Warren E. Burger: Number 271, Buie against the United States. You may proceed whenever you're ready Mr. Diamond.
David A. Diamond: May it please the Court. This case concerns the application of the privilege against self-incrimination as developed in the Marchetti, Grosso and Haynes and most recently, the Leary case, to the situation of a transferor of marihuana pursuant to the transfer, order form requirements of the Marihuana Tax Statutes. Briefly, the facts of this case are that the petitioner was introduced by a friend to two federal narcotics agents acting in an under cover capacity. He had no -- they had no knowledge of his existence prior to the introduction. They were introduced to him simply as Mike, the petitioner's first name. As a result of the introduction there were various sales of marihuana and marihuana drugs. The sales were made not in pursuance of an order form issued by the treasurer of the United States as required by 26 U.S.C. Section 4742. Petitioner did not request an order form from the agents, the agents had not procured such an order form. Petitioner was indicted on three counts, two of which were selling, not in pursuance of an order form and was convicted on one count, not selling pursuant to an order form. The case was affirmed by the Second Circuit relying solely on United States against Minor. The Second Circuit held that the marihuana statute, the marihuana tax statute was for practical purposes, the same as the Narcotic Drug Act involved in Minor that there was no risk of self-incrimination to a transferor and that the transferor of marihuana was not a person inherently suspect of criminal activities and that the profession of transferring marihuana or being involved in marihuana transactions was not an inherently suspect and illegitimate business. This was not a statute designed to close down a criminal activity but rather to regulate a legitimate activity. Briefly, the Marihuana Tax Act statutory scheme consists of an occupational tax provision, series of provisions requiring any transferor of marihuana, anyone who deals in marihuana which is defined as to very broadly and includes selling it or giving away, to register as a dealer, to pay an occupational tax and to keep records his transactions. There is also a transfer tax provision which requires a transferee, a purchaser or acquirer of marihuana to obtain an order from the treasurer of the United States. He must in it pay in advance the tax on the material to be acquired, the tax is either at the rate of $1.00 an ounce or $100.00 an ounce depending upon whether the transferee is himself registered. He pays the tax based upon the amount he intends to acquire. In order for him to acquire that order form, he must place on file with the government prior to obtaining the form and prior to consummating the transaction, his own name and address and the name and address of his proposed transferor as well as the amount of the drug he proposes to transfer. There are numerous exemptions from the order form requirement and as the Court noted in Leary, they are essentially all of the legitimate transactions that are involved in marihuana, transverse by Doctors to patients by pharmacist to costumers pursuant to Doctor's orders, by officials of the government, transactions for export, so that there is left subject to the order form requirement a residual class of essentially of illegal transactions. The information obtained by the order form, he is given copies of the order form are made available to any state or local official who is concerned officially with the enforcement of local narcotics laws. The mere possession of marihuana is illegal in every state of the union with certain very limited exceptions corresponding largely to the exemptions of the order form requirements under Section 4742. The Leary case --
Byron R. White: That you can't get an order form from the secretary unless you show that --
David A. Diamond: No.
Byron R. White: That you're legal under state law, can you?
David A. Diamond: No, any person may obtain an order form. The marihuana statutes differ radically from the narcotic statutes in this regard. Any person desiring to acquire an order form may acquire it if he is a so called legitimate purchaser, one who is registered under the occupational tax sections. He pays $1.00 per ounce. If he is an illegitimate purchaser, one who is not registered, he pays $100.00 an ounce, but any person off the street who wants to acquire marihuana for smoking or any other purpose may acquire an order form.
Thurgood Marshall: Pay $100.00 an ounce?
David A. Diamond: And pay $100.00 an ounce, yes sir. The Leary case, Leary case involve such a -- such a purchaser. The Leary case held that the marihuana statute, the transfer of provisions as applied to an unregistered transferee, who was Leary, applied to a person inherently suspect of criminal activities and existed in an area permeated with criminal statutes particularly by virtue of the exposure of the information contained on the order form to the state authorities. It held therefore that the privilege against self-incrimination applied. The Court in Leary also refused to severe the statute so as to make the order form provision applicable but withdraw the information from the perusal of the states. It also applied the privilege against self-incrimination to prospective act since in the Leary case, the purchaser acquired the order form prior to time that any paying transaction was consummated. The petitioner here contends that the Leary reasoning applies fully to his -- to the position of a transferor of marihuana. Under the same order form procedure, the acts required of the transferor in order to comply with the provisions of 4742 yield an even greater danger than they did to the transferee of marihuana. I review briefly the acts which we consider to constitute the self-incrimination aspects of this thing in terms of the transferor. There are four acts, some or all of which maybe present with respect to any particular transaction in relation to marihuana on the part of the transferor. The act in effect, the act -- I may note again that the name and address of the transferor must be on file with the government prior to the consummation of the transaction. The mechanism provided by the statute is the use of the transferee. The transferee must procure the order form and give the information directly to the government. We maintain however that the statutory scheme envisions the transferee as a conduit for the transfer of the required information to the government, which information demands acts on the part of the transferor incriminating to himself. He must, knowing that the information is to go to the government and that it is incriminating to him provide information.
