MR. JUSTICE HARLAN delivered the opinion of the Court.
This case presents constitutional questions arising out of the conviction of the petitioner, Dr. Timothy Leary, for violation of two federal statutes governing traffic in marihuana.
The circumstances surrounding petitioner's conviction were as follows. On December 20, 1965, petitioner left New York by automobile, intending a vacation trip to Yucatan, Mexico. He was accompanied by his daughter and son, both teenagers, and two other persons. On
Petitioner was indicted and tried before a jury in the Federal District Court for the Southern District of Texas, on three counts. First, it was alleged that he had knowingly smuggled marihuana into the United States, in violation of 21 U. S. C. § 176a.
After both sides had presented their evidence and the defense had moved for a judgment of acquittal, the District Court dismissed the first or smuggling count.
We granted certiorari, 392 U.S. 903 (1968), to consider two questions: (1) whether petitioner's conviction for failing to comply with the transfer tax provisions of the Marihuana Tax Act violated his Fifth Amendment privilege against self-incrimination; (2) whether petitioner was denied due process by the application of the part of 21 U. S. C. § 176a which provides that a defendant's possession of marihuana shall be deemed sufficient evidence that the marihuana was illegally imported or brought into the United States, and that the defendant knew of the illegal importation or bringing in, unless the defendant explains his possession to the satisfaction of the jury. For reasons which follow, we hold in favor of the petitioner on both issues and reverse the judgment of the Court of Appeals.
We consider first petitioner's claim that his conviction under the Marihuana Tax Act violated his privilege against self-incrimination.
Petitioner argues that reversal of his Marihuana Tax Act conviction is required by our decisions of last Term in Marchetti v. United States, 390 U.S. 39 (1968), Grosso v. United States, 390 U.S. 62 (1968), and Haynes v. United States, 390 U.S. 85 (1968). In Marchetti, we held that a plea of the Fifth Amendment privilege provided a complete defense to a prosecution for failure to register and pay the occupational tax on wagers, as required
In Grosso, we held that the same considerations required that a claim of the privilege be a defense to prosecution under 26 U. S. C. § 4401, which imposes an excise tax on proceeds from wagering. And in Haynes we held for the same reasons that assertion of the Fifth Amendment privilege provided a defense to prosecution for possession of an unregistered weapon under the National Firearms Act, 26 U. S. C. § 5851, despite the fact that in "uncommon" instances registration under the statute would not be incriminating. See 390 U. S., at 96-97, 99.
In order to understand petitioner's contention that compliance with the Marihuana Tax Act would have obliged him to incriminate himself within the meaning of the foregoing decisions, it is necessary to be familiar with the statutory scheme. The Marihuana Tax Act has two main subparts. The first imposes a tax on transfers of marihuana, the second an occupational tax upon those who deal in the drug. It is convenient to begin with the occupational tax provisions, 26 U. S. C. §§ 4751-4753.
Section 4751 provides that all persons who "deal in" marihuana shall be subject to an annual occupational tax. Subsections require that specified categories of persons, such as importers, producers, physicians, researchers, and millers pay varying rates of tax per year. See §§ 4751 (1)-(4), (6). Persons who "deal in" marihuana but do not fall into any of the specified categories are required to pay $3 per year. See § 4751 (5). Section 4753 provides that at the time of paying the tax the taxpayer must "register his name or style and his place or places of business" at the nearest district office of the Internal Revenue Service.
The first of the transfer tax provisions, 26 U. S. C. § 4741, imposes a tax "upon all transfers of marihuana which are required by section 4742 to be carried out in pursuance of written order forms." Section 4741 further provides that on transfers to persons registered under § 4753 the tax is $1 per ounce, while on transfers to persons not so registered the tax is $100 per ounce. The tax is required to be paid by the transferee "at the time of securing each order form."
Another statutory provision, 26 U. S. C. § 4773, assures that the information contained in the order form will be available to law enforcement officials. That section provides that the duplicate order forms required to be kept by the Internal Revenue Service shall be open to inspection by Treasury personnel and state and local officials charged with enforcement of marihuana laws, and that upon payment of a fee such officials shall be furnished copies of the forms.
Finally, 26 U. S. C. § 4744 (a) makes it unlawful for a transferee required to pay the § 4741 (a) transfer tax either to acquire marihuana without having paid the tax or to transport, conceal, or facilitate the transportation or concealment of, any marihuana so acquired.
