1950
US Court of Appeals
Eighth Circuit

. . . Armstrong entered a plea of guilty to an indictment charging him in the first count with smuggling marihuana into the United States with intent to defraud the United States, and in the second count with knowingly receiving, concealing, and transporting the marihuana after importation into the United States, each count charging a violation of section 545, Title 18 United States Code, 18 U.S.C.A. § 545, and in the third count with having unlawfully received the marihuana without paying the transfer tax required . . .. He received a sentence of 18 months imprisonment on each of the three counts of the indictment, the sentences on the first and second counts to run consecutively. .  .

. . . Armstrong . . . (claimed) that the sentences imposed upon him are void because not within the jurisdiction of the court. Petitioner did not allege or prove that he had complied with section 2255, Title 28 United States Code, 28 U.S.C.A. § 2255, and for that reason his petition for was dismissed.

Section 2255, Title 28 United States Code, 28 U.S.C.A. § 2255, provides that a prisoner in custody under sentence of a court of the United States, claiming the right to be released on the ground that the sentence was imposed in violation of law or that the sentencing court was without jurisdiction to impose the sentence, may move the sentencing court to vacate, set aside, or correct the sentence, and further: "An application for a writ of in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention." . . .

The judgment of the District Court was right and must be affirmed.

1950
US Supreme Court

1. The tax of $100 per ounce imposed . . . on transferors of marihuana who make transfers to unregistered transferees without the order form . .  and without payment by the transferees of the tax imposed . . . is a valid exercise of the taxing power of Congress, notwithstanding its collateral regulatory purpose and effect.

(a) A tax is not invalid merely because it regulates, discourages or deters the activities taxed; nor because the revenue obtained is negligible or the revenue purpose is secondary.

(b) A tax is not invalid merely because it affects activities which Congress might not otherwise regulate.

2. The tax levied . . . is not conditioned on the commission of a crime, and it may properly be treated as a civil rather than a criminal sanction. Pp. 45-46.

(a) That Congress provided civil procedure for collection indicates its intention that the levy be treated as civil in character. P. 45.

(b) The civil character of the tax of $100 per ounce imposed by § 2590 (a) (2) is not altered by its severity in relation to the tax of $1 per ounce levied by § 2590 (a) (1). Pp. 45-46.

(c) The imposition by § 2590 (b) of liability on transferors is reasonably adapted to secure payment of the tax by transferees or stop transfers to unregistered persons, as well as to provide an additional source from which the expense of unearthing clandestine transfers can be recovered. Pp. 45-46.

1951
US Court of Appeals

This case considered a number of points including:

The defendant urges that the trial court committed reversible error by allowing the United States Attorney in his opening statement and closing argument to mention intoxicating liquors, the harmful effects of improper use of narcotics, other narcotic cases, conspiracies and how the case developed, since such statements were "inflammatory and highly prejudicial." Defendant also argues that prejudicial references were made to defense counsel. Defendant's contentions are wholly lacking in merit. The very purpose of an opening statement is to inform the jury how the case developed, its background and what will be attempted to be proved.

1951
US Court of Appeals

Defendant appeals from a judgment entered upon a jury verdict finding him guilty of all the charges contained in three indictments, consolidated for trial, charging him with the acquisition and transfer of marihuana without having paid the tax thereon. . .

Defendant alleges the trial court erred in refusing to give an instruction to the jury with respect to the defense of entrapment. . . . .

Since the defendant neither took the stand nor offered any direct testimony on the subject of entrapment, and called as his only witnesses the U.S. Commissioner and a deputy U.S. Marshal merely to establish the date when he was released on bond, the only possible manner in which he could have produced testimony to go to the jury on the question of entrapment would be on cross-examination. We have carefully read the record and are unable to find any such evidence presented which would have required the trial court to submit this issue to the jury.

1951
US Supreme Court

1. Without a warrant for search or arrest, but with reason to believe that respondent had narcotics unlawfully concealed there, officers entered the hotel room of respondent's aunts, in their absence and in the absence of respondent, searched it, and seized narcotics claimed by respondent. The search and seizure were not incident to a valid arrest; and there were no exceptional circumstances to justify their being made without a warrant. Held : The seizure violated the Fourth Amendment; and, on respondent's motion, the narcotics so seized should have been excluded as evidence in his trial for violation of the narcotics laws. Pp. 49-54.

(a) That the evidence seized in these circumstances was not on respondent's premises, did not deprive him of standing to suppress it. Pp. 51-52.

(b) Nor is a different result required by the provision of 26 U. S. C. § 3116 that "no property rights shall exist" in such contraband goods. Pp. 52-54.

2. Since the evidence illegally seized was contraband, the respondent was not entitled to have it returned to him. P. 54.

