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UNITED STATES v. MOORE

June 22, 1970

UNITED STATES of America
v.
John MOORE


Weiner, District Judge.


The opinion of the court was delivered by: WEINER

WEINER, District Judge.

 Tried by a jury, defendant was convicted on six counts of unlawfully transferring marihuana in violation of 26 U.S.C. § 4742(a) and of unlawfully acquiring marihuana in violation of 26 U.S.C. § 4744(a)(1). These statutes read, in pertinent part, as follows:

 
"§ 4742. Order forms
 
(a) General requirement. -- It shall be unlawful for any person, whether or not required to pay a special tax and register under sections 4751 to 4753, inclusive, to transfer marihuana, except in pursuance of a written order of the person to whom such marihuana is transferred, on a form to be issued in blank for that purpose by the Secretary or his delegate.
 
§ 4744. Unlawful possession
 
(a) Persons in general. -- It shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by section 4741 (a) --
 
(1) to acquire or otherwise obtain any marihuana without having paid such tax, or * * *"

 We have for our consideration defendant's motions for judgment of acquittal and for a new trial pursuant to Rules 29 (c) and 33, Fed. R. Crim. P. In support of these motions, defendant raises two arguments:

 
(a) That the government's proof did not establish the identity of the substance transferred;
 
(b) That the government failed to adequately explain its inability to produce its informant.

 IDENTITY OF THE SUBSTANCE TRANSFERRED

 The thrust of defendant's argument is that the government failed to meet its burden of introducing sufficient evidence so that a jury could find beyond a reasonable doubt that the substance transferred was Cannabis sativa L. Defendant asserts that the government only introduced evidence that the substance was marihuana; but, it failed to distinguish between the different varieties of marihuana. The statutory definition of marihuana appears as follows in 26 U.S.C. § 4761(2):

 
"Marihuana. -- The term 'marihuana' means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin; but shall not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks ...

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