If read according to its terms, the Marihuana Tax Act compelled petitioner to expose himself to a "real and appreciable" risk of self-incrimination, within the meaning of our decisions in Marchetti, Grosso, and Haynes. Sections 4741-4742 required him, in the course of obtaining an order form, to identify himself not only as a transferee of marihuana but as a transferee who had not registered and paid the occupational tax under §§ 4751-4753. Section 4773 directed that this information be conveyed by the Internal Revenue Service to state and local law enforcement officials on request.
Petitioner had ample reason to fear that transmittal to such official of the fact that he was a recent, unregistered transferee of marihuana "would surely prove a significant `link in a chain' of evidence tending to establish his guilt"
Thus, at the time petitioner failed to comply with the Act those persons who might legally possess marihuana under state law were virtually certain either to be registered under § 4753 or to be exempt from the order form requirement. It follows that the class of possessors who were both unregistered and obliged to obtain an order form constituted a "selective group inherently suspect of criminal activities." Since compliance with the transfer tax provisions would have required petitioner unmistakably to identify himself as a member of this "selective" and "suspect" group, we can only decide that when read according to their terms these provisions created a "real and appreciable" hazard of incrimination.
The Government, however, vigorously contends that when the Act is considered together with the accompanying regulations, and in light of existing administrative practice, its incriminatory aspect will be seen to vanish or shrink to less than constitutional proportions. The Government points first to regulations, 26 CFR §§ 152.22, 152.23, added in 1964, which provide that every applicant for registration under §§ 4751-4753
The Government asserts that these regulations clearly signify that no person will be permitted to register unless his activities are permissible under the law of his jurisdiction, and that no one will be permitted to obtain an order form and prepay the transfer tax unless he has registered.
We cannot accept the Government's argument, for we find that Congress did intend that a nonregistrant should be able to obtain an order form and prepay the transfer tax. This congressional intent appears both from the language of the Act and from its legislative history.
We begin with the words of the statute. Section 4741 (a), when read in conjunction with § 4742, imposes a tax upon every transfer of marihuana, with a few exceptions not here relevant.
The legislative history also strongly indicates that the Act was intended merely to impose a very high tax on transfers to nonregistrants and not to prohibit such transfers entirely. As a taxing measure, the bill of course originated in the House of Representatives. At the start of the first hearing on the bill, before the House Ways and Means Committee, the committee chairman announced that he had introduced the bill at the request of the Secretary of the Treasury.
The Treasury witness explained that the marihuana tax bill generally followed the plan of the Narcotics Act insofar as it required dealers in marihuana to register and prohibited transfers except by order form. But he testified that because of constitutional doubts:
Mr. Hester was also the first witness before a subcommittee of the Senate Finance Committee. There he testified in less detail, stating at different points that the purpose of the transfer provisions was "to discourage the widespread use of the drug by smokers and drug addicts,"
The House and Senate reports describe the purposes of the transfer provisions largely in the language of Mr. Hester's testimony. The House report declares that the purpose was "to discourage the widespread use of the drug by smokers and drug addicts,"
Upon this evidence, we have no hesitation in concluding that the interpretation which the Government would
Nor are we persuaded by the Government's argument that its construction has been followed by the Internal Revenue Service and the Bureau of Narcotics ever since the passage of the Act, and that this "long-standing" interpretation by the agencies charged with administering the Act should be controlling. We have often recognized that, as a general matter, a long-standing, contemporaneous construction of a statute by the administering agencies is "entitled to great weight," FTC v. Mandel Bros., 359 U.S. 385, 391 (1959), and will be "show[n] great deference," Udall v. Tallman, 380 U.S. 1, 16 (1965).
The foregoing shows that at the time petitioner acquired marihuana he was confronted with a statute which on its face permitted him to acquire the drug legally, provided he paid the $100 per ounce transfer tax and gave incriminating information, and simultaneously with a system of regulations which, according to the Government, prohibited him from acquiring marihuana under any conditions. We have found those regulations so out of keeping with the statute as to be ultra vires. Faced with these conflicting commands, we think petitioner would have been justified in giving precedence to the higher authority: the statute.
