Gore v. United States/Opinion of the Court

by Felix Frankfurter

United States Supreme Court

357 U.S. 386

Gore  v.  United States

 Argued: May 19, 1958. --- Decided: June 30, 1958

This is a prosecution under an indictment containing six counts for narcotics offenses. Four counts were based on provisions of the Internal Revenue Code of 1954 and two counts on the Narcotic Drugs Import and Export Act, as amended. The first three counts derive from a sale on February 26, 1955, of twenty capsules of heroin and three capsules of cocaine; the last three counts derive from a sale of thirty-five capsules of heroin on February 28, 1955. Counts One and Four charged the sale of the drugs, on the respective dates, not 'in pursuance of a written order' of the person to whom the drugs were sold on the requisite Treasury form, in violation of § 4705(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 4705(a). Counts Two and Five charged the sale and distribution of the drugs on the respective dates not 'in the original stamped package or from the original stamped package,' in violation of § 4704(a) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 4704(a). Counts Three and Six charged facilitating concealment and sale of the drugs on the respective dates, with knowledge that the drugs had been unlawfully imported, in violation of § 2(c) of the Narcotic Drugs Import and Export Act, ^[1] as amended by the Act of November 2, 1951, 65 Stat. 767. In short, Congress had made three distinct offenses in connection with the vending of illicit drugs, and the petitioner, having violated these three independent provisions, was prosecuted for all three as separate wrongdoings, despite the fact that these violations of what Congress had proscribed were compendiously committed in single transactions of vending. Duty tried before a jury, petitioner was convicted, and no question touching the conviction is before us. In controversy is the legality of the sentences imposed by the trial court. These were imprisonment for a term of one to five years, imposed on each count, the sentences on the first three counts to run consecutively, the sentences on the remaining three counts to run concurrently with those on the first three counts. Thus the total sentence was three to fifteen years. Petitioner moved, under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, to vacate the sentence, claiming that for all three counts a sentence as for only one count could be imposed. The motion was denied and the Court of Appeals affirmed, 100 U.S.App.D.C. 315, 244 F.2d 763, with expressions of doubt by two of the judges, who felt themselves bound by Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306. We brought the case here, 355 U.S. 903, 78 S.Ct. 335, 2 L.Ed.2d 259, in order to consider whether some of our more recent decisions, while not questioning Blockburger but moving in related areas may not have impaired its authority.

We adhere to the decision in Blockburger v. United States, supra. The considerations advanced in support of the vigorous attack against it have left its justification undisturbed, nor have our later decisions generated counter currents.

That the Blockburger opinion did not lay out with particularity the course of anti-narcotics legislation is scant basis for suggesting that the Court was unaware of it or did not duly heed the relevant criteria for statutory construction in dealing with the specific legislation before it. The Court was not an innocent in the history of narcotics legislation. Blockburger was not the first case that brought prosecutions under successive enactments dealing with the control of narcotics before the Court. At the time of Blockburger, it was not customary to make the whole legislative history connected with particular statutes in adjudication part of the conventional apparatus of an opinion. What is more to the point about the Blockburger decision is that the unanimous Court that rendered it then included three Justices conspicuous for their alertness in safeguarding the interests of defendants in criminal cases and in their insistence on the compassionate regard for such interests. Invidiousness is not implied in saying that Mr. Justice Brandeis, Mr. Justice Butler and Mr. Justice Roberts ^[2] would not have joined in finding that Congress established independent curbs as tactical details in the strategy against illicit narcotics trade, if it could be reasonably maintained that what in fact Congress was doing was merely giving different labels to the same thing. The fact that an offender violates by a single transaction several regulatory controls devised by Congress as means for dealing with a social evil as deleterious as it is difficult to combat does not make the several different regulatory controls single and identic. In Blockburger, the offender was indicted, convicted, and cumulatively sentenced for two separate offenses: selling forbidden drugs not 'in the original stamped package' (now § 4704(a) of the Internal Revenue Code), and of selling such drugs not 'in pursuance of a written order of the person to whom such article is sold' (now § 4705(a) of the Internal Revenue Code). The petitioner here was likewise indicted, tried, convicted and cumulatively sentenced for the two foregoing offenses and, in addition, for violating the amended § 2(c) of the Narcotic Drugs Import and Export Act. And so while Blockburger was sentenced to ten years for the two offenses, petitioner was sentenced to a maximum of fifteen years. The Court of Appeals inevitably found the Blockburger case controlling.

We are strongly urged to reconsider Blockburger by reading the various specific enactments of Congress as reflecting a unitary congressional purpose to outlaw nonmedicinal sales of narcotics. From this the conclusion is sought to be drawn that since Congress had only a single purpose, no matter how numerous the violations by an offender, of the specific means for dealing with this unitary purpose, the desire should be attributed to Congress to punish only as for a single offense when these multiple infractions are committed through a single sale. We agree with the starting point, but it leads us to the opposite conclusion. Of course the various enactments by Congress extending over nearly half a century constitute a network of provisions, steadily tightened and enlarged, for grappling with a powerful, subtle and elusive enemy. If the legislation reveals anything, it reveals the determination of Congress to turn the screw of the criminal machinery-detection, prosecution and punishment-tighter and tighter. The three penal laws for which petitioner was convicted have different origins both in time and in design. The present § 2(c) of the Narcotic Drugs Import and Export Act derives from an enactment of February 9, 1909, § 2, 35 Stat. 614. The present § 4705(a) of the Internal Revenue Code of 1954 derives from the Act of December 17, 1914, § 2, 38 Stat. 785, 786. The present § 4704(a) of the Internal Revenue Code of 1954 derives from the Revenue Act of 1918, § 1006, 40 Stat. 1057, 1130 (1919). ^[3] It seems more daring than convincing to suggest that three different enactments, each relating to a separate way of closing in on illicit distribution of narcotics, passed at three different periods, for each of which a separate punishment was declared by Congress, somehow or other ought to have carried with them an implied indication by Congress that if all these three different restrictions were disregarded but, forsooth, in the course of one transaction, the defendant should be treated as though he committed only one of these offenses.

