Gore v. United States/Dissent Brennan

Mr. Justice BRENNAN, dissenting.

Even assuming the vitality of Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306, I must dissent from the disposition of this case. In Blockburger the Court held that multiple punishment right be imposed as the consequence of a single sale of narcotics, provided that separate statutory offenses were involved in the same transaction. In determining whether there were separate statutory offenses the Court said:

'The applicable rule is that where the same act or     transaction constitutes a violation of two distinct statutory      provisions, the test to be applied to determine whether there      are two offenses or only one, is whether each provision      requires proof of a fact which the other does not.' 284 U.S.      at page 304, 52 S.Ct. at page 182. (Emphasis added.)

The Court's decision today is inconsistent with the principles of Blockburger because it allows separate offenses to be proved and separate punishments to be imposed upon the proof of a single fact. The petitioner has been convicted of a sale of narcotics 'not from the original stamped package' in violation of 26 U.S.C. (Supp. V) § 4704(a), 26 U.S.C.A. § 4704(a), and for having 'facilitated the concealment and sale' of narcotics in violation of 21 U.S.C. § 174, 21 U.S.C.A. § 174. But § 4704(a) provides that 'the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found' and § 174 provides that 'whenever on trial for a violation of this subsection the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.'

Therefore under the statutes proof of the single fact of possession of unstamped narcotics suffices to convict the defendant of offenses under either § 4704(a) or § 174. Since under Blockburger punishment under separate sections can be sustained only if 'each provision requires proof of a fact which the other does not,' 284 U.S. at page 304, 52 S.Ct. at page 182, the decision of the court below should be reversed.