The United States has not urged us, as it did in Marchetti, Grosso, and Haynes, to avoid this constitutional difficulty by placing restrictions upon the use of information gained under the transfer provisions. We declined to impose use restrictions in those cases because we found that the furnishing of information to interested prosecutors was a "significant element of Congress' purposes in adopting" the statutes there involved. Marchetti v. United States, supra, at 59 (1968).
There remain the further questions whether this petitioner's claim of the privilege was timely and whether it was waived. As for timeliness, petitioner did not assert the privilege as a defense to the § 4744 (a) count until his motion for a new trial. The Court of Appeals evidently regarded the claim as timely, for it rejected it on the merits both in its original opinion and in its denial of rehearing. See 383 F. 2d, at 870; 392 F. 2d, at 221-222. The Government does not contend that the claim of the privilege was untimely. Petitioner's trial occurred before our decisions in Marchetti, Grosso, and Haynes, and the Court of Appeals for the Fifth Circuit had recently rejected an identical self-incrimination claim. See Haynes v. United States, 339 F.2d 30 (1964). Although it would have been preferable for petitioner to have asserted the privilege at trial, we hold that in the circumstances of this case his failure to raise
In denying Leary's petition for rehearing, the Court of Appeals, in addition to holding the privilege generally inapplicable to prosecutions under § 4744 (a), found that petitioner's claim of the privilege was improper because he "took the stand and affirmatively waived the privilege. . . by testifying fully to the details of his acquisition and transportation of marihuana without having paid the tax . . . ." 392 F. 2d, at 222. In relying for that proposition on the statement in Marchetti that our decision in that case would not provide a shield for any taxpayer who was "outside the privilege's protection," 390 U. S., at 61, we think the Court of Appeals misconceived the thrust of that dictum. The aspect of the self-incrimination privilege which was involved in Marchetti, and which petitioner asserts here, is not the undoubted right of an accused to remain silent at trial. It is instead the right not to be criminally liable for one's previous failure to obey a statute which required an incriminatory act. Thus, petitioner is not asserting that he had a right to stand mute at his trial but that he cannot be convicted for having failed to comply with the transfer provisions of the Act at the time he acquired marihuana in 1965. His admission at trial that he had indeed failed to comply with the statute was perfectly consistent with the claim that the omission was excused by the privilege. Hence, it could not amount to a waiver of that claim.
The Government suggests that petitioner waived his right to plead self-incrimination in yet another way, by testifying at trial that he had violated the statute for reasons entirely unrelated to fear of self-incrimination. It is true that some portions of petitioner's testimony indicate that his noncompliance was motivated, at least
Next, we consider whether, in the circumstances of this case, the application of the presumption contained in 21 U. S. C. § 176a denied petitioner due process of law.
Insofar as here relevant, § 176a imposes criminal punishment upon every person who:
A subsequent paragraph establishes the presumption now under scrutiny:
The second count of the indictment charged petitioner with having violated the "transportation" and "concealment" provisions of § 176a.
In view of this testimony, the trial court instructed the jury that it might find petitioner guilty of violating
The Government contends that by giving testimony at trial which established all elements of the offense under the "South-North" theory, and by failing to object to the jury instructions on the ground now advanced, petitioner foreclosed himself from raising the point thereafter. We cannot agree. Even assuming that petitioner's testimony did supply all the evidence required for a valid conviction under the "South-North" theory, the jury nevertheless was told that it could alternatively convict with the aid of the presumption under the "North-South" theory. For all we know, the conviction did rest on that ground. It has long been settled that when a case is submitted to the jury on alternative theories the unconstitutionality of any of the theories requires that
It is true that petitioner did not object to the jury instructions on the basis of the presumption's alleged unconstitutionality.
By what criteria is the constitutionality of the § 176a presumption to be judged?
Early decisions of this Court set forth a number of different standards by which to measure the validity of statutory presumptions.