Potter Stewart: The form is appendix b in your brief?
David A. Diamond: That's correct. The --
Potter Stewart: As you point out, this is a form quite different from the one in the last case. In that, the sellers name is not when it comes from the government, is it?
David A. Diamond: That's correct. In addition, the general structure of the form is a directive to the transferor but --
Potter Stewart: To the seller?
David A. Diamond: To the seller from the government authorizing him so far as federal act is concerned to transfer certain quantity of marihuana to specified transferee. Again, the transferee is the government's conduit for sending this form to the transferor.
Byron R. White: I suppose though, if the buyer demands, goes to a fellow that he thinks is selling marihuana and says give me your name and the seller says sorry, I won't do it, and then the buyer, where this putative buyer finds in that as a sellers name not someone else and puts it on the order form, the seller maybe incriminated, he has incriminated himself, has he?
David A. Diamond: He hasn't at that point but we contend --
Byron R. White: When does he ever as far his name is concerned?
David A. Diamond: The information goes to the government through the hand of the transferee.
Byron R. White: Now, through his hands with, the seller has been incriminated himself. The buyer's information, I don't suppose there is anything that is illegally incriminating as far as the seller is concerned and the buyer furnished some information to the government?
David A. Diamond: No, there's nothing illegal, there's no privilege itself against self-incrimination without the half of the transferee in relation to the transferor's name. However, there are other acts required, assuming that the transferee finds the name independent of the transferor and delivers it independent to the -- independently to the government, and I may note in passing that the name was not revealed so far as this record is concerned to the transferee by the transferor.
Byron R. White: That's -- that was my next question; there is no evidence in this case?
David A. Diamond: No.
Byron R. White: The seller aggregated name to anybody?
David A. Diamond: That's correct. The seller and he --
Byron R. White: -- any order form at all?
David A. Diamond: That's right. The seller and the buyers were strangers, they were introduced by a third party solely on the basis of first names, that is in the record. However, once the transferee has obtained an order form, the transferor must accept that order form. We contend that the act of acceptance is an acknowledgement and an adaptation of the information contained on the order form. The informa -- the order form is an inherently incriminating device when it contains the information that the transferor has sold certain drugs illegally to a transferee, when the transferor accepts that piece of paper, even when, if he were to refuse to accept it, if he were to ask about its existence, if he were to learn of the existence of this piece of paper and then transfer drugs pursuant to it, he would be adopting the information on that paper as his own as being true and valid. The statute requires him to participate to a great extent in the incriminatory act involved in the order form process. It is -- in our mind, it is the same thing as signing a confession that someone else has typed. The information may already be in the possession of someone else but when you take it as your own, you are acknowledging it as true, when it is possible although for practical reasons very unlikely that a transferee might obtain an order form without ever speaking to anyone. Obviously, at that point, nothing has been done by the transferor to incriminate himself. When he accepts the piece of paper, he has enabled the transferee to say when asked, I gave this piece of paper to the buyer and he accepted it assuming that the buyer would tell the truth, we cannot postulate that the statute will be maintained on the basis of the seller's purgery, assuming that the seller would tell that truth when asked, he would be required to say that he accepted this piece of paper. In addition, he is required by the statute to retain the piece of paper which constitutes an additional piece of evidence of his criminal act for two years and to make it available to all law enforcement officials who might come to ask for it in that two years.
Potter Stewart: Now, which precise statute, very statutory provision on the one with the contained in your appendix, this man --
David A. Diamond: 4742.
Potter Stewart: -- convicted of violating 4742.
David A. Diamond: That's right.
Potter Stewart: Which --
David A. Diamond: 4742 (a) is the general requirement that you may not transfer marihuana except pursuant to an order form. The provisions --
Byron R. White: Do you assume that there is anything wrong with that, this is a provision of the statute?
David A. Diamond: I -- insofar as the order form, the mechanism for the order -- for obtaining the order form is provision (c) and (d) of the -- of 4742 and insofar as the order form requires that information be on file which is incriminating at the time of --
Byron R. White: You say that the amendment bars the government prohibiting sales except on other client, except that has said?
David A. Diamond: The use of an order form by itself, no. If this were to be an order form of the sort contained in the narcotic -- narcotic drug statute, then we would feel that the buyer was incriminated, I'm sorry, the seller, the transferor would be incriminated by requiring that such a statute exist, such an order form exist. The theory of it in the narcotic drug case is I believe that the act, the order form requirement is to see to it that unlawful people do not obtain narcotic drugs, that result is perfected by requiring the name and address of the buyer, of the transferee to be in the hands of government prior to the sale or of issuing order forms only to legitimate people. But in this case, the form does require that the name and address of the transferor be in the hands of government prior to sale.
Thurgood Marshall: Suppose against the order form and fills it out, has he incriminated himself if he does nothing more than that?
David A. Diamond: The transferor does not obtain the order form and does not fill it out. The transferee --
Thurgood Marshall: Right.
David A. Diamond: -- obtains the order form and fills it out.
Thurgood Marshall: And if he takes the order form and fills out and does nothing more.
David A. Diamond: Has the transferor incriminated himself?
Thurgood Marshall: Has either, have either been incriminated?
David A. Diamond: If --
Thurgood Marshall: Incrimination comes when you sell the drug.
David A. Diamond: The --
Thurgood Marshall: Is that right?
David A. Diamond: The information in the hands of the government directs the attention of the government to a group of people who are suspect and very strongly suspected of criminal activity. Even the focus of their attention --
Thurgood Marshall: And if they don't engage in the criminal activities, are they injured?
David A. Diamond: They would presumably then be able to refute the implication that arises from the existence of the order form. It some -- seem some question is to whether the --
Thurgood Marshall: Well, how is -- how is the filling out of the blank in and off itself without more incriminating?
David A. Diamond: I think that there's a very heavy presumption that that blank would not be filled out where the transaction not going to be completed. Among other things, the tax must be paid prior to the filling out of the form, that is at the time, you cannot obtain the form without paying the tax.
Thurgood Marshall: The use of phrase we sometime use, what triggers all of it is this buying or selling of the marihuana.
David A. Diamond: It is all, yes, if one were not interested in buying or selling marihuana, one would not deal with this forms at all. However, the danger, the suspicion intended by the existence of the form is such that the -- I think the existence of the form would cause the attention of the authorities to be focused very closely upon this people.
Warren E. Burger: Well, isn't it the paper, the form, the filling out of the form plus and overt act that makes the criminal offense here?
David A. Diamond: The offense is the overt act or the overt act in the absence of the piece of paper.
Warren E. Burger: But as Justice Marshall just suggested, the piece of paper alone filled out and signed doesn't incriminate the man at all, does it?
David A. Diamond: If the transaction were to have gone no further than that, then I believe it would be incriminating and that the statute provides that the piece of paper maybe used as evidence and existence of the piece of paper may serve to bring into initiation the process of prosecution in relation to a drug, and now presumably the transferor who did not transfer but is simply named as a transferor would be able to testify that he did not in fact ever commit any act of this sort and were he to be believed than --
Warren E. Burger: Would there be any occasion for him to testify about his good if all he did was fill out the form?
David A. Diamond: The transferor does not fill out the form in this case, the transferee only.
Warren E. Burger: I'm talking about the transferee now. The transferee just fills out the form and Justice Marshall's hypothetical and puts it in his -- the drawer of his desk, he has committed no offense has he?
David A. Diamond: This Court in Leary considered that the correlation between the act of filling out the form and the act of selling or buying the drug was so close that it viewed the existence of the form as being evidence of a recent -- of being a recent transferee of marihuana, even though the existence of the form did not necessarily imply that any transaction had been completed at all.
Potter Stewart: This what we have is in appendix b as the -- is what has issued by the treasury department?
David A. Diamond: That's correct.
Potter Stewart: And in order to get that issued to him, a prospective transferee, a would be transferee as to make an application for it I assume?
David A. Diamond: That's correct.
Potter Stewart: And in the application, does he give the name of the prospective vendor?
David A. Diamond: Yes he does. That --
Potter Stewart: What was to prevent him from just putting George Washington or Abraham Lincoln or Charles 1856 in there?
David A. Diamond: Nothing, except that I believe that one has to assume that the process is going to be -- if it is to be followed, it's going to be followed as required by the statute. As a matter of fact, nothing is to prevent him from skipping the order form completely but one would assume that he in obeying the law, is going to do what the statute says.
Potter Stewart: Who is eligible to make an application for --
David A. Diamond: Any person, any person may acquire.
Potter Stewart: Any person? And --
David A. Diamond: That's right.
Potter Stewart: Does he get -- does he give the name or any registration number or anything else --
David A. Diamond: If he has --
Potter Stewart: -- of the perspective vendor?
David A. Diamond: He gives the name and address of the vendor, of the proposed vendor.
Potter Stewart: What in the world it's preventing from putting down their marihuana on Richard M. Nixon or --
David A. Diamond: Nothing, nothing.
Potter Stewart: Edmond Musky.
David A. Diamond: Nothing.
Potter Stewart: And so, where is the -- and that's not self-incrimination, is it if he's incriminating anybody, its Edmond Musky.
David A. Diamond: I think that with --
Potter Stewart: As a potential perspective possible vendor?
David A. Diamond: That's correct but I think that we have to assume that this is a process that people will follow if they are going to follow it all in the way that it's required.
Potter Stewart: Why is it required? I mean why -- the requirement is there that you put down anything except any name and address of somebody?
