Last updated on: 12/31/2009 | Author:

Leary v. United States

Decided on May 19, 1969; 395 US 6

LSD advocate Dr. Timothy Leary claims his 5th Amendment privilege against self-incrimination and due process of law when charged with violating the Marijuana Tax Act by crossing into US from Mexico with unclaimed marijuana


A. Issues Discussed: Criminal Justice (Drugs), 5th Amendment

B. Legal Question Presented:

1) Was Dr. Leary’s conviction for failing to comply with the transfer tax provisions of the Marijuana Tax Act a violation of his Fifth Amendment privilege against self-incrimination?

2) Was Dr. Leary denied due process by the application of the part of 21 U.S.C. 176a,  which provided that a defendant’s possession of marijuana shall be deemed sufficient evidence that the marijuana was illegally imported or brought into the United States, and that the defendant knew of the illegal importation or bringing in, unless the defendant explained his possession to the satisfaction of the jury?


A. Background:

Petitioner, Dr. Timothy Leary, renowned advocate of psychedelic drug research, accompanied by his daughter, son, and two other people on an automobile trip from New York to Mexico and back, drove across the Texas-Mexico International Bridge where a US customs officer stopped and searched their car, discovering marijuana in the car and in Leary’s daughter’s possession.

Dr. Leary was indicted under 26 U.S.C. 4744(a)(2), a subsection of the Marijuana Tax Act, and under 21 U.S.C. 176a. At his trial before the district court, which resulted in his conviction, he admitted acquiring the marijuana in New York and driving with it to Texas, then to the Mexican customs station, and back to the United States. The Marijuana Tax Act levied an occupational tax upon all those who “deal in” the drug, and required that the taxpayer register his name and place of business with the Internal Revenue Service.

Dr. Leary contended that the Marijuana Tax Act denied him due process of law by compelling petitioner to expose himself to a “real and appreciable” risk of self-incrimination. The jury found him guilty on two counts, and he was sentenced to  the maximum punishment awarded by the charges. On appeal, the Court of Appeals  for the Fifth Circuit affirmed the judgment and sentence.

Dr. Leary appealed to the US Supreme Court and his certiorari was granted.

B. Counsel of Record:
Opposing Side
Robert J. Haft argued the cause and filed briefs for petitioner.

John S. Martin, Jr., argued the cause for the United States.

With him on the brief were Solicitor General Griswold, Assistant Attorney General Vinson and Beatrice Rosenberg.

C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging reversal were filed by Jonathan Sobeloff and Melvin L. Wulf for the American Civil Liberties Union and by Joseph S. Oteri for the National Student Assn. No amici curiae briefs were filed on behalf of Respondent.

“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 [v. United States], Grosso [v. United States], and Haynes [v. United States]. 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…

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’ under the state marihuana laws then in effect.  When petitioner failed to comply with the Act, in late 1965, possession of any quantity of marihuana was apparently a crime in every one of the 50 States, including New York, where petitioner claimed the transfer occurred, and Texas, where he was arrested and convicted…

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…

[W]e 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. And in the judicial assessment the congressional determination favoring the particular presumption must, of course, weigh heavily…

We conclude that the ‘knowledge’ aspect of the 176a presumption cannot be upheld without making serious incursions into the teachings of Tot [v. United States], [United States v.] Gainey, and [United States v.] 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..

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… In short, it would be no more than speculation were we to say that even as much as a majority of possessors ‘knew’ the source of their marihuana…

We thus cannot escape the duty of setting aside petitioner’s conviction under Count 2 of this indictment.

For the reasons stated… we reverse outright the judgment of conviction on Count 3 of the indictment. For the reasons stated… we reverse the judgment of conviction on Count 2 and remand the case to the Court of Appeals for further proceedings consistent with this opinion. We are constrained to add that nothing in what we hold today implies any constitutional disability in Congress to deal with the marihuana traffic by other means. Reversed and remanded.”

Justice Vote: 9 Pro vs. 0 Con

  • Harlan, J. Pro (Wrote majority opinion)
  • Marshall, T.  Pro (Joined majority opinion)
  • Brennan, W. Pro (Joined majority opinion)
  • Douglas, W. Pro (Joined majority opinion)
  • White, B. Pro (Joined majority opinion)
  • Burger, W. Pro (Joined majority opinion)
  • Black, H. Pro (Wrote concurring opinion)
  • Warren, E. Pro (Wrote concurring opinion)
  • Stewart, J. Pro (Wrote concurring opinion)



The ACLU filed as amicus curiae urging reversal; the US Supreme Court reversed the Court of Appeal’s judgment in an 9-0 vote giving the ACLU an apparent win.