The Court, relying upon a prior decision in a civil case,
The Tot Court reduced to the status of a "corollary" another test which had some support in prior decisions:
Applying the "rational connection" test, the Court held the Tot presumption unconstitutional. The Court rejected the contention that because most States forbade intrastate acquisition of firearms without a record of the transaction or registration of ownership it could be inferred merely from possession that an acquisition which did not meet these requirements must have been interstate, noting the alternative possibilities of unlawful
The two subsequent cases in which this Court ruled upon the constitutionality of criminal statutory presumptions, United States v. Gainey, 380 U.S. 63 (1965), and United States v. Romano, 382 U.S. 136 (1965), involved companion sections of the Internal Revenue Code dealing with illegal stills. The presumption in Gainey was worded similarly to the one at issue here; it permitted a jury to infer from a defendant's presence at an illegal still that he was "carrying on" the business of a distiller "unless the defendant explains such presence to the satisfaction of the jury . . . ." See 26 U. S. C. §§ 5601 (a) (4), 5601 (b) (2).
We held that the Gainey presumption should be tested by the "rational connection" standard announced in Tot. We added:
Applying these principles, we sustained the Gainey presumption, finding that it "did no more than `accord to the evidence, if unexplained, its natural probative force.' " 380 U. S., at 71.
The presumption under attack in United States v. Romano, supra, was identical to that in Gainey except that it authorized the jury to infer from the defendant's presence at an illegal still that he had possession, custody, or control of the still. See 26 U. S. C. §§ 5601 (a) (1),
The upshot of Tot, Gainey, and Romano is, we think, that a criminal statutory presumption must be regarded as "irrational" or "arbitrary," and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.
How does the § 176a presumption fare under these standards?
So far as here relevant, the presumption, quoted supra, at 30, authorizes the jury to infer from a defendant's possession of marihuana two necessary elements of the crime: (1) that the marihuana was imported or brought into the United States illegally; and (2) that the defendant knew of the unlawful importation or bringing in.
With regard to the "knowledge" presumption, we believe that Tot and Romano require that we take the statute at face value and ask whether it permits conviction upon insufficient proof of "knowledge," rather than inquire whether Congress might have made possession itself a crime.
Of course, it must be kept in mind that "significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it." Ibid. However, it quickly becomes apparent that the legislative record does not supply an adequate basis upon which to judge the soundness of the "knowledge" part of the presumption. We have therefore taken other materials into account as well, in an effort to sustain the presumption. In so doing, we have not confined ourselves to data available at the time the presumption was enacted in 1956, but have also considered more recent information, in order both to obtain a broader general background and to ascertain whether the intervening years have witnessed significant changes which might bear upon the presumption's validity.
As has been noted, we do not decide whether the presumption of illegal importation is itself constitutional.
Since the importation question is a subsidiary one, we take it up first, beginning, of course, with the legislative history of § 176a. The House and Senate committee reports and the floor debates are relatively unhelpful.
On the other hand, written material inserted in the record of the Senate hearings included former testimony of an experienced federal customs agent before another Senate committee, to the effect that high-quality marihuana was being grown near the Texas cities of Laredo and Brownsville.
Examination of periodicals and books published since the enactment of the presumption leaves no doubt that in more than a dozen intervening years there have been great changes in the extent and nature of marihuana use in this country. With respect to quantity, one readily available statistic is indicative: the amount of marihuana seized in this country by federal authorities has jumped from about 3,400 pounds in 1956 to about 61,400 pounds in 1967.
Despite these undoubted changes, the materials which we have examined point quite strongly to the conclusion that most domestically consumed marihuana is still of foreign origin. During the six years 1962-1967, some 79% of all marihuana seized by federal authorities was seized in attempted smuggling at ports and borders.
Petitioner makes much of statistics showing the number of acres of domestic marihuana destroyed annually by state and federal authorities, pointing out that if harvested the destroyed acreage could in each year have accounted for all marihuana estimated to have been consumed in the United States,
The Government urges that once it is concluded that most domestically consumed marihuana comes from abroad—a conclusion which we think is warranted by the data just examined—we must uphold the "knowledge" part of the presumption in light of this Court's decision in Yee Hem v. United States, 268 U.S. 178 (1925). In that case, the Court sustained a presumption which was virtually identical to the one at issue here except that the forbidden substance was smoking opium rather than marihuana. With respect to the inference of knowledge from possession which was authorized by that presumption, the Court said:
The Government contends that Yee Hem requires us to read the § 176a presumption as intended to put every marihuana smoker on notice that he must be prepared to show that any marihuana in his possession was
We therefore must consider in detail whether the available evidence supports the conclusion that the "knowledge"
Even if we assume that the previously assembled data are sufficient to justify the inference of illegal importation, see supra, at 44, it by no means follows that a majority of marihuana possessors "know"
Once it is established that a significant percentage of domestically consumed marihuana may not have been imported at all, then it can no longer be postulated, without proof, that possessors will be even roughly aware of the proportion actually imported. We conclude that in order to sustain the inference of knowledge we must
We can imagine five ways in which a possessor might acquire such knowledge: (1) he might be aware of the proportion of domestically consumed marihuana which is smuggled from abroad and deduce that his was illegally imported; (2) he might have smuggled the marihuana himself; (3) he might have learned by indirect means that the marihuana consumed in his locality or furnished by his supplier was smuggled from abroad; (4) he might have specified foreign marihuana when making his "buy," or might have been told the source of the marihuana by his supplier; (5) he might be able to tell the source from the appearance, packaging, or taste of the marihuana itself.
