This unusual criminal case delves into the new realm of psychedelic experience, and into mysticism, religion and its free exercise. The principal issue we must decide is whether the conviction of appellant for violations of federal criminal statutes relating to marihuana-- a psychedelic drug which the defendant claims he uses as a religious sacramental aid-- contravenes the accused's First Amendment right to the free exercise of his religion. There are, however, other important questions, some of them constitutional also, which we will discuss fully.

Dr. Timothy Leary, appellant, and his minor daughter, Susan Leary, age 18, were jointly indicted on three counts for offenses pertaining to marihuana. Dr. Leary was tried before a jury on March 11, 1966. Count 1, which charged the smuggling of marihuana into the United States which should have been invoiced (declared), was dismissed by the court following a motion for judgment of acquittal. Dr. Leary was found guilty, however, on Count 2, which charged transportation, and facilitation of transportation, and concealment of marihuana after importation,1 in violation of 21 U.S.C. 176a,2 and on Count 3, which charged transportation and concealment of marihuana by defendants as transferees, required to pay the transfer tax imposed by the Internal Revenue Code,3 in violation of 26 U.S.C. 4744(a)(2).4 Appellant was sentenced to the maximum penalties and fines provided for such offenses, subject, however, to the provisions of 18 U.S.C. 4208(b), and was ordered committed to the medical center at Springfield, Missouri, for a complete study5 to be used by the court as a basis for determining the ultimate sentence in the case. Defendant's motion for a new trial was denied.

Susan Leary was tried at the same time as her father, Dr. Leary, by the court without a jury (trial by jury having been waived) and found guilty on Count 3 of the indictment but not guilty on Counts 1 and 2. Imposition of sentence was suspended and she was placed on probation during the remainder of her minority, without supervision, under the provisions of the Youth Corrections Act, 18 U.S.C. 5010(a). Her appeal was then dismissed on her own motion.

The facts of this case are relatively uncomplicated.

Dr. Leary left New York on December 20, 1965 by automobile, accompanied by his two children, Susan, age 18, and John, age 16, and two other persons. Their destination was Yucatan, Mexico, and the alleged purpose of the trip was a Christmas vacation for the Leary children and to provide Dr. Leary the opportunity to write a book and to prepare for a summer session to be conducted with a research group at his home in Millbrook, New York. On December 22, 1965, Dr. Leary and the four passengers drove across the international boundary at Laredo, Texas, into the Republic of Mexico, stopped at the Mexican immigration station for several minutes, and turned back toward the United States. At approximately 6:45 p.m., they arrived at the secondary inspection area, Laredo International Bridge, Laredo, Texas. Dr. Leary, the driver of the vehicle, told a U.S. Customs official that they had driven across the boundary into Mexico within the prior hour, that they had been unable to secure tourist permits and had been told by Mexican immigration officials to return the following morning at 8:00 a.m. at which time the necessary Mexican permits would be given to them. The U.S. inspector asked the group if they had anything to declare from Mexico and was told that they had not. After the occupants alighted from the vehicle, the U.S. inspector observed some vegetable material and a seed on the floor of the automobile which appeared to him to be marihuana. Thus the five travelers were arrested. A search of the baggage, the vehicle and of the individuals was made. Sweepings from the car floor and glove compartment were later proved to be marihuana.6 While Dr. Leary was being searched, he stated that he had never used marihuana. A woman Customs inspector performed a personal search of the two female travelers, which resulted in the finding of a small metal container on the person of Susan Leary after she had disrobed. Within the container were three partially smoked marihuana cigarettes, a small quantity of semi-refined marihuana and capsules of detroamphetamine sulfate (said to be a nonprohibitive narcotic). Demand was made of Dr. Leary for the required Treasury Lepartment transferee form. He stated that he had no such form. Susan Leary, in response to the same demand, refused to make any statement. Dr. Leary admitted to a U.S. Customs agent that the metal box taken from his daughter, Susan, containing the marihuana, was his property. He further stated in the presence of two Government agents that he knew more about narcotics and marihuana than either of them.

Dr. Leary testified on his own behalf. He admitted that the seized marihuana had been obtained by him in New York and had been in his possession continuously on his trip from New York to Laredo; that he had neither obtained an order form nor paid a transfer tax for the marihuana as required by the statute. He said that he asked the four people in his group to get rid of the marihuana; that just prior to arriving at the U.S. Customs Station, while crossing the International Bridge, he asked if the marihuana had been disposed of and was told by Susan, his daughter, that it had not been and it was in her possession. He further admitted that while on the trip from New York to Mexico at an overnight stop in New Orleans, Louisiana, he smoked marihuana to relieve a low spiritual state; that this incident was equivalent to an hour of silent meditation from which he derived spiritual benefit. Dr. Leary testified that he was familiar with the laws of the United States relative to marihuana and was aware that his actions were contrary to such laws.7 In his testimony he attempted to justify use of this drug which he said was for religious and scientific purposes.

