Turner v. United States (396 U.S. 398)/Concurrence Marshall

Mr. Justice MARSHALL, concurring in the judgment.

I concur in the judgment of the Court, affirming petitioner's conviction on Counts 1 and 2 and reversing his conviction on Counts 3 and 4. In so doing, however, I can agree with the majority on Count 2 only insofar as it concludes that evidence of possession of 275 glassine bags of heroin provded beyond a reasonable doubt that Turner was distributing heroin in violation of 26 U.S.C. § 4704(a). That same evidence does not establish that the had purchased the heroin in violation of that statute.

The opinion of the Court establishes convincingly the virtual certainty that the heroin in Turner's possession had been illegally imported into the country. It was thus proper with regard to Count 1 for the trial judge to instruct the jurors in effect that if they found that Turner did indeed possess the drug, they could infer that the heroin had been illegally imported and impute knowledge of that fact to Turner. However, the instruction that possession is prima facie evidence of a violation of § 4704(a) is quite different. It may be true that most persons who possess heroin have purchased it not in or from a stamped package. However, Turner himself may well have obtained the heroin involved here in any of a number of ways-for example, by stealing it from another distributor, or by manufacturing or otherwise acquiring it abroad and smuggling it into this country. Given the dangers that are inherent in any statutory presumption or inference, some of which are set out in the dissenting opinion of Mr. Justice BLACK, I cannot agree with the wholly speculative and conjectural holding that because Turner possessed heroin he must have purchased it in violation of § 4704(a).

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.