We treat these five possibilities seriatim, in light of the available materials, beginning in each instance with the legislative record. We note at the outset that although we have been able to discover a good deal of relevant secondary evidence, we have found none of the best kind possible—testimony of marihuana users about their own beliefs as to origin, or studies based upon interviews in which users were asked about this matter. The committee hearings which preceded passage of § 176a included testimony by many marihuana smokers, but none was ever asked whether he knew the origin of the marihuana he smoked. It should also be kept in mind that the great preponderance of marihuana smokers are "occasional" rather than "regular" users of the drug,
The first possibility is that a possessor may have known the proportion of imported to domestic marihuana and have deduced that his own marihuana was grown abroad. The legislative record is of no assistance in evaluating this possibility. Such indirect evidence as we have found points to the conclusion that while most marihuana users probably know that some marihuana comes from Mexico, it is also likely that the great majority either have no knowledge about the proportion which is imported or believe that the proportion is considerably lower than may actually be the case.
The second possibility is that a possessor may know the origin of his marihuana because he smuggled it into the United States himself. The legislative record is unhelpful in estimating the proportion of possessors who fall into this class. Other sources indicate that there are a considerable number of smokers who "smuggle their own," but that the great majority of possessors have obtained their marihuana from suppliers in this country.
The fourth possibility is that the possessor may have specified foreign marihuana when making his purchase or may have been told by his supplier that the marihuana was grown abroad. The legislative record is somewhat more helpful with respect to this possibility, for it does contain statements to the effect that Mexican marihuana is more potent than domestic and is consequently preferred by smokers.
The fifth possibility is that a smoker may be able to tell the source of his marihuana from its appearance, packaging, or taste. As for appearance, it seems that there is only one species of marihuana, and that even experts are unable to tell by eye where a particular sample was grown.
With respect to taste, the Senate hearing record contains the statement of a federal customs agent that: "A good marihuana smoker can probably tell good marihuana
We conclude that the "knowledge" aspect of the § 176a presumption cannot be upheld without making serious incursions into the teachings of Tot, Gainey, and Romano. In the context of this part of the statute, those teachings require that it be determined with substantial assurance that at least a majority of marihuana possessors have learned of the foreign origin of their marihuana through one or more of the ways discussed above.
We find it impossible to make such a determination. As we have seen, the materials at our disposal leave us at large to estimate even roughly the proportion of marihuana possessors who have learned in one way or another the origin of their marihuana. It must also be recognized that a not inconsiderable proportion of domestically consumed marihuana appears to have been grown
Nor are these deficiencies in the foundation for the "knowledge" presumption overcome by paying, as we do, the utmost deference to the congressional determination that this presumption was warranted. For Congress, no less than we, is subject to constitutional requirements, and in this instance the legislative record falls even shorter of furnishing an adequate foundation for the "knowledge" presumption than do the more extensive materials we have examined.
We thus cannot escape the duty of setting aside petitioner's conviction under Count 2 of this indictment.
For the reasons stated in Part I of this opinion we reverse outright the judgment of conviction on Count 3 of the indictment. For the reasons stated in Part II, we reverse the judgment of conviction on Count 2 and
Reversed and remanded.
MR. CHIEF JUSTICE WARREN joins Part II of the opinion of the Court and, considering himself bound by the decisions in Marchetti v. United States, 390 U.S. 39 (1968), Grosso v. United States, 390 U.S. 62 (1968), and Haynes v. United States, 390 U.S. 85 (1968), concurs in the result as to Part I.
