# United States v. Gainey/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Douglas Black
United States Supreme Court
380 U.S. 63
United States v. Gainey
Argued: Oct. 15, 1964. --- Decided: March 1, 1965
Mr. Justice BLACK, dissenting.
Respondent Gainey was tried and convicted of possession of an unregistered still and of carrying on the business of a distiller without having given bond in violation of a federal statute. Other provisions of the statute entitled 'Presumptions,' declare that presence at the site of such a distillery 'shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such presence to the satisfaction of the jury * * *.' At the trial federal and state officers testified, among other things, that they had seen Gainey at a still site. Gainey did not testify. The trial court, quite appropriately if the foregoing provisions are valid, instructed the jury that Gainey's unexplained presence at the still was 'deemed in law sufficient' to convict. I think that the statutory provisions which authorize such a charge deprived Gainey (1) of his constitutional right to trial by jury, guaranteed him both in Art. III, § 2, and in the Sixth Amendment; (2) of due process of law guaranteed by the Fifth Amendment, which includes the right to be tried for a crime in a court according to the law of the land, without any interference with that court's judicial functions by the Congress; and (3) of his right guaranteed by the Fifth Amendment not to be compelled to be a witness against himself.
First of all, let me say that I am at a loss to understand the Court's puzzling statement that 'where the only evidence is of presence the statute does not require the judge to submit the case to the jury, nor does it preclude the grant of a judgment notwithstanding the verdict.' The provisions in question both say unqualifiedly that 'presence of the defendant shall be deemed sufficient evidence to authorize conviction' unless the defendant explains his presence. The Court holds that this statutory command in § 5601(b)(2) is valid, but then for some reason adds that judges are free to ignore it or, after telling juries that they may rely on it, are free to set aside the verdicts of those juries which do. In other words, under the Court's holding the judge is left free to take the extraordinary course of following a valid statute or not, as he chooses. Judges are not usually given such unlimited discretion to disregard valid statutes. And as the Court indicates elsewhere in its opinion, it was to prevent judges from setting aside jury verdicts based on presence alone that Congress passed this statute in the first place. Besides being almost self-contradictory, it amounts to an emasculation of those statutory provisions, I think, to say that the judge was not required to tell the jury about them. But whether or not he was bound to do so, the fact is that here he did, and so this jury deliberated with the judge's solemn instruction that Congress had decided that proof of mere unexplained presence at a still was sufficient to convict Gainey of having illegally possessed it or carried on its business. Few jurors could have failed to believe that it was their duty to convict under this charge if presence was proved, and few judges could have failed to believe it was their duty to uphold such a conviction, even though all of them in a particular case might have felt that mere presence alone was not enough to show guilt.
It has always been recognized that the guaranty of trial by jury in criminal cases means that the jury is to be the factfinder. This is the only way in which a jury can perform its basic constitutional function of determining the guilt or innocence of a defendant. See, e.g., United States ex rel. Toth v. Quarles, 350 U.S. 11, 15-19, 76 S.Ct. 1, 4-6, 100 L.Ed. 8; Reid v. Covert, 354 U.S. 1, 5-10, 77 S.Ct. 1222, 1224-1227 (opinion announcing judgment). And of course this constitutionally established power of a jury to determine guilt or innocence of a defendant charged with crime cannot be taken away by Congress, directly or indirectly, in whole or in part. Obviously, a necessary part of this power, vested by the Constitution in juries (or in judges when juries are waived), is the exclusive right to decide whether evidence presented at trial is sufficient to convict. I think it flaunts the constitutional power of courts and juries for Congress to tell them what 'shall be deemed sufficient evidence to authorize conviction.' And if Congress could not thus directly encroach upon the judge's or jury's exclusive right to declare what evidence is sufficient to prove the facts necessary for conviction, it should not be allowed to do so merely by labeling its encroachment a 'presumption.' Neither Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519, relied on by the Court as supporting this presumption, nor any case cited in Tot approved such an encroachment on the power of judges or juries. In fact, so far as I can tell, the problem of whether Congress can so restrict the power of court and jury in a criminal case in a federal court has never been squarely presented to or considered by this Court, perhaps because challenges to presumptions have arisen in many crucially different contexts but nevertheless have generally failed to distinguish between presumptions used in different ways, treating them as if they are either all valid or all invalid, regardless of the rights on which their use may impinge. Because the Court also fails to differentiate among the different circumstances in which presumptions may be utilized and the different consequences which will follow, I feel it necessary to say a few words on that subject before considering specifically the validity of the use of these presumptions in the light of the circumstances and consequences of their use.
In its simplest form a presumption is an inference permitted or required by law of the existence of one fact, which is unknown or which cannot be proved, from another fact which has been proved. The fact presumed may be based on a very strong probability, a weak supposition or an arbitrary assumption. The burden on the party seeking to prove the fact may be slight, as in a civil suit, or very heavy-proof beyond a reasonable doubt-as in a criminal prosecution. This points up the fact that statutes creating presumptions cannot be treated as fungible, that is, as interchangeable for all uses and all purposes. The validity of each presumption must be determined in the light of the particular consequences that flow from its use. When matters of trifling moment are involved, presumptions may be more freely accepted, but when consequences of vital importance to litigants and to the administration of justice are at stake, a more careful scrutiny is necessary.
In judging the constitutionality of legislatively created presumptions this Court has evolved an initial criterion which applies alike to all kinds of presumptions: that before a presumption may be relied on, there must be a rational connection between the facts inferred and the facts which have been proved by competent evidence, that is, the facts proved must be evidence which is relevant, tending to prove (though not necessarily conclusively) the existence of the fact presumed. And courts have undoubtedly shown an inclination to be less strict about the logical strength of presumptive inferences they will permit in civil cases than about those which affect the trial of crimes. The stricter scrutiny in the latter situation follows from the fact that the burden of proof in a civil lawsuit is ordinarily merely a preponderance of the evidence, while in a criminal case where a man's life, liberty, or property is at stake, the prosecution must prove his guilt beyond a reasonable doubt. See Morrison v. People of State of California, 291 U.S. 82; 96-97, 54 S.Ct. 281, 287, 78 L.Ed. 664. The case of Bailey v. State of Alabama, 219 U.S. 219, 31 S.Ct. 145, 55 L.Ed. 191, is a good illustration of this principle. There Bailey was accused of violating an Alabama statute which made it a crime to fail to perform personal services after obtaining money by contracting to perform them, with an intent to defraud the employer. The statute also provided that refusal or failure to perform the services, or to refund money paid for them, without just cause, constituted 'prima facie evidence' (i.e., gave rise to a presumption) of the intent to injure or defraud. This Court, after calling attention to prior cases dealing with the requirement of rationality, passed over the test of rationality and held the statute invalid on another ground. Looking beyond the rational-relationship doctrine the Court held that the use of this presumption by Alabama against a man accused of crime would amount to a violation of the Thirteenth Amendment to the Constitution, which forbids 'involuntary servitude, except as a punishment for crime.' In so deciding the Court made it crystal clear that rationality is only the first hurdle which a legislatively created presumption must clear-that a presumption, even if rational, cannot be used to convict a man of crime if the effect of using the presumption is to deprive the accused of a constitutional right. In Bailey the constitutional right was given by the Thirteenth Amendment. In the case before us the accused, in my judgment, has been denied his right to the kind of trial by jury guaranteed by Art. III, § 2, and the Sixth Amendment, as well as to due process of law and freedom from self-incrimination guaranteed by the Fifth Amendment. And of course the priciple announced in the Bailey case was not limited to rights guaranteed by the Thirteenth Amendment. The Court said in Bailey:
'It is apparent that a constitutional prohibition cannot be transgressed indirectly by the creation of a statutory presumption any more than it can be violated by direct enactment. The power to create presumptions is not a means of escape from constitutional restrictions.' 219 U.S., at 239, 31 S.Ct., at 151.
Thus the Court held that presumptions, while often valid (and some of which, I think, like the presumption of death based on long unexplained absence, may perhaps be even salutary in effect), must not be allowed to stand where they abridge or deny a specific constitutional guarantee. It is one thing to rely on a presumption to justify conditional administration of the estate of a person absent without explanation for seven years, see Cunnius v. Reading School District, 198 U.S. 458, 25 S.Ct. 721, 49 L.Ed. 1125; compare Scott v. McNeal, 154 U.S. 34, 14 S.Ct. 1108, 38 L.Ed. 896; it would be quite another to use the presumption of death from seven years' absence to convict a man of murder. I do not think it can be denied that use of the statutory presumptions in the case before us at the very least seriously impaired Gainey's constitutional right to have a jury weigh the facts of his case without any congressional interference through predetermination of what evidence would be sufficient to prove the facts necessary to convict in a particular case.
The Bailey case also emphatically answers the Court's insistence that this encroachment on Gainey's constitutional rights was justified or neutralized by the trial court's instruction that while evidence of unexplained presence was sufficient under the statute to convict, the jury nonetheless was not compelled to convict. This same kind of contention was made to this Court and rejected in Bailey where the Alabama Supreme Court had upheld that State's presumption on the ground that 'with such evidence before them, the jury are still left free to find the accused guilty or not guilty, according as they may be satisfied of his guilt or not, by the whole evidence.' Bailey v. State, 161 Ala. 75, 78, 49 So. 886, 887. This Court answered that contention then, as I think it should now, saying:
'The point is that, in such a case, the statute authorizes the jury to convict. It is not enough to say that the jury may not accept that evidence as alone sufficient; for the jury may accept it, and they have the express warrant of the statute to accept it is as a basis for their verdict.' 219 U.S., at 235, 31 S.Ct., at 149. (Emphasis in original.)
And the Court added that 'The normal assumption is that the jury will follow the statute, and, acting in accordance with the authority it confers, will accept as sufficient what the statute expressly so describes.' Id., at 237, 31 S.Ct., at 150.
Even if I could accept the doctrine that Congress after declaring that certain conduct shall be a crime has further power to tell judges and juries that certain evidence shall be sufficient to prove that conduct and convict a defendant, I could not agree that these statutory presumptions are constitutional. They declare mere presence at a still site without more to be sufficient evidence to convict of the crimes of carrying on a distillery business and possessing a still. While presence at a still is unquestionably a relevant circumstance to add to others to prove possession or operation of a still, I could not possibly agree that mere presence is sufficient in and of itself, without any supporting evidence, to permit a finding that, beyond a reasonable doubt, the person present carried on a distillery business or possessed a still or even aided and abetted in committing those crimes. Indeed, with respect to the crime of possession, as the Court concedes, we held squarely to the contrary in Bozza v. United States, 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818, quite properly, I think. In setting aside the Bozza conviction for possession of a still, which had been based on mere presence at a still, this Court was acting in accordance with the historic principle that 'independent trial judges and independent appellate judges have a most important place under our constitutional plan since they have power to set aside convictions.' United States ex rel. Toth v. Quarles, 350 U.S. 11, 19, 76 S.Ct. 1, 6. This judicial responsibility to pass on the sufficiency of the evidence must be exercised in each case, no more to be controlled by a general congressional enactment than it could be by a special act directed to one case only. This protective function of the court is amply demonstrated in the case before us: while Gainey was originally indicted on four counts, the trial judge directed a verdict of acquittal on one and the Court of Appeals ordered acquittal on another.
It indeed is true, as the Court suggests, that it was to make convictions possible on no more evidence than presence that the presumption statute here under consideration was passed. Undoubtedly a presumption which can be used to produce convictions without the necessity of proving a crucial element of the crime charged-and a sometimes difficult-to-prove element at that-is a boon to prosecutors and an incongruous snare for defendants in a country that claims to require proof of guilt beyond a reasonable doubt. Quite accurately such a use of a presumption has been described as 'First Aid to the District Attorney.' Instead of supporting the constitutionality of such a use of statutory presumptions, however, I think this argument based on necessity and convenience points out its fatal defects. I suppose no one would deny that the Government's burden would also be made lighter if the defendant was not represented by counsel, compare Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, or if the jury could receive and consider confessions extorted by torture, compare Brown v. State of Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, or if evidence obtained from defendants through illegal searches and seizures could be used against them, compare Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, but this Court has not hesitated to strike down such encroachments on those constitutional rights. Yet here the Court sanctions a method less crude, but just as effective, to deny Gainey his constitutional right to a trial by jury.
