregistered transferee; the illegality under federal and state law, and the fact that the Fifth Amendment, as held in Leary v. United States, 395 U.S. 6, relieves unregistered buyers of any duty to pay the tax and secure the order form. P. 92.
(b) In Leary, supra, the statute purported to make all marihuana purchases legal from the buyer’s viewpoint at his option; but, to exercise that option and avoid the federal penalty, he was forced to incriminate himself under other laws. Here, compliance by selling is foreclosed as a viable option not because the seller might incriminate himself, but because he will seldom, if ever, encounter an unregistered purchaser willing and able to secure the order form. In such a case, "full and literal" compliance by the seller with § 472(a) means imply that he cannot sell at all. Pp. 92-93.
(c) That there is a small number of registered marihuana dealers does not change this result, since petitioner’s customer was not a registered dealer, and it is unlikely that even a registered dealer would present an order form to an unregistered seller. Pp. 93-94.
2. Petitioner seller’s self-incrimination claim under the Harrion Narcotics Act is likewise insubstantial. Pp. 94-98.
(a) Petitioner’s argument, which assumes that an order form would be forthcoming if he refused to sell without it, is unrealistic, there being no substantial possibility that a buyer could have secured an order form to obtain heroin, virtually all dealings in which are illicit. Pp. 96-97.
(b) Since petitioner’s customer was not a registered buyer, the alleged possibility of incrimination is purely hypothetical. P. 97.
(c) Even if petitioner’s customer were registered, the result would probably be the same, since it is unlikely that a registered dealer would enter the name of an unregistered seller on the order form and record what would surely be an illegal sale. Pp. 97-98.
No. 189, 398 F.2d 511, and No. 271, 407 F.2d 905, affirmed.