This situation is toto coelo different from the one that led to our decision in Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905. That case involved application of the Mann Act, 18 U.S.C.A. § 2421,-a single provision making it a crime to transport a woman in interstate commerce for purposes of prostitution. We held that the transportation of more than one woman as a single transaction is to be dealt with as a single offense, for the reason that when Congress has not explicitly stated what the unit of offense is, the doubt will be judicially resolved in favor of lenity. It is one thing for a single transaction to include several units relating to proscribed conduct under a single provision of a statute. It is a wholly different thing to evolve a rule of lenity for three violations of three separate offenses created by Congress at three different times, all to the end of dealing more and more strictly with, and seeking to throttle more and more by different legal devices, the traffic in narcotics. Both in the unfolding of the substantive provisions of law and in the scale of punishments, Congress has manifested an attitude not of lenity but of severity toward violation of the narcotics laws. Nor need we be detained by two other cases relied on, United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 73 S.Ct. 227, 231, 97 L.Ed. 260, and Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370. In the former we construed the record-keeping provisions of the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., as punishing 'a course of conduct.' Of the Prince case, it suffices to say that the Court was dealing there 'with a unique statute of limited purpose.' 352 U.S. at page 325, 77 S.Ct. at page 405.

Finally, we have had pressed upon us that the Blockburger doctrine offends the constitutional prohibition against double jeopardy. If there is anything to this claim it surely has long been disregarded in decisions of this Court, participated in by judges especially sensitive to the application of the historic safeguard of double jeopardy. In applying a provision like that of double jeopardy, which is rooted in history and is not an evolving concept like that of due process, a long course of adjudication in this Court carries impressive authority. Certainly if punishment for each of separate offenses as those for which the petitioner here has been sentenced, and not merely different descriptions of the same offense, is constitutionally beyond the power of Congress to impose, not only Blockburger but at least the following cases would also have to be overruled: Carter v. McClaughry, 183 U.S. 365, 22 S.Ct. 181, 46 L.Ed. 236; Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153; Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505; Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489; American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575; United States v. Michener, 331 U.S. 789, 67 S.Ct. 1509, 91 L.Ed. 1818; Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435.

Suppose Congress, instead of enacting the three provisions before us, had passed an enactment substantially in this form: 'Anyone who sells drugs except from the original stamped package and who sells such drugs not in pursuance of a written order of the person to whom the drug is sold, and who does so by way of facilitating the concealment and sale of drugs knowing the same to have been unlawfully imported, shall be sentenced to not less than fifteen years' imprisonment: Provided, however, That if he makes such sale in pursuance of a written order of the person to whom the drug is sold he shall be sentenced to only ten years' imprisonment: Provided further, That if he sells such drugs in the original stamped package he shall also be sentenced to only ten years' imprisonment: And provided further, That if he sells such drugs in pursuance of a written order and from a stamped package, he shall be sentenced to only five years' imprisonment.' Is it conceivable that such a statute would not be within the power of Congress? And is it rational to find such a statute constitutional but to strike down the Blockburger doctrine as violative of the double jeopardy clause?

In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, see Radzinowicz, The History of English Criminal Law: The Movement for Reform, 1750-1833, passim, these are peculiarly questions of legislative policy. Equally so are the much mooted problems relating to the power of the judiciary to review sentences. First the English and then the Scottish Courts of Criminal Appeal were given power to revise sentences, the power to increase as well as the power to reduce them. See 7 Edw. VII, c. 23, § 4(3); 16 & 17 Geo. V, c. 15, § 2(4). This Court has no such power.

Affirmed.

Mr. Chief Justice WARREN, dissenting.

Notes

1. 35 Stat. 614, as amended. This provision was subsequently amended, 70 Stat. 570, 21 U.S.C. (Supp. V) § 174, 21 U.S.C.A. § 174.
2. For typical expressions of the attitudes of these members of the Court, see, e.g., Horning v. District of Columbia, 254 U.S. 135, 139, 41 S.Ct. 53, 54, 65 L.Ed. 185 (dissenting opinion of Brandeis, J.); Burdeau v. McDowell, 256 U.S. 465, 476, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (same); Olmstead v. United States, 277 U.S. 438, 471, 485, 48 S.Ct. 564, 570, 575, 72 L.Ed. 944 (dissenting opinions of Brandeis and Butler, JJ.); Sorrells v. United States, 287 U.S. 435, 453, 53 S.Ct. 210, 216, 77 L.Ed. 413 (separate opinion of Roberts, J., joined by Brandeis, J.); Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 123, 54 S.Ct. 330, 338, 78 L.Ed. 674 (dissenting opinion of Roberts, J., joined by Brandeis and Butler, JJ.); Palko v. State of Connecticut, 302 U.S. 319, 329, 58 S.Ct. 149, 153, 82 L.Ed. 288 (dissent of Butler, J.).
3. This statute, amendatory of the 1914 Act, supra, introduced the 'original stamped package' concept.