David A. Diamond: That's right. Now, if the propose transferor accept this order form, he is acknowledging the truth of the information contained on the order form, that is that he, the perspective of the proposed transferor has transferred to this transferee the specified quantities of marihuana. At that time, he has committed a self incriminatory act. In addition, he must retain that form for two years to serve as further evidence. In connection with obtaining the order form, the Leary case held that a transferee need no -- an unregistered transferee is protected against obtaining the order form because it is self-incriminatory for him to do so. This makes it very unlikely that an illegal transferee will obtain the order for to give to a transferor unless the transferor insists upon it. We maintain that if this statute is to be taken as written and interpreted by this Court, that a major part of the motivating power for getting the information into the hand of the government who will use it to the detriment of the transferor must come from the transferor himself. A transferor -- a transferee under the present state of the law is very, very unlikely to procure an order form unless the transferor simply insists upon it. It cannot under these circumstances say that the transferor is a passive party who need only inquire whether the order form exist. If the order form is to exist, it must be because the transferor brings it about that it exist even though he himself does not ever go the treasury department and sign his name on a piece of paper.
Potter Stewart: Well, that's right, I don't understand and that's what prompted my question of the moment ago. What's the transferor got to do with this?
David A. Diamond: He must see to it that the piece of paper exist when the order -- when the transaction is completed. If he does not see to it, it is very unlikely either because the transferee will be incapable of doing it because he does not know the information, that is the transferor has not given him his name and address or because he does not desire to do it. It is very unlikely for either of those reasons that a transferee will obtain the order form. If an order form is to come into existence, it must be because the transferor has provided the primary motivation for its coming into existence. He must affirmatively act to his own detriment. The -- we maintain that the self-incrimination comes about through a conduit that the statute has provided. The transferee is in effect the government itself for purposes of dealing with the transferor and procuring the order form. The transferee would not itself would not itself procure the order form if the transferor did not insist upon it. In that way, the transfer -- the transferor must see to his own incrimination with the government. In --
Byron R. White: Can I ask you --
David A. Diamond: Yes.
Byron R. White: The conviction here is for selling without an order form?
David A. Diamond: That's right.
Byron R. White: That proceed an order form? That's all?
David A. Diamond: That's correct.
Byron R. White: Now, if the -- he could not have been convicted for this offense at all if he had received -- if he had received the order form?
David A. Diamond: That's correct, although we maintain that --
Byron R. White: So, if that so, there couldn't be any -- any self-incrimination under this statute --
David A. Diamond: The order --
Byron R. White: -- because he would -- he could never be convicted under the statute.
David A. Diamond: The order form would not have been obtained unless he saw it that it was obtained. If he had insisted that the --
Byron R. White: Well, that isn't really quite so is it? A lot of buyers know the names of their sellers independently.
David A. Diamond: In this particular case he did not and it now true that buyers are not --
Byron R. White: But the seller didn't furnish the name, a third party furnished the name.
David A. Diamond: The name was never furnished.
Byron R. White: Alright, so that seller never incriminated himself at all?
David A. Diamond: The seller never incriminated the buyer because buyer did not --
Byron R. White: No, the seller never incriminated himself --
David A. Diamond: But, but --
Byron R. White: On the facts of this case.
David A. Diamond: But, but that's not only --
Byron R. White: But if he had received an order form with his name on it, he automatically insolates himself from conviction under this statute.
David A. Diamond: But he exposes himself to conviction under all the states statute, whatever state statute is relevant and to another provision of the statute which makes it illegal for him to be a transferor of marihuana without being registered. Our -- the petitioner here was an unregistered transferor and he is an inherently suspect person. If his name appeared on a piece of paper in the hands of the government as a transferor, he would be immediately a suspect. If he saw to it that the transferee procured such a piece of paper, he would be seeing to his own incrimination in the eyes of the government.
Byron R. White: But why should he be able to say this one, he never -- when there was never an order form in this case?
David A. Diamond: If there had been an order form, the incriminatory act would have been completed. As soon as he received the order form or learned of its existence and then transferred marihuana pursuant to it. There was no order form in the Leary case either and there were no registration forms in the Marchetti, Grosso, and Haynes cases. The point is that filling out the order form or acting pursuant to the order form in this case is in itself the Incriminatory Act. In Leary, the incrimination that the dangerous incrimination was at the hands of the state, not at the hand of the federal government and the information came to the state authorities, not from Leary himself but from the federal government. Leary provided the information only to the federal government who then provided it to other people who would incriminate, who would indict and convict Leary, this was dealt to be too dangerous. I would like to make a distinction between the Narcotic Drug Act and the Marihuana Act. Under the Marihuana Act, there are virtually no legitimate users of marihuana. There were in the last published reports 80 registered people, people who could deal legitimately with marihuana. I'm informed by counsel for the government that that number is now approximately 160, but it compares insignificantly to the approximately 200,000 registered people involved in the narcotic drug trade, this is an illegal activity and this is a set of statutes intended to cause people to expose themselves as being dealers in illegal activities. I'll save the remainder of my time for rebuttal.