Dr. Leary has an impressive academic background. He testified that he received a Ph. D. degree in Clinical Psychology from the University of California. During the years from 1944 to 1960 he wrote and published several publications relative to the use of psychedelic drugs in the treatment of the mentally ill, including thirteen scientific articles and two books. In 1950 he helped found the Kaiser Psychiatric Clinic in Oakland, California. During the next eight years he received nearly one-half million dollars in federal grants at the Kaiser Clinic for research work on mental illness. He published four diagnostic tests relative to mental illness which have been used in diagnosing and treating mental patients in over 750 clinics and hospitals in the United States and which have been translated into several foreign languages. He served on the University of California medical faculty from 1953 to 1956. In 1959 he joined the Harvard University faculty.

In 1960, while visiting Mexico, he testified that he had 'the most intense religious experience' he had ever had in his life as the result of having eaten a number of the 'Sacred Mushrooms' of Mexico. The incident changed his life. Since that time he has written five books and thirty-eight articles pertaining to religious and scientific use of psychedelic drugs, and he has devoted his life to attempting to understand the religious experience and how it can be applied to help others. He said that he formed a religious research group after returning to Harvard University, and with the help of Aldous Huxley, he experimented with certain psychedelic drugs. In 1962 he studied Hinduism and after a year became a member of a Hindu sect. In 1963 he left Harvard, performed further experimental work in Mexico, and later established a center and workshop for religious and scientific research in Millbrook, New York which center is now his home. The building also serves as a place for religious meditation and spiritual retreat. Rooms in the house contain shrines devoted to Hindu, Buddhist and Christian ways of finding God, as well as religious pictures and statues. Dr. Leary has traveled extensively through Asia in pursuit of his religious endeavors and has studied Buddhism and Hinduism with several religious teachers and monks. While studying in India with Sri Asoke Fukir, a religious leader, Dr. Leary participated in religious rituals in which marihuana was used. He was converted to Hinduism, and is now a member of the Brahmakrishna sect in Massachusetts.

Dr. Leary further testified that he first used marihuana in August or September 1964. Marihuana enables him to attain what he describes as the third level of consciousness. Other psychedelic drugs take a person to a higher level. According to the Hindu religion, there are thousands of roads to illumination to the god within a person. Different sects speciallze in different aids. The Hindu sect in India of which he became a member uses marihuana for religious illumination and meditation. He ordinarily uses marihuana less than once a week and then only for religious purposes. He draws no distinction between his religious beliefs and his scientific experimentation. If he could not use marihuana it would not affect his religious beliefs but he would consider it a violation of those beliefs and practices if he were denied its use.

Dr. Leary said he acquired the marihuana in New York which led to his conviction. He testified that the reason he did not declare the marihuana at the U.S. Customs Office at Laredo was his apprehension of being subjected to investigation or arrest. He never complied with the Treasury Department regulations relative to marihuana because he knew that he could not obtain permission for its use inasmuch as his research is not performed in a laboratory and is of a religious nature; that the law makes no provision for the use of marihuana under such circumstances; that if he had attempted to register or to pay the required tax, the marihuana would have been taken from him and he would have been subjected to legal action. He had applied for and been refused permits for other chemicals such as mescaline, peyote and LSD. He believes he has both a moral and a political right to possess marihuana.

Fred Swain (Sri Kalidas, in religion) testified on behalf of appellant. He is an American Hindu Sanyasa (monk), a renunciant, living in a monastery, who joined the religious order of which appellant is a member in 1948. He met Dr. Leary in 1962 and later participated in psychedelic experiments with him at Harvard University. While traveling in India he was often in the company of Dr. Leary; he smoked marihuana with him in the Rishikesh, a city of holy men, along the banks of the Ganges River, in Hindu religious services. He said that marihuana plays a very important part in the rituals of the Hindu sect conducted by Sri Asoke Fukir in India. The Brahmakrishna sect in the United States of which he and Dr. Leary are members is a highly established authority sect in India, recognized throughout India by all Hindus. He admitted that he was partially able to achieve and practice his religious beliefs in the Hindu sect without the use of marihuana. He does not use marihuana in the United States because it is unavailable; he is forced to use other psychedelic drugs in conjunction with meditation and prayer.

