The opinion of the court was delivered by: MARSH
The matter before the court is a motion under Rule 35, Fed.R.Crim.P., by the defendant, James G. Martin, for correction of sentence. Counsel was appointed and a hearing was held.
The defendant was indicted in four counts for violations of § 174 of Title 21 U.S.C.
and § 4704(a) of Title 26 U.S.C.
The first count of the indictment charged that on or about January 20, 1966 in Pittsburgh, Pennsylvania, the defendant in violation of 21 U.S.C. § 174 did unlawfully possess 1.569 grams of heroin, a narcotic drug, knowing that it had been imported into the United States contrary to law. The second count recited the same facts except it charged that 5.637 grams of cocaine had been knowingly imported contrary to law in violation of 21 U.S.C. § 174. The third count charged that on or about January 20, 1966, at Pittsburgh, Pennsylvania, the defendant purchased 1.569 grams of heroin, a narcotic drug, other than in or from the original stamped package in violation of 26 U.S.C. § 4704(a). The fourth count recited the same facts except that 5.637 grams of cocaine was the narcotic drug purchased.
The evidence at the defendant's jury trial revealed that on January 20, 1966, certain Pittsburgh police officers and an agent of the Federal Bureau of Narcotics were in the course of their duties in a house located at 6965 Frankstown Avenue, Pittsburgh, Pennsylvania. While present in the house, there came a knock at the back door. The door was opened by one of the police officers and the defendant stepped into the kitchen. Upon seeing the officer, the defendant rushed past him and out of the kitchen, in the process throwing from his hand into the pantry five small wrapped balloons, two pieces of folded aluminum foil, and a folded piece of brown paper. These items were retrieved by one of the officers and the defendant was placed under arrest. A search of the defendant revealed a cigarette pack containing twenty wrapped balloons and a wrapped piece of brown paper. The items which had been thrown into the pantry and the items discovered on the defendant's person, contained a white powdery substance. Analysis showed this to be heroin and cocaine. There were no tax stamps on any of the items.
The jury found the defendant guilty as charged in all four counts. The defendant was sentenced to two concurrent terms of ten years under counts one and two, and to two concurrent terms of ten years under counts three and four. The sentences imposed on counts three and four were to run consecutively with the sentences imposed on counts one and two.
The defendant's conviction was affirmed on appeal, United States v. Martin, 386 F.2d 213 (3d Cir.1967), and certiorari was denied by the United States Supreme Court, Martin v. United States, 393 U.S. 862, 89 S. Ct. 142, 21 L. Ed. 2d 130 (1968).
In his motion the defendant urges that three of the 10-year sentences be vacated. He contends that his possession of the narcotic drugs was a single act and only could give rise to one offense. As a result the defendant takes the position that separate and cumulative sentences should not have been imposed. He further contends that the cumulative nature of the sentence violates his constitutional guarantee against double jeopardy.
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 ...