Warren E. Burger: Thank you Mr. Diamond. Mr. Connolly?
Joseph J. Connolly: Mr. Chief Justice and may it please the Court. In the light of the preceding discussion that the principles applicable here and in Minor, my brief submission will focus on the government's view of the statute in this case and our response to the central features of petitioner's argument. The petitioner contends that Section 4742 (a) which simply requires that he receive from his transferee an order form which to the transferee shall have obtained, in some way compels him to make incriminating disclosures to the government. We believe that his contention seeks to establish much more than the words of the statute where its operation in fact can support. The offense -- the offense defined by Section 4742 (a) does not make criminal, petitioners failure to report any previous misconduct to the government and orders the order form provision require him to make incriminating disclosures to the government in order to legalize his subsequent conduct. The transferor is neither required nor entitled to apply for an order form from the district director. The only duty which this statute imposes on the petitioner is to transfer marihuana only to those persons who have made their acquisition lawful by paying the tax and acquire and receiving an order form. The statute punishes not a failure to disclose information but a transfer, a transfer to someone who does not demonstrate that he has complied with federal law. It is our position that the statute on its face and in practice can be complied with without the transferors disclosing any information at all. Petitioner's argument to the contrary is found in what he asserts to be the practical consequences of the statute. He knows that the transferee must provide the name and address of the transferor in his application for an order form. He then assumes that the transferee can obtain that information only from the transferor himself. This assumption is essential to the success of petitioners argument for it provides the aspect of self-incrimination which is lacking on the face of the statute, unless it can be said that the transferee necessarily must obtain that information from the transferor. It cannot be said that compliance with the statute infringes the transferor's right to refrain from making incriminating disclosures. The petitioner offers no support for this assumption in which his argument rests. If he is relying on common experience to justify the assumption, such experience in our view refutes the assumption as evidence by the many cases like this one, in which a purchaser who may previously be unknown to a seller of marihuana is introduced to him by a friendly intermediary who can supply the name of the transferor. We also think it is appropriate to point out that this case seems to be a most unlikely vehicle to establish as a constitutional principle. The doctrine that a transferee of marihuana can learn the name and address of his seller only from the seller himself. The facts in this case show that some 10 days before the transaction on which he was convicted, petitioner sold a quantity of marihuana to narcotics agents in the kitchen of his apartment. Petitioner would have the Court conclude that there was no way except from the petitioner himself that the agents could have learned his name prior to the second transaction, who we think it needs no argument, the persons who sell marihuana in the kitchens of their homes are poorly situated to conceal their names and addresses. By basing his argument on assumptions as to the practical effect of the statute, the petitioner emphasizes the critical difference between this case and Leary and it's antecedes. In each of those cases, the statute on its face imposed on the petitioner himself an obligation to supply certain information. It was only one way the petitioner in those cases could comply with the statute by supplying the information himself. In the present case, it is clear that the transferor can comply fully and literally with a statute where he receives and order form for which he gave no information at all. In his oral argument, the petitioner makes the additional contention that even if he did not supply any information to the transferee to enable the transferee to obtain the form. That the mere fact that he receives an order form thus obtained by the transferee is an incriminatory act that is I think the language that he uses, that he adopts the language on the form. We submit in response to that contention that there is no incrimination, there is no disclosure upon receive of the form at all. The petitioners intended --
Potter Stewart: Whatever, would it be an offense under 4742 (a) for a man named John Smith to sell marihuana to somebody pursuant to order form in which the top name was Robert Jones?
Joseph J. Connolly: I inquired of lawyers more knowledgeable with the operation of the statute considering that question, and the answer is not entirely clear. If you look at Section 4742 (d) in the statute, the third sentence says the original shall in turn be given by the transferee to any person who shall in pursuance thereof transfer marihuana to him. Thus, the statute on its phase does not prohibit a transferor from making a transfer pursuant to a form in which his own name is not listed as the transferor and we -- as far as I know and I ask there has never been any prosecution brought asserting that -- that that's a violation of the order form requirement.
Potter Stewart: Highly unlikely, casual situation except that it does go I think to the petitioner's argument --
Joseph J. Connolly: That's right, if in the real world, in the lawful world of marihuana ordered forms, it's unlikely that a transferee applying for a lawful order form will change his mind and submit it to some other supplier of marihuana, so we don't often see that but I think that the government can confidently assert the statute on its face would not preclude a transferor from transferring if the order form did not -- was not addressed directly to him. This I take it would exclude the situation in which the transferor was a prior party to a misstatement on the application for an order form, but it think that's far field of what you were asking.
Byron R. White: Who's the -- the duty to put the sellers name on is placed on the secretary, isn't it?
Joseph J. Connolly: That's right. The district director puts the name on the form and he learns the name because it appears on the transferee's application.
Byron R. White: And so if a seller sells marihuana pursuant to an order form with someone else's name on it, you say he is -- he can or cannot be prosecuted under this section.