Dr. Ralph Metzner, a psychopharmacologist who received his Master's degree from Oxford and Ph. D. in Psychology from Harvard, testified on behalf of appellant. He co-authored with Dr. Leary the book 'Psychedelic Experience' as well as several articles including 'Reducing Criminal Behavior' by the use of the psychedelic drug psilocybin (the extract of the sacred mushroom). The word 'psychedelic' refers to a class of drugs, which includes LSD, mescaline, marihuana, among others, whose primary effect is to expand consciousness, heighten intellectual activity and sensory awareness. In India he was initiated into the same Hindu sect of which Dr. Leary is a member. He participated with Dr. Leary in several scientific experiments under the auspices of Harvard University. He also assisted Dr. Leary in conducting seminars, giving lectures, writing books and giving training courses in consciousness expansion without drugs. He corroborated Dr. Leary's testimony concerning the religious nature and character of the Millbrook center in New York.8

Appellant's points of error are stated substantially as follows:

1 (A). The District Court erred in refusing to instruct the jury to acquit appellant if it found his religious claims to be honest and in good faith.

1 (B). In light of the federal exemption from restrictive legislation granted to religious users of peyote and the Government's inability to establish that marihuana is more harmful than peyote, the denial of a religious exemption from the marihuana legislation is an invidious religious discrimination in violation of the First and Fifth Amendments.

2. Denial of appellant's motion § for a bill of particulars specifying the location, direction and time of alleged tramsportation was reversible error; alternatively, the indictment was fatally insufficient.

3. The District Court's instructions on the meaning of the statutory presumptions (a) effectively directing conviction and imposed upon appellant the burden of proving his innocence; (b) were misleading and authorized convictions if appellant did not prove to the jury's 'satisfaction' that his possession was 'lawful' and 'legitimate'; and (c) failed to direct acquittal if the jury believed that appellant lacked knowledge of illegal importation-- all in violation of the Fifth and Sixth Amendments and amounting to 'plain error' under Rule 52(b), Fed. R.Crim.P.

4. The Government's closing argument to the jury far exceeded the bounds of fair comment.

5. The Government's failure to disclose that one of the major witnesses was under two federal indictments at the time of the trial denied appellant a fair trial.

6. The presumption under 21 U.S.C. 176a that marihuana is illegally imported and that a possessor has knowledge of illegal importation is arbitrary and irrational in view of the high proportion of marihuana in the United States which is domestically grown.

7. The statutory requirement of a written order form (26 U.S.C. 4742) and the imposition of a transfer tax (26 U.S.C. 4741(a)) violate appellant's constitutional privilege against compulsory self-incrimination and render invalid the conviction under Count 3.

8. The District Court erred in refusing to instruct the jury that they could consider as a defense to Count 2, the defendant's honest and sincere belief that he had a right to engage in his activities because of his religious, scientific, or parental beliefs, and that these beliefs could negate the specific intent necessary for conviction under the statute.

Religious freedom, guaranteed by the Constitution, must be weighed with the public interest and the broad power to legislate vested in Congress by the Constitution.9 Thus the First Amendment 'embraces two concepts,-- freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be.' Cantwell v. State of Connecticut, 310 U.S. 296, at 303, 304, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940). The freedom to act is conditional and relative and Congress may prescribe and enforce certain conditions to control conduct which may be contrary to a person's religious beliefs in the interest of the public welfare and protection of society. See the Supreme Court's decisions in the anti-bigamy cases, Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878); Davis v. Beason, 133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637 (1890), and the Sunday-closing-law cases, McGowan v. State of Maryland, 366 U.S. 420, 81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961); Two Guys From Harrison-Allentown v. McGinley, 366 U.S. 582, 81 S. Ct. 1135, 6 L. Ed. 2d 551 (1961); Braunfeld v. Brown, 366 U.S. 599, 81 S. Ct. 1144, 6 L. Ed. 2d 563 (1961); Gallagher v. Crown Kosher Super Mkt. of Mass., 366 U.S. 617, 81 S. Ct. 1122, 6 L. Ed. 2d 536 (1961).

In Reynolds v. United States, supra, 98 U.S. at 166, the Supreme Court, in denying Mormons an exemption from antibigamy laws, said, 'Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.' The Court recognized that religious practice could not be accepted as justification for an overt criminal act; that to permit a man to excuse his unlawful practices because of his religious belief 'would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.' (98 U.S. at 167.)

