Heflin v. United States, 358 U.S. 415, 79 S. Ct. 451, 3 L. Ed. 2d 407 (1959); Hackett v. United States, 348 F.2d 883 (6th Cir.1965).
We shall first consider defendant's contention that only one offense arose out of his conduct.
The possession of heroin formed the basis for the charges in the first and third counts and the possession of cocaine formed the basis for the second and fourth counts. We think that under the facts and circumstances that exist in this case, each specific narcotic drug cannot be the basis for a separate count. The defendant was in possession of both narcotic drugs at the same time and at the same place.
The third and fourth counts pertain to violations of 26 U.S.C. § 4704(a).
This section makes it unlawful, inter alia, to purchase narcotic drugs except in or from the original stamped package; and possession of narcotic drugs without tax stamps is prima facie evidence of a violation.
The section uses the words "narcotic drugs"; it does not differentiate between or specify types of narcotic drugs.
Because of this we think that this section cannot reasonably be interpreted to make it a separate offense to purchase, etc. each kind or type of narcotic drug. Moreover, in the absence of actual proof of purchase, etc., the section permits mere possession to be prima facie evidence of a violation. In our judgment this statutory aid cannot be construed to mean that possession of two or more different narcotic drugs at the same time can be prima facie evidence of two or more separate purchases. To do so would be a denial of due process. See: Leary v. United States, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969).
In this case the possession of the narcotic drugs by the defendant was the essence of the violation of this section. There was no proof of any actual purchase or that each drug was purchased in a separate transaction. Therefore, it is our opinion that there was only one violation of 26 U.S.C. § 4704(a).
The first and second counts which charged violations of 21 U.S.C. § 174
also used a different narcotic drug as the basis for each count.
Section 174, 21 U.S.C., uses the words "any narcotic drug" rather than the words "narcotic drugs" as used in 26 U.S.C. § 4704(a). It can be argued that since the word "any" implies singularity in number, a separate offense would be created with respect to each narcotic drug. We reject such a construction based on Bell v. United States, 349 U.S. 81, 75 S. Ct. 620, 99 L. Ed. 905 (1955), where although the Mann Act, 18 U.S.C. § 2421 used the phrase "any woman or girl", transportation simultaneously of two women was held to constitute one violation. See also: Smith v. United States, 211 F.2d 957 (6th Cir.1954) and Braden v. United States, 270 F. 441 (8th Cir.1920). Therefore, based on the same rationale that was applied to the counts relating to § 4704(a), 26 U.S.C., we hold that only one offense was created under 21 U.S.C. § 174.
Our decisions are supported by Parmagini v. United States, 42 F.2d 721 (9th Cir.1930), a case which is substantially in point with the case at bar. In Parmagini the defendant was indicted and convicted of unlawfully selling and distributing a quantity of morphine and a quantity of opium not in nor from the original stamped package. One count of the indictment pertained to morphine and another pertained to opium. The defendant was also indicted and convicted of concealing both drugs knowing that they had been unlawfully imported. There were two counts for these violations, one pertaining to morphine and the other to opium. The evidence showed that there was a single transaction for the sale of the morphine and that the opium was delivered along with it. The court held that the transaction constituted but one offense for selling and distributing although there were two narcotic drugs involved. Furthermore, with respect to the convictions of the concealment of unlawfully imported drugs, the Court held that "where opium and morphine [are] * * * concealed in a single package, only one offense is committed by such concealment regardless of the fact that more than one narcotic drug is contained in the package." Parmagini v. United States, supra, at p. 725.
There has been some criticism of the Parmagini case after Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932), was decided.
However, Blockburger involved distinctly separate sales of the same narcotic drug with each sale forming the basis for a count in the indictment. This is clearly distinguishable from Parmagini and the case sub judice.
Defendant's contention that he had committed but one offense cannot be sustained. It has been well settled since Gore v. United States, 357 U.S. 386, 78 S. Ct. 1280, 2 L. Ed. 2d 1405 (1958), that a single act can give rise to more than one crime.
The double jeopardy position of the defendant is clearly without merit. Gore v. United States, supra.
In light of the foregoing, in our opinion there were only two offenses committed, - one with respect to § 174, 21 U.S.C., and another with respect to § 4704(a), 26 U.S.C. Therefore, the first and second counts will merge and the third and fourth counts will merge. Since only two offenses exist, there can only be two sentences; accordingly, we will vacate one of the concurrent sentences imposed at counts one and two and one of the concurrent sentences imposed at counts three and four. The net effect of this decision leaves the length of defendant's time of imprisonment unaffected since we find that two of the 10-year sentences which are to be served consecutively are valid.
It is to be observed that the concurrent sentence doctrine does not preclude this decision. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (June 23, 1969).
An appropriate order will be entered.