Turner v. United States, 396 U.S. 398 (1970)

Turner v. United States

No.190
Argued October 15, 1969
Decided January 20, 1970
396 U.S. 398

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus

Narcotics agents stopped a car in which petitioner was riding and found a package, which petitioner had thrown away, containing about 15 grams of a cocaine and sugar mixture, 5% of which was cocaine, and a package in the car weighing about 48 grams consisting of a total of 275 glassine bags containing a heroin mixture, 15.2% of which was heroin. Petitioner was indicted and convicted of four narcotics violations: (1) knowingly receiving, concealing, and facilitating the transportation and concealment of heroin knowing the heroin had been illegally imported into the United States, in violation of 21 U.S.C. § 174; (2) knowingly purchasing, possessing, dispensing, and distributing heroin not in or from the original stamped package, in violation of 26 U.S.C. § 4704(a); (3) same as the first offense with regard to the cocaine seized, and (4) same as the second offense with regard to the cocaine. At the trial, the Government presented evidence of the seizure of the package, but offered no evidence on the origin of the drugs, and petitioner did not testify. Section 174 provides that, when a

defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.

Section 4704(a) states that:

It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package, and the absence of appropriate tax-paid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection. . . .

With respect to the first and third offenses, the trial judge charged the jury, in accord with § 174, that it could infer from petitioner’s unexplained possession of the heroin and cocaine that petitioner knew the drugs had been illegally imported. With respect to the second and fourth offenses, the trial judge read to the jury the prima facie evidence provision of § 4704(a). In the Court of Appeals, petitioner argued that the judge’s instructions on the inferences that the jury might draw from unexplained possession of the drugs violated his privilege against self-incrimination by penalizing him for not testifying. The Court of Appeals rejected this claim and affirmed, finding that the inferences were permissible under prior decisions.

Held:

1. The trial court’s instructions on the inference that might be drawn under § 174 with respect to petitioner’s possession of heroin did not violate his right to be convicted only on a finding of guilt beyond a reasonable doubt, and did not place impermissible pressure on him to testify in his own defense. Pp. 405-418.

(a) Since it is abundantly clear that little, if any, heroin is made in this country, and that, therefore, virtually all heroin consumed in the United States is illegally imported, § 174 is valid insofar as it permits a jury to infer that heroin possessed here is a smuggled drug, whether judged by the "more likely than not" standard applied in Leary v. United States, 395 U.S. 6, or by the more exacting reasonable doubt standard. Pp. 408-416.

(b) While there is no proof that petitioner knew who smuggled his heroin or how the smuggling was done, he, like others who sell or distribute the drug, was undoubtedly aware of the "high probability" that the heroin in his possession originated in a foreign country. Pp. 416-418.

2. The presumption under § 174 will not support petitioner’s conviction with respect to the possession of cocaine, as the facts show that much more cocaine is lawfully produced in, than is smuggled into, this country, and that the amount of cocaine stolen from legal sources is sufficiently large to negate the inference that petitioner’s cocaine came from abroad or that he must have known that it did. Pp. 418-419.

3. The conviction under § 4704(a) with respect to heroin is affirmed. Pp. 419-422.

(a) The evidence that petitioner possessed the heroin packaged in 275 glassine bags without revenue stamps attached established that the heroin was in the process of being distributed, an act proscribed by the statute. P. 420.

(b) When a jury returns a guilty verdict on a count charging several acts in the conjunctive, as here, the verdict normally stands if evidence is sufficient with respect to any one of the acts charged. P. 420.

(c) The conviction can also be sustained on the basis of the inference in § 4704(a) of purchasing the heroin not in or from a stamped package, as there is no reasonable doubt that the possessor of heroin, who presumably purchased it, did not purchase it in or from an original stamped package in view of the fact that no lawfully manufactured or lawfully imported heroin is found in this country. Pp. 421-422.

4. Petitioner’s conviction with respect to cocaine based on the § 4704(a) inference is not based upon sufficient evidence. Pp. 422-424.

(a) Petitioner’s bare possession of a small quantity of a cocaine and sugar mixture does not establish that he was dispensing or distributing the drug. P. 423.

(b) The possibility that petitioner either stole the cocaine in or from a stamped package or obtained it from a stamped package in the possession of a thief is sufficiently real that a conviction cannot be rested solely upon the presumption. Pp. 423-424.

(c) To the extent that Casey v. United States, 276 U.S. 413, gives general approval to the § 4704(a) presumption, it is limited by this decision. P. 424.

404 F.2d 782, affirmed in part and reversed in part.