In the District Court, respondent's motion to suppress evidence seized without a warrant was denied and he was convicted of violating the narcotics laws, 26 U. S. C. § 2553 (a) and 21 U. S. C. § 174. The Court of Appeals reversed. 88 U. S. App. D.C. 58, 187 F.2d 498. This Court granted certiorari. 340 U.S. 951. Affirmed, p. 54.

1951
US  Court of Appeals

The principal contention of the defendant is that the government failed to prove venue in the Northern District of Illinois. We are of the opinion that under the facts of this case the presumption of guilt from the defendant's failure to produce the order also covered the question of venue. The marihuana was in the defendant's possession in this District. It was found in his automobile which he parked in front of 343 East 47th Street, Chicago, Illinois. The defendant had driven the automobile to this location. His finger print was on the package. The fact as to where the defendant acquired the marihuana was a fact peculiarly within his knowledge. Counsel for the defendant agrees that the presumption of guilt provision of the Narcotics Act, 26 U.S.C.A. § 2553(a), is similar to the provision of the Marihuana Tax Act which we are here considering and that the two provisions should be similarly interpreted and applied. The provision in the Narcotics Act states in part: "* * * the absence of appropriate tax-paid stamps from any of the aforesaid drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession same may be found".

1952
US Supreme Court

While petitioner was at large on bail pending his trial in a federal court on federal narcotics charges, an old acquaintance and former employee, who, unknown to petitioner, was a federal "undercover agent" and had a radio transmitter concealed on his person, entered the customer's room of petitioner's laundry and engaged petitioner in a conversation. Self-incriminating statements, made by petitioner during this conversation and a later conversation on a sidewalk with the same "undercover agent," were listened to on a radio receiver outside the laundry by another federal agent, who testified concerning them, over petitioner's objection, at the trial in which petitioner was convicted. Held :

1. The conduct of the federal agents did not amount to such a search and seizure as is proscribed by the Fourth Amendment. Pp. 750-753.

(a) The undercover agent committed no trespass when he entered petitioner's place of business, and his subsequent conduct did not render the entry a trespass ab initio.

(b) The doctrine of trespass ab initio is applicable only as a rule of liability in civil actions, not where the right of the Government to make use of evidence in a criminal prosecution is involved.

(c) The contentions that the undercover man's entrance was a trespass because consent was obtained by fraud, and that the other agent was a trespasser because by means of the radio receiver outside the laundry he overheard what went on inside, must be rejected.

(d) Decisions relating to problems raised where tangible property is unlawfully seized are inapposite in the field of mechanical or electronic devices designed to overhear or intercept conversation, at least where access to the listening post was not obtained by illegal methods.

(e) Even if the Court were to overturn its ruling that wiretapping is outside the ban of the Fourth Amendment, Olmstead v. United States, 277 U.S. 438, petitioner would not be aided, since his case cannot be treated as one involving wiretapping.

2. The facts do not show a violation of § 605 of the Federal Communications Act, since there was no interference with any communications facility that petitioner possessed or was entitled to use, nor was petitioner sending messages to anyone or using a system of communications within the Act. .

3. The evidence should not have been excluded as a means of disciplining law enforcement officers. McNabb v. United States, 318 U.S. 332, distinguished.

1954
US Court of Appeals

Appellant's main contention is that in instructing the jury that, under the applicable statutes, the unexplained possession of narcotic drugs is sufficient evidence to authorize conviction, the trial court erred in instructing that actual, physical possession is not essential and that constructive possession is sufficient.
These instructions, however, were given only in connection with the charges of selling not in or from the original stamped package and facilitating concealment and sale. They were not given in connection with the charges in counts 11 and 14 of selling narcotics without a written purchase order. We find no error in the presentation of the case to the jury on these two counts, and in view of the concurrence of the sentences, it is unnecessary for us to resolve the questions presented as to the validity of the convictions on the remaining six counts.

US Supreme Court

WALDER v. UNITED STATES

1954.SCT.123 , 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503

February 1, 1954

1954
US Court of Appeals

In 1951 the traffic in narcotics had reached such alarming proportions in the United States that Congress passed a concurrent resolution, H.R. 3490, "to make more stringent and uniform the penalties to be imposed upon persons violating" these laws. . . .

In October of 1952 the defendant Andrew Kapsalis was charged in three indictments, containing two, nine and four counts, respectively, with violations of the Harrison Narcotics Act, . . .. The court, after first determining by questioning the defendant and his attorney that the defendant's attorney had advised the defendant as to his rights, as to the nature of the offenses and as to the possible penalties, accepted the pleas of guilty, adjudged the defendant guilty and sentenced him to ten years imprisonment on each indictment, the sentences to run concurrently for a total of ten years.