In Braunfeld v. Brown, supra, which upheld the constitutional validity of a Pennsylvania Sunday-closing statute, the Court reaffirmed the principles of Cantwell v. State of Connecticut, supra, and Reynolds v. United States, supra, with its statement that 'the freedom to act, even when the action is in accord with one's religious convictions, is not totally free from legislative restrictions' (366 U.S. at 603, 81 S. Ct. at 1146), and that 'legislative power over mere opinion is forbidden but it may reach people's actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one's religion.' (366 U.S. at 603, 604, 81 S. Ct. at 1146).10

Congress has seen fit to legislate, with appropriate criminal sanctions, concerning the possession, importation, concealment, and taxation of marihuana. The severity of the penalties provided by statute for the violation of these laws provides an insight into the grave concern of Congress to control the use of this drug. The testimony of appellant's witnesses relative to his sincerity of purpose in his religious and scientific endeavors is not pertinent here; nor is the evidence about the so-called harmless nature, the therapeutic value, and the accepted use of marihauna for religious rituals by certain sects in India.

Our concern is with the laws of the United States, which appellant admittedly, knowingly and purposely violated because they conflicted with his personal religious beliefs and practices. Appellant has attempted to demonstrate that the experience he finds through the use of marihuana is the essence of his religion. We do not inquire into the truth or verity of appellant's religious beliefs-- to do so would be violative of the Free Exercise Clause of the First Amendment. United States v. Ballard, 322 U.S. 78, 64 S. Ct. 882, 88 L. Ed. 1148 (1944). But appellant's religious creed and the sincerity of his beliefs are not at issue here. The district judge properly refused an instruction to the jury that they should acquit the defendant if they found his religious practices were in good faith.

Appellant's reliance on Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963), for authority that the constitutionally guaranteed right of free religious exercise imposes on the Government the burden of showing a compelling interest in its abridgement, is misplaced and inapposite on the facts. In Sherbert the Supreme Court held that the disqualification of a member of the Seventh Day Adventist Church for unemployment benefits under the South Carolina Unemployment Compensation Act, because of her refusal to work on Saturday, imposed a burden on the free exercise of her religion. The Court in arriving at its conclusion considered whether there was 'some compelling state interest' in the statute which justified 'the substantial infringement of appellant's First Amendment right' (374 U.S. at 406, 83 S. Ct. at 1795), and found no such state interest.

Here the paramount Government interest in the enforcement of the laws relative to marihuana is the protection of society. We cannot reasonably equate deliberate violation of federal marihuana laws with the refusal of an individual to work on her Sabbath Day and nevertheless claim compensation benefits. The Court in Sherbert, while upholding the Free Exercise Clause under the facts of that case, recognized that it had rejected challenges under the same clause 'to governmental regulation of certain overt acts prompted by religious beliefs or principles, for 'even when the action is in accord with one's religious convictions, (it) is not totally free from legislative restrictions.' Braunfeld v. Brown, 366 U.S. 599, 603, 81 S. Ct. 1144, 1146, 6 L. Ed. 2d 563. The conduct or actions so regulated have invariably posed some substantial threat to public safety, peace or order. See, e.g., Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244; Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643; Prince v. (Commonwealth of) Massachusetts, 321 U.S. 158, 64 S. Ct. 438, 88 L. Ed. 645; Cleveland v. United States, 329 U.S. 14, 67 S. Ct. 13, 91 L. Ed. 12.' (374 U.S. at 403, 83 S. Ct. at 1793.)

The unlawful transportation, possession and use of marihuana falls within the category of cases cited in Sherbert which require governmental regulation. 'Crime is not the less odious because sanctioned by what any particular sect may designate as 'religion." Davis v. Beason, 133 U.S. 333, 345, 10 S. Ct. 299, 301, 33 L. Ed. 637 (1890).

There is no evidence in this case that the use of marihuana is a formal requisite of the practice of Hinduism, the religion which Dr. Leary professes. At most, the evidence shows that it is considered by some as being an aid to attain conciousness expansion by which an individual can more easily meditate or commune with his god. Even as such an aid, it is not used by Hindus universally.

Congress has made it a crime to traffic in marihuana and it was not incumbent upon the Government to produce evidence to controvert the testimony of witnesses on the controversial question whether use of the drug is relatively harmless. Thus the question is whether the conduct or action so regulated and prohibited under severe criminal penalties by Congress (i.e., trafficking in marihuana) has posed 'some substantial threat to public safety, peace or order,' Sherbert, supra, 374 U.S. at 403, 83 S. Ct. at 1793. Congress has demonstrated beyond doubt that it believes marihuana is an evil in American society and a serious threat to its people. It would be difficult to imagine the harm which would result if the criminal statutes against marihuana were nullified as to those who claim the right to possess and traffic in this drug for religious purposes. For all practical purposes the anti-marihuana laws would be meaningless, and enforcement impossible. The danger is too great, especially to the youth of the nation, at a time when psychedelic experience, 'turn on,' is the 'in' thing to so many, for this court to yield to the argument that the use of marihuana for so-called religious purposes should be permitted under the Free Exercise Clause. We will nit, therefore, subscribe to the dangerous doctrine that the free exercise of religion accords an unlimited freedom to violate the laws of the land relative to marihuana.