I cannot subscribe to the idea that any one of the constitutional grants of power to Congress enumerated in Art. I, § 8, including the Necessary and Proper Clause, contains either an express or an implied power of Congress to instruct juries as to what evidence is sufficient to convict defendants in particular cases. Congress can undoubtedly create crimes, but it cannot constitutionally try them. The Constitution specifically prohibits bills of attainder. Congress can declare certain conduct a crime, unless barred by some constitutional provision, but it must, if true to our Constitution of divided powers and the Fifth Amendment's command that cases be tried according to due process of law, leave the trial of those crimes to the courts, in which judges or juries can decide the facts on their own judgment without legislative constraint and judges can set aside conviction which they believe are not justified by the evidence. See Tot v. United States, 319 U.S. 463, 473, 63 S.Ct. 1241, 1247 (concurring opinion). '(I)t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.' McFarland v. American Sugar Refining Co., 241 U.S. 79, 86, 36 S.Ct. 498, 501, 60 L.Ed. 899. See Manley v. State of Georgia, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575. Yet, viewed realistically, that is what the presumption which the Court today approves does in this case. I think that the presumption which should govern instead in criminal trials in the courts of this country is the time-honored presumption of innocence accorded to all criminal defendants until they are proved guilty by competent evidence.
Nor can a power of Congress to detract from the constitutional power of juries and judges to decide what facts are enough to convict be implied because of the power of Congress to make procedural rules or rules of evidence. See Ex parte Fisk, 113 U.S. 713, 720, 5 S.Ct. 724, 727, 28 L.Ed. 1117. It is not disputed that Congress has power to prescribe rules governing admissibility of evidence and purely procedural matters. The Congress unquestionably could declare the fact of presence to be admissible evidence, for certainly it is relevant when considered along with other circumstances. Yet this power to say what shall or shall not be admissible in no way empowers Congress to determine what facts, once admitted, suffice to prove guilt beyond a reasonable doubt. And I certainly cannot join the Court when it says:
'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.'
The implication of this statement is that somehow Congress is better qualified to decide what facts are sufficient to convict defendants than are courts and juries. I accept the proposition that Congress is the proper branch of our Government to decide legislative policies and enact general laws and that in so doing it must of necessity deal with facts to some extent. This is as the Constitution provides. But Congress is not authorized nor has it any special 'expertise' with which I am familiar which entitles it to direct juries as to what conclusions they may or must draw from the unique facts of specific criminal cases tried in federal courts. Moreover, even were I to assume that Congress does have an expertise to assess facts in lawsuits which is superior to that of juries and judges, I still could not join the Court's opinion, for I think that the Founders of our Government decided for us that these are matters 'within specialized'-and exclusive-'judicial competence.' As this Court has said with reference to jury trial of facts:
'whether right or wrong, the premise underlying the constitutional method for determining guilt or innocence in federal courts is that laymen are better than specialists to perform this task.' United States ex rel. Toth v. Quarles, 350 U.S. 11, 18, 76 S.Ct. 1, 6.
Besides impairing Gainey's right to trial by jury according to due process safeguards, the statutes in this case I think violated Gainey's constitutional rights in still another way. These statutory presumptions must tend, when incorporated into an instruction, as they were here, to influence the jury to reach an inference which the trier of fact might not otherwise have though justified, to push some jurors to convict who might not otherwise have done so. Cf. Pollock v. Williams, 322 U.S. 4, 15, 64 S.Ct. 792, 798, 88 L.Ed. 1095. The undoubted practical effect of letting guilt rest on unexplained presence alone is to force a defendant to come forward and testify, however much he may think doing so may jeopardize his chances of acquittal, since if he does not he almost certainly destroys those chances. This is compulsion, which I think runs counter to the Fifth Amendment's purpose to forbid convictions on compelled testimony. The compulsion here is of course more subtle and less cruel physically than compulsion by torture, but it is nonetheless compulsion and it is nonetheless effective. I am aware that this Court in Yee Hem v. United States, 268 U.S. 178, 185, 45 S.Ct. 470, 472, 49 L.Ed. 904, held that use of a presumptive squeeze like this one did not amount to a form of compulsion forbidden by the Fifth Amendment. The Court's reasoning was contained in a single paragraph, the central argument of which was that despite a presumption like this a defendant is left 'entirely free to testify or not as he chooses.' That argument, it seems to me, would also justify admitting in evidence a confession extorted by a policeman's pointing a gun at the head of an accused, on the theory that the man being threatened was entirely free to confess or not, as he chose. I think the holding in Yee Hem is completely out of harmony with the Fifth Amendment's prohibition against compulsory self-incrimination, and I would overrule it. See Feldman v. United States, 322 U.S. 487, 494, 64 S.Ct. 1082, 1085, 88 L.Ed. 1408 (dissenting opinion); compare Leyra v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948. See also State v. Lapointe, 81 N.H. 227, 123 A. 692, 31 A.L.R. 1212, quoted with approval in the opinion of the court below, 322 F.2d 292, 296 (C.A.5th Cir.).
