United States v. Gainey/Dissent Douglas

Mr. Justice DOUGLAS, dissenting in part.

The statute which the Court finds constitutional provides:

'Whenever on trial for violation of subsection (a)(4) (making     it an offense to carry on the business of a distiller or      rectifier without having given bond as required by law) the      defendant is shown to have been at the site or place where,      and at the time when, the business of a distiller or      rectifier was so engaged in or carried on, such presence of      the defendant shall be deemed sufficient evidence to      authorize conviction, unless the defendant explains such      presence to the satisfaction of the jury (or of the court      when tried without jury).' 26 U.S.C. § 5601(b)(2).

It would be possible to interpret the statute as compelling judges to give the following instruction to juries: 'If you find that the defendant was present at the still, then the law requires you to assume that he was there carrying on the business of a distiller within the meaning of the statute; but you need not make this assumption if the defendant has given another explanation of his presence there and you are satisfied of the truth of that explanation.' If the statute were read as compelling such an instruction, I would find it constitutionally intolerable, for the reasons so well stated by my Brother BLACK.

The Court, however, interprets the statute as merely allowing, not compelling, the jury to draw the inference of 'carrying on' from the fact of 'presence.' The jury is left free to reject the inference if, in light of all the circumstances of the case, a reasonable doubt remains as to the defendant's guilt. That is the way the jury would normally function, apart from the statute. So, I have concluded that the statute, as construed, merely provides a rule of evidence and no more.

There are, to be sure, dangers inherent in any statutory presumption. Perhaps the jury will be overawed if it is told that some particular factual inference has been enshrined in an Act of Congress. Therefore the Court quite rightly suggests that the better practice would be to omit 'any explicit reference to the statute itself in the charge.' Ante, p. 71, n. 7. Or perhaps the judge may feel that the statute restricts his power to withhold an insufficient case from the jury or to grant a judgment notwithstanding the verdict. The Court reassures the trial judge that the statute does not thus invade the province of his discretion. Nor is the function of the appellate courts in any way circumscribed.

In my view, the acute danger in the statute as construed and applied lurks in its provision that the jury may draw the inference in question 'unless the defendant explains such presence to the satisfaction of the jury * *  * .' (Emphasis supplied.) If this meant that the judge should instruct that the inference may be drawn unless the defendant himself becomes a witness and personally explains his presence at the still, then, as my Brother BLACK says, the statute would clearly subject the defendant to an impermissible compulsion to testify. But more subtly compelling instructions than that are outlawed by the same policy. It has long been the rule in the federal courts that the defendant's failure to testify ought not to be even the subject of unfavorable comment:

'It is not every one who can safely venture on the witness     stand, though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and     attempting to explain transactions of a suspicious character,      and offences charged against him, will often confuse and      embarrass him to such a degree as to increase rather than      remove prejudices against him. * *  * (C)ounsel is forbidden      by the statute (now 18 U.S.C. § 3481) to make any comment      which would create or tend to create a presumption against      the defendant from his failure to testify.' Wilson v. United      States, 149 U.S. 60, 66-67, 13 S.Ct. 765, 766-767, 37 L.Ed. 650.

Just as it is improper for counsel to argue from the defendant's silence, so is it improper for the trial judge to call attention to the fact of defendant's silence. Indeed, under 18 U.S.C. § 3481 the defendant is entitled as a matter of right to have the trial judge expressly tell the jury that it must not attach any improtance to the defendant's failure to testify; or, if the defendant sees fit, he may choose to have no mention made of his silence by anyone. Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257.

I have previously expressed my view that this rule against comment on the defendant's silence is mandated by the Fifth Amendment, because '(u)sing a defendant's silence as evidence against him is one way of having him testify against himself.' Scott v. California, 364 U.S. 471, 472, 81 S.Ct. 245, 5 L.Ed.2d 222 (dissenting opinion).

The charge in the present case does not, in my view, satisfy the requirements of the Fifth Amendment. The judge told the jury that the inference could be drawn 'unless the defendant by the evidence in the case and by proven facts and circumstances explains such presence to the satisfaction of the jury.' I believe the charge in that form runs counter to the federal policy that forbids conviction on compelled testimony, not only because, as my Brother BLACK points out, it puts direct pressure on the defendant to come forward and testify, but also because it amounts in practical effect to an improper comment on the defendant's silence where, as here, he resists the pressure and does not take the stand in his own behalf. Unlike the Court, therefore, I would not interpret the statute before us as attempting a pro tanto repeal of 18 U.S.C. § 3481 by authorizing such an instruction.