Appellant argues that the religious use of peyote, a psychedelic hallucinogen, by Indians who are members of the Native American Church has been constitutionally protected by the Supreme Court of California in People v. Woody, 61 Cal. 2d 716, 40 Cal. Rptr. 69, 394 P.2d 813 (1964). He refers also to the California Supreme Court's decision in In re Grady, 61 Cal. 2d 887, 39 Cal. Rptr. 912, 394 P.2d 728 (1964), decided the same day as Woody, in which conviction of a 'self-styled peyote preacher' for unlawful possession of narcotics, namely, peyote, was annulled and a new trial granted in order that the defendant might have an opportunity to prove that his use of peyote was in connection with an honest and bona fide practice of a religious belief. By parity of reasoning he contends that marihuana, another psychedelic drug, is entitled to the same constitutional protection as peyote. With due deference to the California Supreme Court, we are of course not bound by its decisions. However, we note an essential difference between Woody and the instant matter in that peyote in the Woody case played 'a central role in the ceremony and practice of the Native American Church, a religious organization of Indians,' and that the 'ceremony marked by the sacramental use of peyote, composes the cornerstone of the peyote religion.' Grady was apparently the spiritual leader of a group of individuals and provided peyote for the group which he said was for religious purposes.

We are not impressed that the California cases are directly in point, and we will not apply them insofar as the circumstances of this case are concerned.11

In the early case of State v. Big Sheep, 75 Mont. 219, 243 P. 1067 (1926), the Montana Supreme Court held, 'It was clearly within the power of the Legislature to determine whether the practice of using peyote is inconsistent with the good order, peace, and safety of the state,' against the contention that the defendant's religious freedom was infringed.

In State v. Bullard, 267 N.C. 599, 148 S.E.2d 565, 569 (1966), the North Carolina Supreme Court held, 'The defendant may believe what he will as to peyote and marijuana and he may conceive that one is necessary and the other is advisable in connection with his religion. But it is not a violation of his constitutional rights to forbid him, in the guise of his religion, to possess a drug which will produce hallucinatory symptoms similar to those produced in cases of schizophrenia, dementia praecox, or paranoia, and his position cannot be sustained here-- in law nor in morals.'

The District Court denied appellant's request for a bill of particulars which sought information to ascertain whether it was the Government's intention to rely on his possession of marihuana prior to entry into Mexico or following importation into the United States from Mexico, and whether it was the Government's contention that he was guilty of the overt act of smuggling. The smuggling count was withdrawn from the jury by the court so we turn our attention to Count 2, which charges appellant with transportation and concealment of marihuana after knowledge of importation, and Count 3, which charges transportation and concealment without having paid the necessary transfer tax. Appellant stated that the information requested was necessary to prepare an adequate defense and to avoid the possibility of double jeopardy. Appellant further contended that depending on the theory of the prosecution, different legal defenses would arise, and the requested information was necessary to decide whether he should exercise his right to testify. From a reading of Counts 2 and 3 we conclude that they are not duplicitous. Each count states the date and the place of the offense and adequately apprises appellant of the nature of the offense charged. Granting or denial of a bill of particulars is a matter within the sound discretion of the trial judge, and will not be interfered with on appeal unless there is abuse or prejudice. Joseph v. United States, 5 Cir., 1965, 343 F.2d 755; Robertson v. United States, 5 Cir., 1959, 263 F.2d 872; Johnson v. United States, 5 Cir., 1953, 207 F.2d 314. There was no such abuse or prejudice here.

Appellant contends, alternatively, that the indictment in this case is fatally insufficient. In this Circuit's decisions in Thomas v. United States, 314 F.2d 936 (1963), and Marquez-Anaya v. United States, 319 F.2d 610 (1963), the defendants were charged with smuggling marihuana and with transportation of the drug without having paid the necessary tax thereon. Proof was adduced by the Government that the marihuana had been obtained by the defendants in Mexico. The court held in Thomas, and reiterated in Marquez-Anaya, that an indictment charging transportation and concealment of marihuana without having paid the transfer tax was necessarily predicated upon the defendants having obtained the drug within the United States, and because of the Government's proof to the contrary, that is, that the marihuana had been smuggled by the defendants into the United States from Mexico, the conviction under the tax count could not stand. However, the instant matter is clearly distinguishable from our holdings in Thomas and Marquez-Anaya. Here, as the case developed, the Government's evidence (through testimony of United States Customs Agent Hatch of statements made to him by the accused) showed that the marihuana was acquired by defendant in the United States. Dr. Leary's own testimony later in the trial was to the same effect and the district judge consequently withdrew the smuggling count from the jury's consideration. The defendant admitted all of the elements of Count 2 except knowledge of importation. The Government, supported by appellant's own testimony, proved the elements of transportation and concealment of the drug under Count 2, although under the statute it was incumbent on it merely to show possession in order to authorize conviction unless the defendant explained his possession to the satisfaction of the jury. Appellant admitted transporting the marihuana from Now York and crossing and recrossing the international border between the United States and Mexico with the marihuana in his possession. He made no effort to explain his possession of the illegal drug to the jury beyond his defense that use of marihuana was a sacramental aid in the practice of his religion-- an explanation we have already pointed out is insufficient and immaterial. In addition to the facts proved by the Government, conviction on Count 3 was also justified by appellant's own testimony-- his candid admission that he had never paid the required tax as a transferee. The counts were, therefore, neither inconsistent within themselves nor with each other.

There is likewise no merit to appellant's argument that the court's instructions implied that possession, not satisfactorily explained, compelled conviction. The court assiduously avoided such an instruction. At the outset the trial judge explained the presumption of innocence which attaches to every defendant brought to trial in a criminal case. He instructed the jury that the Government must prove the accused's guilt beyond a reasonable doubt and defined that term. The district judge quoted the exact provision of the statutory inference in 21 U.S.C. 176a, i.e., 'such possession shall be deemed sufficient evidence as to authorize conviction unless the defendant explains his possession to the satisfaction of the jury,' and explained its meaning in the language of the statute by stating: 'That means, unless he proves to your satisfaction that it was a lawful and a legitimate possession of the marihuana he had.' The court clearly and adequately defined the terms 'unlawfully,' 'knowingly,' and 'with intent to defraud' and twice repeated the necessity of the jury finding such elements beyond a reasonable doubt to warrant conviction. The jury was advised of its affirmative duty to acquit in the absence of such findings. We do not construe the court's instructions as requiring conviction on evidence of possession of marihuana, but only as authorizing it.12 Appellant's argument is, therefore, untenable, especially since he did in fact testify that he knew that his actions were contrary to the laws of the United States.

Appellant contends that the closing arguments to the jury by Government counsel far exceeded the bounds of fair comment, invited prejudice based on educational, economic and regional defferences between the accused and the jurors, expressed strong hostility toward him, asserted that he was irresponsible regarding his child's welfare, attacked him for offering a religious defense, bolstered a witness' credibility and generally inflamed the jury's emotions, amounting to plain and reversible error. Pertinent parts of the arguments to which objections were made are set forth more fully in the margin below,13 but they refer principally to the prosecutor's statements that appellant was 'irresponsible' (especially with reference to the welfare of his children), his defense was a 'colossal hoax,' 'just hogwash,' to Government counsel's statement that 'I cannot remember a case I have felt more strongly about than I have this case,' and his further statement that 'I don't mean to shout, for shouting's sake, but I feel so strongly about this case and his acts that I can't help myself.'

The record discloses that no objection to the remarks of the prosecution was made by the several defense counsel either during or after the argument. The issue was, therefore, waived at the time of trial by the defense. See Forgarty v. United States, 5 Cir., 1959, 263 F.2d 201, cert. den. 360 U.S. 919, 79 S. Ct. 1437, 3 L. Ed. 2d 1534; Van Nattan v. United States, 10 Cir., 1966, 357 F.2d 161; United States v. Sawyer, 4 Cir., 1965,347 F.2d 372; United States v. Aadal, 2 Cir., 1966, 368 F.2d 962.

Judging the case from the viewpoint that most of the evidence which incriminated the accused was admitted and confirmed by him, some resort to emphatic and forceful expression by Government counsel was to be expected. Though the court declined to give the specific charge to the jury requested by appellant that it should acquit appellant if it found his religious claims to be honest and in good faith, it nevertheless permitted Dr. Leary to present his claims fully with reference to his religious and scientific befiefs and to support them with corroborating witnesses. The sincerity of the accused was undoubtedly at issue, and especially his credibility with reference to the possession of marihuana while the defendant was crossing the international border at Laredo. We discern no personal hostility by the prosecution toward the defendant. Though Government counsel's summation of the case at times was strong, a fair reading of the entire argument, taken with the strong evidence of the defendant's guilt largely shown by his own admissions, does not convince us that there was plain error or abuse which affected defendant's substantial right to a fair trial or would justify reversal. Fed.R.Crim.P., Rule 52. That the defendant's teenage daughter was exposed to a home where the free use of marihuana by the family and inhabitants of the household (said to be for religious and scientific purposes) was regular, even routine-- but nevertheless in violation of the laws of the country-- also permitted the prosecutor more leeway in final argument than might be expected under ordinary circumstances, and we are unable to say that zeal overcame fairness.14 $15-18$ Defense counsel attempted to impeach a Government witness, Cutler, who testified on direct examination that he had attended a social gathering at Greenwich Village; that Dr. Leary had smoked marihuana at this party, which event occurred prior to the time which Dr. Leary admitted first using the drug. On cross-examination, counsel for the defense asked the witness, 'How many times have you been picked up for smoking marihuana?' The question was an attempt to establish a criminal record of the witness and admittedly was asked to impeach his credibility.15 The court properly sustained Government counsel's objection. Generally, only prior convictions of felonies or of misdemeanors involving moral turpitude are admissible in evidence for the purpose of impeachment of the credibility of a witness. Roberson v. United States, 5 Cir., 1957, 249 F.2d 737; Ramirez v. United States, 9 Cir., 1961, 294 F.2d 277; Homan v. United States, 8 Cir., 1960, 279 F.2d 767, cert. den. 364 U.S. 866, 81 S. Ct. 110, 5 L. Ed. 2d 88 (1960); Beasley v. United States, 1954, 94 U.S.App.D.C. 406, 218 F.2d 366, cert. den. 349 U.S. 907, 75 S. Ct. 584, 99 L. Ed. 1243 (1955); United States v. Bell, 6 Cir., 1965, 351 F.2d 868. The trial court has wide discretion to limit cross-examination, Roberson v. United States, supra, and the exercise of such discretion should not be interfered with in the absence of a showing of prejudice to the defendant. Alderman v. United States, 5 Cir., 1929, 31 F.2d 499; Foster v. United States, 10 Cir., 1960, 282 F.2d 222. We ascribe no prejudice to the court's ruling. The jury was free to accept or reject the witness' testimony on this peripheral issue and was so instructed by the court. Cutler was not a major witness, though he was used by the prosecution on rebuttal to impeach Dr. Leary's testimony as to when he first began using substantial effect on the verdict in view of the defendant's own testimony that he frequently used marihuana, knowing it to be illegal, even if such use was purportedly for scientific orreligious purposes.

Now, for the first time, on appeal, appellant states that Cutler was, at the time of trial when he testified, under indictment in the United States Court, Southern District of California, for smuggling marihuana into the United States from Mexico, and for bail jumping in connection with this charge; that this fact was known to the Government and not disclosed to Dr. Leary's counsel. The Government's answer is that Cutler had no prior convictions, had not been tried as yet on the California federal cases, and that if defense counsel had asked for this information it would have been given. We observe that the pending charges against Cutler are in no way connected with the present case, and that no attempt was made by counsel at the trial to go into any relationship between the witness and the prosecution which might have reflected on his credibility, except to show that the Government paid his expenses to come to Laredo to testify. There was obviously no suppression by the Government of Cutler's criminal record for there were no convictions against him when he testified, nor did the pending cases in California relate in any way to the present prosecution. The contention is without merit.

Appellant contends that the presumption under 21 U.S.C. 176a, that marihuana is illegally imported and that a possessor has knowledge of illegal importation, is arbitrary and irrational in view of his contention that a high proportion of marihuana in the United States is domestically grown. To prove his point he has compiled certain statistics in published annual reports of the Bureau of Narcotics, 1957-1964, inclusive. This proof was not offered at the trial of the case and we assume we are asked to take judicial cognizance of information found in these public reports. By process of reasoning, appellant's counsel states that of all the marihuana in the United States well over 99 per cent has been domestically grown. Of course, the Bureau of Narcotics reports make no such statement and we are not impressed that it is correct. Obviously the information found in appellant's brief is incomplete for undoubtedly much marihuana from outside the United States does reach this country. Appellant does not purport to tell us what this amount is or to estimate it beyond his own rationalization of certain statistics he has assembled from published reports. No reference is made to seizures by state authorities nor is any provision suggested for the amount of marihuana which comes into the United States undetected. In other published reports which are equally available to the Court as are the Bureau of Narcotics annual reports relied on by appellant, United States Commissioner of Narcotics, Henry L. Giordano, testified before the House of Representatives Subcommittee of the Committee on Appropriations, on February 8, 1967, that 'most of our marihuana comes from Mexico.'16 This official statement, which is in direct contradiction to the conclusions in exhibits prepared by appellant's counsel, shows rather well that appellant's information, submitted for the first time on brief, and not the subject of proof contradictorily at trial, is neither complete nor convincing.

In Caudillo v. United States, 9 Cir., 1958, 253 F.2d 513, the Ninth Circuit upheld the constitutionality of the presumption in 21 U.S.C. 176a, that marihuana is illegally imported and the possessor has knowledge of importation.17 The court noted the necessity under the requirements of Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943), of rational connection between the facts proved and the ultimate fact presumed, and said:

'Though there might be differences of opinion, it can reasonably be argued that the facts of marihuana importation are so well-known, particularly to marihuana users, that there is a 'rational connection between the fact proved and the ultimate fact presumed."

The Ninth Circuit in Caudillo also pointed out, 'The statutory language in question has long existed in the narcotic laws' and was upheld by the Supreme Court in Yee Hem v. United States, 268 U.S. 178, 45 S. Ct. 470, 69 L. Ed. 904 (1925), in reference to opium. The court said that as to marihuana, 'If experience, is the test of the validity of an inference, then the legislatively created inference in this case is well supported.' 253 F.2d at 517.

We believe, as was expressed so well in United States v. Gainey,380 U.S. 63, 67, 85 S. Ct. 754, 757, 13 L. Ed. 2d 658 (1965):

'The process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.'

That being true, and with the benefit of the legislative history to which we have already referred, it is clear that it is experience of Congress shows that it is gravely concerned with the smuggling, transportation, concealment and possession of imported marihuana. When Congress passed the Marihuana Tax Act of 1937 from which are derived certain provisions of the United States Code involved here, i.e., 26 U.S.C. 4741, 4742, and 4744, extensive Congressional hearings preceded the passage of the Act. They are referred to in appellant's brief as Hearings before the Committee on Ways and Means, 75th Cong., 1st Sess., H.R. 6385 (1937). The report of the proceedings shows unmistakably that Congress intended 'to discourage the current and widespread undesirable use of marihuana,' and that the development of a scheme of taxation would 'render virtually impossible the acquisition of marihuana by persons who would put it to illicit uses.' Witnesses referred to the 'injurious effect it has upon the public health and morals of this country,' especially for younger people who are attracted to it. The then Commissioner of Narcotics, Mr. Anslinger, said, 'This drug is entirely the monster Hyde, the harmful effect of which cannot be measured.' He pointed out that all of the states had passed laws against marihuana. Numerous expert witnesses referred to the dangerous nature of the drug, its effect on those who use it, to criminal episodes of terrible character which accompanied its use. The evidence was voluminous and convincing that marhuana is a serious evil to society. Thus did Congress wisely and prudently enact this law and clearly meet the 'compelling state interest' test imposed in Sherbert v. Verner, 374 U.S. 398, 83 S. Ct. 1790, 10 L. Ed. 2d 965 (1963).18

Appellant contends that 26 U.S.C. 4741(a), which imposes a tax on all transfers of marihuana, and 26 U.S.C. 4742, which requires that such transfers be accompanied by written order forms issued by the Secretary of the Treasury, are unconstitutional in that they violate the Fifth Amendment privilege against compulsory self-incrimination. He argues, therefore, that his conviction under Count 3, which charged that defendant transported and concealed marihuana, being a transferee required to pay a transfer tax, in violation of 26 U.S.C. 4744(a), is invalied. This Circuit has had occasion to rule on this precise point in Haynes v. United States, 5 Cir., 1964, 339 F.2d 30, cert. den. 380 U.S. 924, 85 S. Ct. 926, 13 L. Ed. 2d 809 (1965), in which the court found no merit to the contention 'that the appellant was required to incriminate himself by registration and payment of taxes and, hence, that the statutes under which he was convicted are unconstitutional * * *.'19

We find, without merit, appellant's final point of error that the District Court erred in refusing to instruct the jury that they could consider as a defense to Count 2 defendant's honest and sincere belief that he had a right to possess marihuana in violation of the law because of his religious and scientific beliefs. Appellant argues that the jury could have found, if so instructed by the court, that this belief negated the specific intent necessary under 21 U.S.C. 176a. This point is in effect substantially similar to those contentions of appellant which we have already considered and rejected relating to the defense of religious claims that appellant was honest and in good faith in his use of marihuana, and to the contention that the presumption in Section 176a that possession of marihuana is sufficient evidence to authorize conviction unless explained by the defendant to the satisfaction of the jury is unconstitutional.

Affirmed.