Barnes v. United States

Mr. Justice Douglas,

dissenting.

Possession of stolen property is traditionally under our federal system a local law question. It becomes a federal concern in the present case only if the “mail” was implicated. The indictment, insofar as the unlawful possession counts are concerned, charges that the items had been “stolen from the mail.” While there was evidence that these items had gone through the mail, petitioner did not take the stand, nor was there any evidence that petitioner knew that the items had been “stolen from the mail.” As to the possession counts in the indictment the District Court charged the jury that “three essential elements” were required to prove the possession offenses:

“FIRST: The act or acts of unlawfully having in one’s possession the contents of a letter, namely, the United States Treasury checks as alleged;

“SECOND: That the contents of the letter, *849 namely, the United States Treasury checks as alleged, were stolen from the mail; and

“THIRD: That the defendant James Edward Barnes .knew the contents had been stolen.”

The District Court also charged the jury:

“If you should find beyond a reasonable doubt from the evidence in the case that the mail described in the indictment was stolen, and that while recently stolen the contents of said mail here, the four United States Treasury checks, were in the possession of the defendant you would ordinarily be justified in drawing from those facts the inference that the contents were possessed by the accused with knowledge that it was stolen property, unless such possession is explained by facts and circumstances in this case which are in some way consistent with the defendant's.”

As noted by the Court, the Act, which originally required proof of possession of articles stolen from the mail “knowing the same to have been so stolen,” 18 U. S. C. § 317 (1934 ed.), was changed by eliminating the word “so” before “stolen.” H. R. Rep. No. 734, 76th Cong., 1st Sess., 1. And the Act under which petitioner was charged and convicted does not require as an ingredient of the offense that petitioner knew the property had been stolen from the mails.

That, however, is the beginning, not the end of the problem. For without a nexus with the “mails” there is no federal offense. How can we rationally say that “possession” of a stolen check allows a judge or jury to conclude that the accused knew the check was stolen from the mails? We held in Tot v. United States, 319 U. S. 463 , that where a federal Act made it unlawful for any convicted person to possess a firearm that had *850 been shipped in interstate or foreign commerce, it was unconstitutional to presume that a firearm possessed by such person had been received in interstate or foreign commerce. 1 The decision was unanimous. The vice in Tot was that the burden is on the government in a criminal case to prove guilt beyond a reasonable doubt and that use of the presumption shifts that burden. We said: “[I]t is not permissible thus to shift the burden by arbitrarily making one fact, which has no relevance to guilt of the offense, the occasion of casting on the defendant the obligation of exculpation.” Id., at 469 . The use of presumptions and inferences to prove an element of the crime is indeed treacherous, for it allows men to go to jail without any evidence on one essential ingredient of the offense. It thus implicates the integrity of the judicial system. We held in In re Winship, 397 U. S. 358, 364 , that the Due Process Clause requires “proof beyond a reasonable doubt of every fact necessary to constitute the crime . . . .” Some evidence of wrongdoing is basic and essential in the judicial system, unless the way of prosecutors be made easy by dispensing with the requirement of presumption of innocence, which is the effect of what the Court does today. In practical effect the use of these presumptions often means that the great barriers to the protection of procedural due process contained in the Bill of Rights are subtly diluted. 2

May Congress constitutionally enact a law that says *851 juries can convict a defendant without any evidence at all from which an inference of guilt could be drawn? If Thompson v. Louisville, 362 U. S. 199 , means anything, the answer is in the negative. The Congress is as unwarranted in telling courts what evidence is enough to convict an accused as we would be to tell Congress what criminal laws should be enacted. That seems inescapably plain by the regime of separation of powers under which we live.

In Leary v. United States, 395 U. S. 6 , we held that it was constitutionally impermissible to presume that one who possessed marihuana would be presumed to know of its unlawful importation. We said it would be sheer “speculation” to conclude that even a majority of the users of the plant knew the source of it. Id., at 53 . The overall test, we said, was whether it can-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.” Id., at 36 .

In that case there were some statistics as to the quantity of marihuana grown here and the amount grown abroad that enters the country. There was evidence of the characteristics of local and foreign marihuana, and the like.

Stolen checks may be the product of local burglaries of private homes or offices.

Stolen checks may come from purses snatched or purloined.

Stolen checks may involve any one of numerous artifices or tricks.

In other words, there are various sources of stolen checks which in no way implicate federal jurisdiction.

Checks stolen from national banks, checks stolen from federal agencies, checks lifted from the mails are other sources.

*852 But, unlike Leary , we have no evidence whatsoever showing what amount of stolen property, let alone stolen checks, implicates the mails. Without some evidence or statistics of that nature we have no way of assessing the likelihood that this petitioner knew that these checks were stolen from the mails. We can take judicial notice that checks are stolen from the mails. But it would take a large degree of assumed omniscience to say with “substantial assurance” that this petitioner more likely than not knew from the realities of the underworld that this stolen jiroperty came from the mails. But without evidence of that knowledge there would be no federal offense of the kind charged.

The step we take today will be applauded by prosecutors, as it makes their way easy. But the Bill of Rights was designed to make the job of the prosecutor difficult. There is a presumption of innocence. Proof beyond a reasonable doubt is necessary. The jury, not the court, is the factfinder. These basic principles make the use of these easy presumptions dangerous. 3 What we do today is, I think, extremely disrespectful of the constitutional regime that controls the dispensation of criminal justice.

Tot v. United States was decided in 1943, four years after the passage by Congress of the 1939 amendment to the present Act eliminating the need to prove knowledge that the property had been stolen from the mails. Had Tot been decided before 1939 it is inconceivable that Congress would have made the 1939 change in the present Act.

Mr. Justice Black and I previously have voiced this concern. Turner v. United States, 396 U. S. 398, 425 (dissenting opinion) ; United States v. Gainey, 380 U. S. 63, 72, 74 (dissenting opinions).

What we said in Christoffel v. United States, 338 U. S. 84, 89 , that “all the elements of the crime charged shall be proved beyond a reasonable doubt” has been the guiding rule at least on the issue of guilt. And it is cogently argued that presumptions of the existence of elements of a crime have no place in our constitutional framework. See 22 Stan. L. Rev. 341 (1970). That seems indubitably true to me, at least in the present case where knowledge that the checks were stolen from the mails has only suspicion to support it.