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November 19, 1968

Saul ADAMS, Felix Ortiz Munclova, Eduardo Norman, Anita Ocascio, Alphonso Oswaldo, Juan Penton, Rigoberto Rosal Rodriguez, Mario Rojas, Solomon Sandez and Carlos Santana, Defendants

The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

 The first count of the two-count indictment charges ten defendants with a conspiracy to import marihuana illegally, and to "receive, conceal," etc. such marihuana, "knowing said marihuana had been imported and brought into the United States contrary to law," all in violation of 21 U.S.C. § 176a. *fn1" The second count charges one of the defendants with a substantive offense under the same statute.

 The problem before the court at this time centers upon the second paragraph of § 176a, which provides:

"Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury."

 The defendants have moved to dismiss the indictment upon the asserted ground that the "presumptions" or "statutory inferences" thus authorized violate both the right to due process and the privilege against self-incrimination guaranteed by the Fifth Amendment. *fn2" The crux of their position is quickly stated, if less easily adjudicated: it is that marihuana grows all over the United States as well as abroad, and that possession, therefore, is not a rational or reasonable, but an arbitrary, basis for inferring (1) unlawful importation and (2) the possessor's knowledge of such importation. To demonstrate the alleged factual foundation for this thesis, the movants (more specifically, counsel for defendant Rojas, who pulled the laboring oar) requested an evidentiary hearing.

 In its opposing arguments the Government substantially conceded the widespread growth at least of uncultivated marihuana. It urged, however, that the Congress, when it authorized the statutory inferences in question, had solid evidence that nearly all marihuana smoked in the United States comes from abroad (mainly from Mexico). Stressing this proposition, and citing cases closely approaching its goal, the prosecution urged denial of the motion without a hearing. If evidence should be received on the constitutional problem, the Government further argued, there would be time enough for that when the case went to trial.

 The court concluded as a preliminary matter that defendants were entitled to the evidentiary hearing they sought. This is not by any means the first assault of its kind upon § 176a. In more than one case, this contention and others closely similar have been dismissed at the threshold because the defendants made no record thought sufficient to cast doubt upon the presumption "that Congress' enactment of the presumption in § 176a * * * is * * * reasonable * * *." United States v. Gibson, 310 F.2d 79, 82 (2d Cir. 1962); cf. United States v. Coke, 364 F.2d 484, 485-486 (2d Cir. 1966), cert. denied, 386 U.S. 918, 87 S. Ct. 877, 17 L. Ed. 2d 789 (1967); Costello v. United States, 324 F.2d 260, 264 (9th Cir. 1963), cert. denied, 376 U.S. 930, 84 S. Ct. 699, 11 L. Ed. 2d 650 (1964). Warned of that pitfall, defendants here have proceeded sensibly to avoid it. They seemed correct, too, in urging that the evidentiary record they desired be made separately and in advance, not as part of the trial record. The question is one of constitutional law; the factual issues are not particular ones as to the guilt or innocence of these defendants, but general ones affecting the reasonableness and the rationality of the inferences Congress enthroned as statutory guides or authorizations. Resolution of these issues, while it appeared unlikely to lead in any event to dismissal of the indictment, could be expected to affect the submission of proofs and the framing of instructions to the jury.

 Accordingly, the court has held the factual hearing defendants sought. Two witnesses were heard: first, for the defense, Professor Richard Evans Schultes, Curator of Economic Botany, Lecturer in Economic Botany and Director of the Botanic Museum of Harvard University; then, for the Government, Narcotic Agent William J. Durkin, currently Director of the Federal Bureau of Narcotics Permissive Section, whose 17 years with the Bureau have encompassed a variety of assignments in most of Latin, Central, and South America, various Asian countries, and many parts of the United States. In addition to the testimony of these witnesses -- considering that the problem concerns the broad subject of "common experience" and the "circumstances of life as we know them," Tot v. United States, 319 U.S. 463, 468, 63 S. Ct. 1241, 1245, 87 L. Ed. 1519 (1943) -- the court received without objection references to books, legislative hearings, administrative reports, and newspaper stories. The objective, of course, was to test the reasonableness of two statutory inferences from possession of marihuana -- (1) importation and (2) knowledge thereof -- and so it was critical to appraise pertinent indicators of what the generality of men "know" or are likely to believe (including, of course, things we know which may not be so). The discussion in the first of the following sections of this opinion summarizes the court's findings from the evidence, broadly conceived, as well as other data of common experience which bear upon the ultimate questions for decision.


 Marihauna (cannabis sativa), one of the oldest known plants, has been used through the ages for fibre, for oil, and for its narcotic principles. Until three decades or so ago, it was prescribed medicinally. Originally native to Central Asia, the plant was introduced here about the time of the American Revolution for the cultivation of hemp fibre, and it became, about 100 years or so ago, this country's second largest non-food agricultural crop. With changing economic conditions, however, at least since as long ago as the end of World War II, the legitimate cultivation and use of the plant have ceased almost completely.

 Whatever its actual or possible uses, there is botanically but a single species of the plant. Despite the practically total end of licit cultivation, it continues to grow spontaneously or adventitiously in a substantial area of the world and, most interestingly for us, can grow in every State of the United States as well as Puerto Rico, Panama, and the Canal Zone. *fn3" It spreads, grows, and reproduces itself without human attention. One of the factors continuing to promote this lush growth is the former use, until recent times, of marihuana seeds in bird feed; and it appears until this day that the taste of winged creatures for such nourishment supplies continuing problems of noticeable magnitude for state and local health and drug-control officials.

 It is difficult or impossible for all but the most expert analysts, using sophisticated techniques, to determine whether any given sample of marihuana comes from this or some foreign country. Nevertheless, upon the basis of enforcement experience both before and since the enactment of 21 U.S.C. § 176a in 1956, officials of the Bureau of Narcotics have concluded (and reported to Congress) that as much as 90%, or even more, of the smoking marihuana seized in this country over the years comes from abroad, primarily from Mexico, where cultivation is also illegal. These judgments are aided by the fact that Mexican producers employ characteristic methods of packaging the product. The belief that a preponderant part of the marihuana traffic here is comprised of imports is buttressed by the general impression and understanding, among narcotic agents and some popular observers, that smokers of the substance tend to prefer Mexican varieties. Not all students of the problem appear to share this view. *fn4"

 On the other hand, both state and federal officials concerned with enforcement of the narcotic laws devote extensive time, energy, and publicity to the work, as part of their enforcement duties, of eradicating large areas of marihuana growth. *fn5" Year after year the Bureau of Narcotics reports acreages of growth destroyed. *fn6" The reports reflect that narcotics control must focus upon domestically grown marihuana as well as that smuggled in from abroad. In any single year, the amount of domestic growth thus destroyed could yield more marihuana than all that seized and destroyed by the Bureau and other enforcement agencies. And, of course, there are no figures for domestic growth which is not discovered and not destroyed except as this facet of the matter may be illuminated by the fact that the work continues annually with no apparent diminution over time.

 Both "experts" of one kind or another and laymen are made conscious of the intensive concern of police officials over domestically grown marihuana as the "raw material" *fn7" for domestic use of this narcotic. In this and other ways there arises a widespread belief that the widely prevalent use of marihuana is supplied in substantial measure by domestic growth. Professor Schultes reported truthfully his judgment (whether correct or not, it is scarcely possible to know) that the marihuana so widely grown everywhere in the United States is the source of that smoked by most users in this country. In preliminary discussions some six months before passage of the bill which became the statute here in question Senator Langer of North Dakota observed that "it is very easy for a ...

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