Joseph J. Connolly: It's doubtful whether he can be prosecuted under this section. The statute appears to contemplate that a transferor may make a lawful transfer on the basis of an ordered form not addressed to him.
Potter Stewart: Of course the statute itself says that it shall be unlawful for any person to transfer marihuana except in pursuance of a written order. Now, if that order is not directed to him but actually is directed to somebody with a name of John Smith, that's not in pursuance really of a written order. Giving the words ordinary meaningless --
Joseph J. Connolly: But that's the --
Potter Stewart: An order to somebody else and therefore is not in pursuance of a written order just as I say implicitly in the statute.
Joseph J. Connolly: It's not clear on either side.
Byron R. White: So what do you day about, let's assume he can be prosecuted for that, what do you say to the general proposition that requiring forbidding him to sell unless he acknowledges who he is violates the Fifth Amendment. Does it violate the Fifth Amendment to be required to say what your name is?
Joseph J. Connolly: No, I don't believe it does, not to a -- not to his transferee in all events. He makes no disclosure to the government incident to accepting form which --
Byron R. White: Well, he does that he doesn't acknowledge who he is. I mean if he sells and if he and as the law says you can only sell if your name is on the order form and his sell, hasn't he admitted who is? I am John Smith, not Brown And somebody else?
Joseph J. Connolly: Yes, he admits it --
Byron R. White: Well, what's your response then? Is that violates the Fifth Amendment or not?
Joseph J. Connolly: No, it does not violate the Fifth Amendment.
Byron R. White: Why not?
Joseph J. Connolly: He's not making a compelled, he's not compelled to disclose information to the government at that point. He gives -- if he want --
Byron R. White: Well, he is if he wants to sell marihuana because its a federal lawsuit if you sell without the form with your name on it, you go to jail.
Joseph J. Connolly: If that he can comply with 4742 by doing no more than receiving a form on which the transferee has secured, has instructed the secretary to put John Smith's name on it. So to -- would there be a violation to the Fifth Amendment if Mr. Straus came up to me and said, I hear that I can purchase marihuana from Joe Connor, are you Joe Conner and I say yes. I haven't -- I can't see whether there's any compelled self-incrimination in that case.
Byron R. White: What if the seller and the buyer didn't say anything to him, he just comes in and hand in a piece of paper which says -- which is an order to -- for a certain amount of marihuana and the man takes it and says okay and gives him marihuana?
Joseph J. Connolly: Oh, is there anything in your question which suggests that the transferor upon being presented with that form may feel himself compelled to make a transfer of marihuana?
Byron R. White: No, no. I'm just saying that that inherent in his selling, inherent and his living up to the statute as disclosing that his name is John Jones, or admitting that his name is John Jones. He may not have -- the information may not have originated from him. He may never have said that his name is John Jones, but selling the marihuana in pursuant to this order form under the law is an admission by him that he is really Jones, not somebody else, isn't it?
Joseph J. Connolly: Yes.
Byron R. White: And it is --
Joseph J. Connolly: I'll be willing to interpret the transaction.
Byron R. White: Now, is that -- is that violate the Fifth Amendment?
Joseph J. Connolly: No it does not because there is no compulsion to disclose his name to the government, incident to that transaction.
Byron R. White: Well, that should have been on the Leary then.
Joseph J. Connolly: In our view of the practical consequences of the illicit viewings in marihuana in any case in which an order form maybe tender to an illicit transferor like petitioner, the most reasonable assumption contrary to petitioner's assumption is that none of the information was supplied for that purpose by the transferor. It is to be sure difficult to assess assumptions in either side of the case in this area because it is so very unlikely that an illicit transferor will ever be presented with an order form. The 160 registered handlers of marihuana have no reason as far as we know to acquire marihuana on the illicit market. The far more numerous on registered consumers are hardly likely to secure order forms, the cost of incriminating themselves and paying a $100.00 tax, when their failure to pay the tax and to acquire marihuana pursuant to an order form is not punishable under Leary. So it's quite easy to say that whether -- suppose there is a transferor -- transferee who wants to acquire marihuana from an illicit seller and who is willing to acquire an order form for that purpose, then it's very difficult to translate that supposition into a factual hypothetical which makes sense in the real world. Even if we're willing to accept that supposition however and to accept the further doubtful premise that a transferee of marihuana could acquire an order form, that is whether the district director lawfully could issue an order form addressed to an illicit transferor.
Thurgood Marshall: Is a $100.00 an ounce your idea of a tax?
Joseph J. Connolly: Yes, it is a tax.
Thurgood Marshall: For marihuana?
Joseph J. Connolly: It's a tax from the transfer of marihuana.
Thurgood Marshall: Of a one ounce?
Joseph J. Connolly: One ounce, it's a prohibitive tax.
Thurgood Marshall: Thanks for the prohibited.
Potter Stewart: Is anyway illegible to apply for order form? I understood the answer to be yes?
Joseph J. Connolly: Yes, it is. That is under Leary, a --
Potter Stewart: Forget about Leary, just talking about the statute, just forget about it.
Joseph J. Connolly: Well, Leary interpreted the statute is contemplating, that anyone could pay the tax and get an order form.
Potter Stewart: Construe the statute as so provide?
Joseph J. Connolly: That's right.
Potter Stewart: And the -- then so person not need be registered in any way to be a purchaser?
Joseph J. Connolly: That's right.
Potter Stewart: That a person needs to be registered to be a lawful seller?
Joseph J. Connolly: That's right. And on that basis, we suggest in our brief that there is a serious question whether the district director will or could issue an order form to Peter Straus to acquire marihuana from Joseph Connolly. When Joseph Connolly's transfer will be unlawful under another provision --
Potter Stewart: Or what in fact happens when an application comes in? Does the treasury check the name of the proposed transferor for the proposed seller to see if that is one of the 160 registered sellers in the country?
Joseph J. Connolly: I believe -- I believe that that inquiry is made but there are -- there is not a great volume of marihuana order form in the state, it might be a very difficult thing to do with under the narcotic statute would it be 400,000. But under the marihuana law, some checking's may.
Potter Stewart: If there's only a 160 legal sellers of marihuana in the country with or without them having -- who are qualified eligible to sell marihuana legally under any conditions wouldn't be much of a trick to check the name on the application of the proposed buyer, the name that he gives of the seller against that list of a 160, is that done or isn't it done?
Joseph J. Connolly: That is done. If it is as far -- the question whether, what's the district director is to do in a situation which he finds that the proposed seller is not registered apparently hasn't come up because there hasn't been an application for an order form to acquire marihuana from --
Potter Stewart: For the counts for the fact that there are as many as 160 lawful sellers, registered sellers of marihuana in the United States, does it have medicinal uses?
Joseph J. Connolly: Present thinking is that it does not have medicinal uses but there's still a great deal of experimentation being conducted in it, about a 140 of the 160 registrants are Doctors in private practice and Doctors in research facilities who are seeking to determine conclusively whether it does have.
Potter Stewart: Well, I can understand how those people would research positions might be purchasers but I don't see why there could be sellers, why they would want to be sellers.
Joseph J. Connolly: They might not be sellers except among research institutions, they might be transferors and it's broad to say --
Warren E. Burger: -- selling, is it as selling, transferring and several other terms.
Joseph J. Connolly: The statute which prohibits unregistered trafficking in marihuana has the list of various activities dealing and selling, administering and giving away. Section 4742 which deals and Section 4741 which imposes the tax speaks of a transfer which that statute defines as any exchange of possession except --
Potter Stewart: So that would include possession giving it to a patient or a research center, that would be a transfer?
Joseph J. Connolly: That's right. That is a transfer under the statute exempted fro the order form and tax and the transfer tax requirements. To continue on with the question whether the transferor is likely to supply any information to the transferee in order to enable the transferee to get an order form, we think that any assumption along those lines contradicts the transfer, the seller's basic instinct to avoid having this transaction come to the attention of the government at all. It's virtually impossible for us to have conceived of the situation in which the transferor would cooperate with the transferee who would express an intention to get an order form. We would not expect Mr. Diamond to deny that for an illicit transferor and petitioner's possession in order for him is just about the last thing that he wants. And if the transferee does produce an order form which he can might have obtained without the knowledge of the transferor, we believe that the transferor undoubtedly would refuse to complete the transaction pursuant to that form because it would be subject to intense scrutiny. If that is true, then we see no reason to believe that an illicit transferor would as a means of complying with the statute provide any information to his transferee but in short, we conclude that this statute does not impose upon the transferor of marihuana any duty to make an incriminating disclosure which is then transmitted to the government. I think that's the significant difference between this case in Leary that whatever characterization you might want to give to the transferor's consummating the transaction pursuant to this document, that act involves no matter of communicated by him or by the transferee to the --
Byron R. White: What if the law said that no sellers shall sell on an order form unless he writes his name on the order form? Would that make any difference? I've guess -- I'd guess it wouldn't under your argument.
Joseph J. Connolly: No. It would -- no, it wouldn't make any difference if --
Byron R. White: And still has the choice of not of -- does not sell it?
Joseph J. Connolly: No, well, -- that's one choice which we would -- we'd like to preserve whatever is left of that argument.
Byron R. White: There isn't much after Leary?
Joseph J. Connolly: But the more important matter is that it's not communicated. That he may comply with the statute, he may have full and literal compliance with this statute without any communication.
Byron R. White: But if the law said you don't sell without an order form unless you write your name on it before you sell it then give a copy to the buyer, you would still say no violation of Fifth Amendment? Or would you say that --
Joseph J. Connolly: I don't the -- that's a bit harder case because you give it about --
Byron R. White: So you think is this harder? You think there's a difference between that case in just receiving the form and symbolically saying yes I'm so and so.