For all the foregoing reasons, I think that these two statutory presumptions by which Congress has tried to relieve the Government of its burden of proving a man guilty and to take away from courts and juries the function and duty of deciding guilt or innocence according to the evidence before them, unconstitutionally encroach on the functions of courts and deny persons accused of crime rights which our Constitution guarantees them. The most important and most crucial action the courts take in trying people for crime is to resolve facts. This is a judicial, not a legislative, function. I think that in passing these two sections Congress stepped over its constitutionally limited bounds and encroached on the constitutional power of courts to try cases. I would therefore affirm the judgment of the court below and grant Gainey a new trial by judge and jury with all the protections accorded by the law of the land.

## Notes

* ↑ 26 U.S.C. § 5601(a)(1) (1958 ed.) provides:
* ↑ 26 U.S.C. § 5601(a)(4) (1958 ed.) provides:
* ↑ Section 5601(b)(1) provides:
* ↑ Although the Court does not consider the validity of § 5601(b)(1), its reasoning surely would seem to apply to that section as well.
* ↑ I agree with the Court's holding that the language of § 5601(b)(2) 'permits the judge to submit a case to the jury on the basis of the accused's presence alone.' The Court does not suggest any reason why it would interpret the identical language in § 5601(b)(1) any differently.
* ↑ Such an act obviously would be proscribed as a bill of attainder, forbidden by Art. I, § 9. See United States v. Lovett, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252; Cummings v. State of Missouri, 4 Wall. 277, 11 L.Ed. 356; Ex parte Garland, 4 Wall. 333, 18 L.Ed. 366.
* ↑ The trial judge directed a verdict of acquittal on a count charging Gainey with working in a distillery which did not bear a sign showing the name of the person engaged in the distilling and denoting the business in which he was engaged, an offense made punishable by 26 U.S.C. §§ 5180(a), 5681(c) (1958 ed.).
* ↑ Court three of the indictment charged Gainey with carrying on the business of a distiller with intent to defraud the United States of taxes, a violation of 26 U.S.C. § 5602 (1958 ed.). The Court of Appeals, holding that the record showed 'no evidence whatever of intent to defraud,' set aside the jury's verdict of conviction on that count. 322 F.2d 292, 300.
* ↑ In this case, however, the record shows that there unquestionably was enough other evidence to submit the case to the jury without need for any artificial presumption. But the Court does not suggest that the use here of this presumption either should be or could be called harmless.
* ↑ Chamberlain, Presumptions as First Aid to the District Attorney, 14 A.B.A.J. 287.
* ↑ 'Once the thumbscrew and the following confession made conviction easy; but that method was crude and, I suppose, now would be declared unlawful upon some ground. Hereafter, presumption is to lighten the burden of the prosecutor. The victim will be spared the trouble of confessing and will go to his cell without mutilation or disquieting outcry.' Casey v. United States, 276 U.S. 413, 420, 48 S.Ct. 373, 375, 72 L.Ed. 632 (dissenting opinion).
* ↑ It might be argued, although the Court does not so argue or hold, that Congress if it wished could make presence at a still a crime in itself, and so Congress should be free to create crimes which are called 'possession' and 'carrying on an illegal distillery business' but which are defined in such a way that unexplained presence is sufficient and indisputable evidence in all cases to support conviction for those offenses. See Ferry v. Ramsey, 277 U.S. 88, 48 S.Ct. 443, 72 L.Ed. 796. Assuming for the sake of argument that Congress could make unexplained presence a criminal act, and ignoring also the refusal of this Court in other cases to uphold a statutory presumption on such a theory, see Heiner v. Donnan, 285 U.S. 312, 52 S.Ct. 358, 76 L.Ed. 772, there is no indication here that Congress intended to adopt such a misleading method of draftsmanship, nor in my judgment could the statutory provisions if so construed escape condemnation for vagueness, under the principles applied in Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888, and many other cases.
* ↑ 'While it is within the province of the legislature to determine the sources of evidence, the modes of verification, who may or may not be competent witnesses, I am not prepared to say they may weigh and determine the quantity of evidence, which shall suffice to produce conviction in the mind of the judge or juror who tries a cause.' Thomas, J., dissenting Commonwealth v. Williams, 6 Gray (72 Mass.) 1, 10, cited with approval in State v. Beswick, 13 R.I. 211, 219.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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