Hastie, Chief Judge, and Van Dusen and Adams, Circuit Judges.
VAN DUSEN, Circuit Judge.
Defendant was indicted, tried, and convicted by a jury on both counts of a two-count indictment which charged that he (1) unlawfully, wilfully, and knowingly did receive, conceal, and facilitate the transportation and concealment of narcotic drugs after those drugs had been illegally imported into the United States, knowing that the drugs had been illegally imported, in violation of 21 U.S.C. § 174; and (2) unlawfully, wilfully, and knowingly did purchase narcotic drugs other than in or from the original stamped package containing those drugs in violation of 26 U.S.C. § 4704(a). At trial, the Government introduced evidence to show that the narcotic drug involved was heroin and the jury returned a verdict of guilty on both counts. This appeal, from an order of judgment and commitment entered on January 16, 1969, which assessed separate fines totaling $5,000. and concurrent prison sentences of ten years, asserts constitutional infirmities in both of the statutes involved, as well as certain procedural errors at the trial.
First Count (21 U.S.C. § 174*fn1)
The defendant first contends that he was denied due process of law by the application to him of the presumption contained in the second paragraph of this statute, providing that inferences of both illegal importation and the possessor's knowledge of same could be drawn from mere possession. He relies on that portion of the Supreme Court's opinion in Leary v. United States, 395 U.S. 6, 29, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969), which invalidated a companion provision (21 U.S.C. § 176a) allowing a similar inference as to marijuana. The answer to this claim is that the Supreme Court has recently considered and rejected it in Turner v. United States, 396 U.S. 398, 90 S. Ct. 642, 24 L. Ed. 2d 610 (1970). There the Court ruled that, with respect to heroin, the presumption of illegal importation, "whether judged by the more likely than not standard applied in Leary v. United States, supra, or by the more exacting reasonable-doubt standard normally applicable in criminal cases," Id. at 416, 90 S. Ct. at 652, was valid since the facts available indicated that all heroin in this country has been illegally imported. With regard to the presumption of knowledge, the Court stated that "'Common sense,' Leary v. United States, supra, at 46 [89 S. Ct. at 1553], tells us that those who traffic in heroin will inevitably become aware that the produce they deal in is smuggled" (396 U.S. at 417, 90 S. Ct. at 653) and ruled that this aspect of the statute was also not proscribed by due process requirements. Defendant's contention must, therefore, be rejected.
Second Count (26 U.S.C. § 4704(a)*fn2)
Clark argues that, having asserted his Fifth Amendment privilege against self-incrimination, he could not be punished for acquiring narcotic drugs without having paid the 1% per ounce regulatory excise tax under the rulings of the Supreme Court in Marchetti v. United States, 390 U.S. 39, 88 S. Ct. 697, 19 L. Ed. 2d 889 (1968); Grosso v. United States, 390 U.S. 62, 88 S. Ct. 709, 19 L. Ed. 2d 906 (1968); Haynes v. United States, 390 U.S. 85, 88 S. Ct. 722, 19 L. Ed. 2d 923 (1968); and Leary, supra. This follows, he claims, since payment of the tax pursuant to the Harrison Narcotics Act*fn3 would have posed a threat of prosecution under various Federal and State laws. He therefore contends that his prosecution for purchasing unstamped narcotics cannot stand.
In evaluating this assertion, it is noted that, while the Court in the above-mentioned Turner case also considered and affirmed the constitutionality of this section, it did so with regard to that provision of § 4704(a) which provides that proof of possession shall be prima facie evidence of a violation, and it did not discuss any self-incrimination problem the section might pose.*fn4 The scheme of the Harrison Narcotics Act was succinctly described in another recent Supreme Court narcotics decision, Minor v. United States, 396 U.S. 87, 90 S. Ct. 284, 24 L. Ed. 2d 283 (1969). There the Court said:
"The Harrison Narcotics Act, 26 U.S.C. § 4701 et seq., applies to various drugs, including heroin. Dealers must register and pay an occupational tax, 26 U.S.C. §§ 4721-4722; producers or importers who sell must purchase stamps and affix them to the package, 26 U.S.C. §§ 4701, 4703, 4771(a) (1); and it is illegal to purchase or sell except from the original stamped package, 26 U.S.C. § 4704(a). As in the case of the Marihuana Tax Act, all transfers, with exceptions not relevant here, must be made pursuant to a written order form issued by the Government. 26 U.S.C. § 4705(a). Only dealers who are in compliance with state law may register, and only registered dealers may secure order forms. 26 U.S.C. §§ 4705(f), (g); see 26 U.S.C. § 4721; 26 CFR § 151.24. Order forms are issued in triplicate to proper applicants and are stamped only with the name of the prospective purchaser. 26 U.S.C. § 4705(f); 26 CFR § 151.161. When a purchaser decides to execute a form, he fills in the exact date of the order and the number and type of drugs requested and signs his name to the form. 26 CFR §§ 151.163-151.165; 151.67. The purchaser retains the duplicate and delivers the original and the triplicate thus executed to the seller, who enters the number and size of the stamped packages furnished and the date when each item is filled. 26 CFR §§ 151.161(a); 151.185. A regulation, 26 CFR § 151.201, requires the seller to forward the triplicate to the Internal Revenue Service at the end of the month. Section 4705(d) of the Act requires both seller and buyer to keep their respective copies for a period of two years and to make them accessible to inspection by law enforcement officers." Id. at 94-95, 90 S. Ct. at 287-288.
Minor's indictment and conviction for selling narcotic drugs to persons who failed to present a properly executed order form in violation of § 4705(a) was affirmed by the Court. Reading the section to proscribe sale to those who have either failed to register or who could not register because their dealings were illicit, the Court concluded:
"Confronted with would-be buyers in this class, 'full and literal compliance' with § 4705(a) leaves the seller only one alternative: not to sell. Since from this record it is clear that Minor's customer was not a registered buyer, the alleged possibility of incrimination is purely hypothetical." Id. at 97, 90 S. Ct. at 289.
In the instant case, Clark was charged with having purchased heroin other than in or from the original stamped package in violation of § 4704(a). As the quoted excerpt describing the scheme of the Act indicates, these stamps are to be affixed by either the producer or the importer after he has paid the tax. None of these tasks is the responsibility of the purchaser, who has only one duty under this section -- to avoid purchase of unstamped narcotics. Viewed in this light, it is clear that for Clark, "full and literal compliance" left him with the same alternative which the Court found unobjectionable in Minor -- not to participate in the transaction.
Our view that the stamp provisions of the Act are constitutional as applied to the purchaser of heroin is strengthened by the realization that a prospective purchaser who has fully complied with the order form provisions (26 U.S.C. § 4705(a)) of the Act and thus is legally entitled to buy narcotics, is still under a duty not to purchase unstamped narcotics and may, under a literal reading of the section involved here, be convicted for violating § 4704(a). Thus Clark's ...