The defendant Kapsalis now contends that the District Court was influenced to sentence him for a longer term on each indictment because of the mandatory minimum penalties "purportedly" established by the 1951 amendments . . . under which the defendant was sentenced was invalid; that it never became a law because the resolution after being passed by the Congress was neither "presented to the President nor approved by the President as required by Article I, Section 7, Clause 2 of the Constitution." Kapsalis therefore contends that the District Court erred in dismissing the motion to vacate his sentence.  . . .

We think the motions and the files and the record in each of these cases conclusively show that the prisoners Kapsalis and Robinson were entitled to no relief and their motions were, therefore, properly dismissed without a hearing.

1954
US Court of Appeals

This case considered whether a witness being present in the courtroom, and the judge's instructions to the jury, were grounds for reversal.

1954
US Court of Appeals

On February 8, 1952, an indictment was returned against the appellant charging him with wilfully, knowingly and feloniously obtaining and possessing 1081/2 grains of bulk marihuana without having paid the tax thereon as required by law. 26 U.S.C.A. § 2593(a). Appellant appeared before the United States District Court for the District of Kansas, together with court-appointed counsel, and entered a plea of guilty to the indictment. On that plea appellant was sentenced to imprisonment for five years.

On April 30, 1954, appellant filed a motion under 28 U.S.C.A. § 2255 to set aside the sentence on the ground that the section which he allegedly violated was derived from the Marihuana Tax Act of 1937 which was repealed February 10, 1939, and that the court lacked jurisdiction to impose the judgment and sentence because the law under which he was sentenced had been repealed. 

Judgment affirmed.

1954
US Court of Appeals

Appellant's contention that the statute hereinabove referred to as the Boggs Act is ex post facto litigation and unconstitutional is without merit. The statute was in effect prior to May 29, 1952, the date of the offenses charged in the indictment. The information, setting out the two prior convictions, did not charge appellant with any crime. It merely alleged facts, which, if established, went solely to the question of punishment.

Appellant contends that the Marihuana Tax Act of 1937, violation of which was specifically charged in the indictment, was not in effect on May 29, 1952, having been superseded by the Marihuana Tax Act of 1939, and that the indictment in charging violation of a law no longer in existence was invalid. It is conceded that the acts alleged in the indictment were violations of the Marihuana Tax Act of 1939. It is well settled that if the indictment charges acts illegal under an existing federal statute it is not invalidated for failure to refer to the statute or for specifying the wrong statute.

1955
US Supreme Court

After a hearing pursuant to § 242 (b) of the Immigration and Nationality Act of 1952, petitioner, an alien who had been convicted in 1938 of violation of the Marihuana Tax Act, was ordered deported. . . . The validity of the deportation order was challenged by petitioner in a proceeding. Held :

1. The Immigration and Nationality Act of 1952 expressly supersedes the hearing provisions of the Administrative Procedure Act. Pp. 305-310.

2. The fact that the special inquiry officer was subject to the supervision and control of officials in the Immigration Service charged with investigative and prosecuting functions did not so strip the hearing of fairness and impartiality as to make the procedure violative of the Due Process Clause of the Fifth Amendment. P. 311.

3. Petitioner failed to support his claim that, within the meaning of this Court's decisions in the Accardi cases, his case was prejudged by the Board of Immigration Appeals and by the special inquiry officer. Pp. 311-314.

4. The prohibition of the ex post facto clause of the Constitution does not apply to deportation of aliens.

1955
US Court of Appeals
Sixth Circuit

. .  appellant was convicted for violating section 2593(a), Title 26, U.S.C.A., making it a crime for a transferee of marihuana to possess that narcotic drug without having complied with the lawful requirements as to payment of tax and production of the required order forms, there is no force in the argument of appellant that the codifying Act of February 10, 1939, repealed all laws or parts of laws embodied in the 1937 Marihuana Tax Act;

And it appearing after full consideration of the facts of the case that there was no arrest and seizure of appellant in violation of the Fourth Amendment to the Constitution of the United States, the judgment of the district court is affirmed upon the authority of United States v. Rabinowitz, 339 U.S.

1956
US Supreme Court

On the basis of evidence seized under an invalid federal search warrant, petitioner was indicted in a federal court for unlawful acquisition of marihuana. On his motion under Rule 41 (e) of the Federal Rules of Criminal Procedure, this evidence was suppressed. Thereafter he was charged in a state court with possession of marihuana in violation of state law. Alleging that the evidence suppressed in the federal court was the basis of the state charge, petitioner moved in a federal court for an order enjoining the federal agent who had seized the evidence from transferring it to state authorities or testifying with respect thereto in the state courts. Held: The motion should have been granted. Pp. 214-218.

