United States v. Ralph A. Levy, Maurice Roland Levesque v. United States of America, David L. Monosson v. United States

428 F.2d 211

• Court: Court of Appeals for the First Circuit
• Decided: October 12, 1970
• Docket: 7439_1
• Status: Published

Opinions

WOODBURY, Senior Circuit Judge.

These three appellants were separately indicted, tried, convicted and sentenced in the United States District Court for the District of Massachusetts for selling marihuana in violation of the Marihuana Tax Act. Title 26 U.S.C. § 4742(a). At first they contended that the statutory obligation to sell marihuana only pursuant to a written order on an official order form on which the name of the seller appears violated their Fifth Amendment privilege against self incrimination. In support of their contention they relied upon Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889; Grosso v. United States, 390 U.S. 62, 88 S.Ct. 709, 19 L.Ed.2d 906; Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923, all decided in 1968, and Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). But § 4742(a) was held immune to attack on Fifth Amendment grounds on December 8, 1969, when the Supreme Court of the United States handed down its decision in Minor v. United States (Buie v. United States), 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283, wherein it distinguished the Marchetti, Grosso, Haynes and Leary cases and affirmed a convicviction for selling marihuana in violation of the section saying: “There is no real and substantial possibility that the § 4742(a) order form requirement will in any way incriminate sellers for the simple reason that sellers will seldom, if ever, be confronted with an unregistered purchaser who is willing and able to secure the order form.”

Thereafter by leave of this court the appellants filed a supplemental brief challenging the constitutionality of § 4742(a) on a different ground.¹ They now say that the section has no legitimate relation to the raising of revenue or to the control of interstate or foreign commerce. They say that it is only a sham tax statute but actually a penal statute falling within the police powers of the several states and therefore in an area forbidden to the federal government by the Tenth Amendment which provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

It is true that the Court in Buie did not notice the existence of any Tenth Amendment question with respect to § 4742(a). But we can hardly assume that the Court in affirming Buie’s conviction under that section overlooked or ignored a possible Tenth Amendment infirmity. Indeed it is evident that the Court neither overlooked or ignored the Tenth Amendment in Buie for the two Justices who dissented in Minor v. United States, decided in the same opinion with Buie, wherein a conviction for selling heroin in violation of Title 26 U.S.C. § 4705(a) was affirmed, mentioned that Amendment in their dissent. Their dissent in Minor must have alerted the other members of the Court to a possible Tenth Amendment question in Buie. The obvious conclusion from the opinion in Buie is that the Court must have thought that any possible Tenth Amendment infirmity in § 4742(a) was too insubstantial to warrant mention.

The judgments of the District Court are affirmed.

1 . We do not pause to consider the Government’s suggestion that we should remand this tardily raised constitutional question to the District Court before deciding it ourselves. The question presented is purely one of law which can be decided now on the present records as well as later after further proceedings in the court below.