Joseph J. Connolly: I -- my position stands. I don't think that involves the Fifth Amendment violation, regarding the more you get me involve in communication directly to the buyer then I'm worried about the next step but I don't believe that there's any Fifth Amendment violation because in that situation I can't see any communication, I can't see any communication in this case. What incriminates the transferor in this case is not anything that he says but what he does by selling marihuana, that's what subjects him to possible prosecution under the law and it's not on the basis of any disclosure which is made incident to this transaction.
Potter Stewart: And in this say you probably already covered this but I want to be sure I get a distinction. In this case, it is not an obligation of the transferor to send in an copy of the order form to the government, it's only its obligation to keep it on -- keep it in his possession subject to an inspection for a period of time.
Joseph J. Connolly: That is the only statutory obligation. You point out that there is difference between what the regulations contemplate under the narcotics laws and what the statute contemplates here and for the reasons which we set forth in our brief. We believe that --
Potter Stewart: I don't make any difference anyway because that's a separate regulation statute or so. But there is that difference between this investigation?
Joseph J. Connolly: Yes sir. Thank you Mr. Chief Justice.
Warren E. Burger: Thank you Mr. Connolly. Mr. Diamond, you have about three minutes left.
David A. Diamond: May it please the Court. With respect to Mr. Justice White's question, I believe that acceptance of the order form does more than acknowledge the man's name, that acknowledges the fact that he has transferred a stated quantity of marihuana and if he is an illegal transferor as was the petitioner here and is -- as would be virtually anyone prosecuted under this act, he would be acknowledging that he has broken the law.
Potter Stewart: But to whom does he acknowledge it?
David A. Diamond: He must acknowledge it to any person who comes to inquire of any official who comes to inquire about this matter. I believe that he acknowledges it --
Potter Stewart: When he gives money, when he receives the order form?
David A. Diamond: That's right --
Potter Stewart: Under your -- under your submission he acknowledges that he has then sold a quantity of marihuana?
David A. Diamond: That's right, that is correct.
Potter Stewart: But he's acknowledge it at best only to the -- only to the buyer not to the transferee that -- who is not the government?
David A. Diamond: He has put himself in the position of being required to acknowledge it to the various state officials who come around as a result of that order form.
Potter Stewart: Well, because that's of a separate obligation to keep the order form in his possession on file?
David A. Diamond: I believe that it is the obligation to which this statute looks, that is the purpose of the buyer's name on the order form is to deal with the second purpose stated in the legislative history of this act, that is to expose all details of marihuana transactions to the scrutiny both of the federal and state officers. If this -- if the purpose of this transfer of provision was only to prevent transfers to unlawful people, the buyer's name would be irrelevant. The purpose is to expose the existence of the seller as well as the buyer to all scrutiny which may follow the coming into existence of the order form. I believe that there cannot be any segregation of this statute --
Byron R. White: Do the statute requires him to disclose this information to anybody who comes around?
David A. Diamond: To any official of the state, local, or federal official who comes around, he must produce his copy the order form. It would be a frivolous I think for him to say something like at that point he need not expose it, there would be no purpose in his having to take it in the first place if he didn't have to display it when the officials come around since this serves more than the valid -- possibly valid purpose of seeing to it that these drugs go only to a legitimate purchaser. They see to it that the seller is also exposed to official scrutiny and that -- that is done by seeing to it that he maintains a copy which he reveals to appropriate --
Byron R. White: Do you say the law says to him if you want to sell any narcotic which maybe legal under federal law but illegal under state law, the federal law tells you that you must make a record of this sale illegal under state law, preserve it and then a state official would ask you for the record, you got to disclose it?
David A. Diamond: That's correct. We feel that's an integrated, that's fruition of the entire buyer -- the entire seller information of the transfer order provisions of the marihuana act.
Warren E. Burger: Let's cut that in pieces now. Suppose he have the record but when the state officer called on him and ask for its exhibition, he simply stood on his claim of the Fifth Amendment and decline to do it and proceeded to test it out?
David A. Diamond: I think that that would be rendering the entire transfer provisions pointless. There is no point to him taking the order form at all since the buyer part of it is already taken care of by the buyer's name if the seller's point is to have any purpose, it is to expose and reveal the seller if the seller were to decline to disclose the order form and he were sustained on that, there would be no point in making him take the order form in the first place.
Warren E. Burger: And are you suggesting that the federal government has no legitimate interest in knowing the sources independent of the prosecutorial aspect that simply knowing the flow of the material?
David A. Diamond: They perhaps do but they may not make the man himself, the man incriminate himself in relation to that legitimate interest. They require him to register and maintain records of the different sort and under different provisions under this law and those provisions are perhaps valid but they cannot then require that he in effect commit another crime by refusing to reveal that he has violated the first position, the first provisions. We feel this case comes directly under the Alberts and Marchetti very line. In addition, the order form are all used as evidence. The statute describes it as such. Thank you Your Honor.
Warren E. Burger: Thank you Mr. Diamond. Mr. Diamond and Mr. Connolly, we thank you for your submission. The case is submitted.