1956
US Court of Appeals

We are convinced that it has been established beyond controversy that, under section 241(a)(11) of the Act, petitioner's conviction of a narcotics offense was in itself sufficient basis for the deportation order.

1957
US Supreme Court

Petitioner was convicted (of)  possessing and transporting heroin imported unlawfully. In the face of repeated demands by petitioner for disclosure, the trial court sustained the Government's refusal to disclose the identity of an undercover informer who had taken a material part in bringing about petitioner's possession of the drugs, had been present with petitioner at the occurrence of the alleged crime, and might have been a material witness as to whether petitioner knowingly transported the drugs as charged. Held : In the circumstances of this case, failure of the court to require disclosure of the identity of the informer was reversible error.

1957
US Supreme Court

Petitioner, born in 1910 in the Philippine Islands, has resided in the continental United States since 1930 when he was admitted for permanent residence. He was convicted in February 1951 of violating the federal narcotics laws. After administrative proceedings, he was ordered deported under the Act of February 18, 1931, as amended, which provides for the deportation of "any alien" convicted of violating a federal narcotics law. Petitioner's application for was denied by the Federal District Court and the Court of Appeals affirmed. Held : Petitioner was deportable under the 1931 Act, and the judgement is affirmed. Pp. 428-433.

1957
US Supreme Court

An alien who entered the United States in 1920 for permanent residence was convicted in 1925 of a federal offense relating to illicit traffic in narcotics. At that time, there was no statute making that offense a ground for deportation. After enactment of the Immigration and Nationality Act of 1952, he was ordered deported under §§ 241 (a)(11) and (d) thereof, which provide for the deportation of any alien who "at any time" has been convicted of violating any law relating to illicit traffic in narcotics. He challenged the validity of this order in a proceeding. Held : the order of deportation is sustained. Lehmann v. United States ex rel. Carson, ante, p. 685. Pp. 692-694.

1957
US Court of Appeals
Ninth Circuit

Appellant contends that the maximum sentence which the trial court had jurisdiction to impose upon him was four years since count four is identical with count three and count one is identical with count five. He further contends that the sentences constitute double jeopardy.

1958
US Court of Appeals

Appellant asserts that imposition of the second (consecutive) sentence has caused him to suffer double punishment because of an inference that the heroin referred to in the first count was also involved in the second count. .

The above noted argument advanced by appellant is utterly void of merit.

1958
US Court of Appeals

Miguel A. Moreno Rios, after having pleaded guilty to an information charging a violation of the Narcotic Drugs Import and Export Act, . . .

Two grounds are urged by appellant to support his proposition that the judgment of conviction is void: (1) Because the federal criminal statute in question is inapplicable to the Commonwealth of Puerto Rico, and (2) because Chief Justice Snyder was not lawfully designated to serve as acting judge in the federal district court. Neither point amounts to anything. In this determination we are in accord with the conclusions reached by the Commonwealth Government in its brief amicus curiae.

1958
US Court of Appeals
First Circuit

The Court held that the Marihuana Tax Act also applies in Puerto Rico.

1958
US Supreme Court

Convicted in a federal court on six counts for violating three different sections of federal law by a single sale of narcotics on each of two different days, petitioner was sentenced to three consecutive terms for each day's sale, the terms for each day's sale to run concurrently with those for the other day's sale. He moved under 28 U. S. C. § 2255 to vacate the sentences as unlawful. Held : The sentences were not unlawful.

(a) The Court adheres to the decision in Blockburger v. United States, 284 U.S. 299.

(b) Though the three sections here involved grew out of a single purpose to outlaw non-medicinal sales of narcotics, they grew out of three different laws enacted at different times, for each of which Congress has provided a separate punishment, and Congress did not intend that violations of all three should be treated as a single offense when committed through a single sale.

(c) Bell v. United States, 349 U.S. 81, distinguished. 

(d) The result here reached does not offend the constitutional prohibition of double jeopardy. 

(e) The question of policy involved is for Congress to decide, and this Court has no power to increase or reduce sentences for such offenses.

1958
US Court of Appeals

During the trial, counsel for the United States called as a Government witness the lieutenant in charge of the Bureau of Identification of the Police Department of the City and County of Denver and asked him if he had certain records. When the lieutenant responded that he had such records, he was asked to produce them. When the records were produced, Government counsel handed them to the reporter to be marked for identification. At that point counsel for Emmett and the other defendants approached the bench and requested the court to declare a mistrial. The court recessed and heard the matter fully in the absence of the jury. The court concluded that the jury had neither seen the exhibits nor observed them to the extent that they learned the contents thereof; held that the exhibits were not admissible in evidence; directed that they be not returned to the courtroom and denied the motion for a mistrial. The denial of such motion is the ground set up in the motion to vacate the sentence.   (decision affirmed)