MR. JUSTICE STEWART, concurring.
I join Part II of the Court's opinion. As to Part I, I have before now expressed my conviction that the Fifth Amendment guarantee against compulsory self-incrimination was originally intended to do no more than confer a testimonial privilege in a judicial proceeding.
I concur in the Court's outright reversal of the petitioner's conviction on Count 3 of the indictment for the reasons set out in Part I of the Court's opinion.
I also concur in reversal of the petitioner's conviction on Count 2 of the indictment, based on 21 U. S. C. § 176a. That section makes it a crime to import marihuana into the United States or to receive, conceal, or transport it, knowing it to have been imported contrary to law, and then goes on to provide that the mere possession of marihuana shall be "deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury." The trial court in this case charged the jury that proof that petitioner merely had possession of marihuana was sufficient to authorize a finding that he knew it had been imported or brought into the United States contrary to law. It is clear beyond doubt that the fact of possession alone is not enough to support an inference that the possessor knew it had been imported. Congress has no more constitutional power to tell a jury it can convict upon any such forced and baseless inference than it has power to tell juries they can convict a defendant of a crime without any evidence at all from which an inference of guilt could be drawn. See Thompson v. Louisville, 362 U.S. 199 (1960). Under our system of separation of powers, Congress is just as incompetent to instruct the judge and jury in an American court what evidence is enough for conviction as the courts are to tell the Congress what policies it must adopt in writing criminal laws. The congressional presumption, therefore, violates the constitutional right of a defendant to be tried by jury in a court set up in accordance with the commands of the Constitution. It clearly deprives a defendant of his right not to be convicted and punished for a crime without
It is for these reasons, and not because I think the law is " `irrational' or `arbitrary,' and hence unconstitutional," ante, at 36, that I would invalidate this presumption. I am firmly and profoundly opposed to construing "due process" as authorizing this Court to invalidate statutes on any such nebulous grounds. My quite different reasons for holding that the presumption does deny due process of law, that is the benefit of the "law of the land," have been fully set out in many opinions, including, for illustration, my concurring opinion in Tot v. United States, 319 U.S. 463, 473 (1943), and my dissenting opinion in United States v. Gainey, 380 U.S. 63, 74 (1965).
"Notwithstanding any other provision of law, whoever, knowingly, with intent to defraud the United States, imports or brings into the United States marihuana contrary to law, or smuggles or clandestinely introduces into the United States marihuana which should have been invoiced, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of such marihuana after being imported or brought in, knowing the same to have been imported or brought into the United States contrary to law, or whoever conspires to do any of the foregoing acts, shall be imprisoned . . . .
"Whenever on trial for a violation of this subsection, the defendant is shown to have or to have had the marihuana in his possession, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains his possession to the satisfaction of the jury."
"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
"(2) to transport or conceal, or in any manner facilitate the transportation or concealment of, any marihuana so acquired or obtained."
The statutory scheme of the Marihuana Tax Act is analyzed in more detail at 14-16, infra.
In 1965, New York and Texas had in effect statutory provisions substantially identical to the above sections of the Uniform Act. For New York, see N. Y. Pub. Health Law §§ 3301, subd. 38 (Supp. 1968-1969), 3305 (1954); for Texas, see Tex. Pen. Code, Art. 725b, §§ 1 (14), 2 (1961). In New York possession of any amount of marihuana was a misdemeanor punishable by up to a year's imprisonment. See N. Y. Pen. Law § 1751-a (1) (Supp. 1966). See also id., § 1751, subd. 2 (Supp. 1966). In Texas, such possession was a felony punishable by imprisonment for not less than two years and not more than life. See Tex. Pen. Code, Art. 725b, § 23 (1) (1961).
"Now, you might have some difficulty with the question on Count 2 . . . .
"I mention this a second time because you might be confused about the question of importation.
"We are not talking necessarily about the importation or what the government contends was importation here at the bridge.
"The defendant has told us that he received the marihuana in New York. This statute, of course, is of application throughout the land and the presumption would still apply that the narcotic had been imported illegally and that he knew it had been imported illegally unless he explains his possession to the satisfaction of the jury." Appendix 103a-104a.
"When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist."