In these four appeals by the United States from orders vacating the convictions of John Albert Liguori, Jose Gonzalez Perez, Francisco Rivas and Israel Vallejo, involving, respectively, possession of small quantities of cocaine and marihuana, and in one instance possession of 48 pounds of marihuana, there is presented for the first time in this Circuit the question whether the Supreme Court's decisions is Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) and Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), which held unconstitutional the presumptions contained in 21 U.S.C. Sections 174 and 176a and 26 U.S.C. Section 4704(a), are to be applied retrospectively to convictions attacked collaterally under 28 U.S.C. Section 2255.1 The District Judge in each case vacated the judgment and sentence, holding that the Leary and Turner decisions applied.2 For the reasons stated in this opinion, we affirm.

Appellee Liguori was convicted in July of 1966 by Judge Weinfeld, sitting without a jury, for: (1) receiving, concealing, selling and transporting a half-grain of cocaine hydrochloride, in violation of 21 U.S.C. Sections 173 and 174; (2) purchasing, selling, dispensing and distributing cocaine hydrochloride not in or from the original stamped package, in violation of 26 U.S.C. Sections 4701, 4703, 4704(a), 1771(a) and 7237(a); and (3) receiving, concealing, purchasing, selling and transporting a half-ounce of marihuana, in violation of 21 U.S.C. Section 176a. The Government proved at the trial that Liguori mailed a carton from New York City containing the cocaine and marihuana to a friend in Florida in June of 1964. But no direct evidence showing that the marihuana and cocaine were illegally imported or that appellee knew they were illegally imported was introduced at the trial. Liguori made no objection, however, to the use of the presumptions covering those elements of the crimes charged. This Court affirmed the conviction and five-year sentence after an appeal. United States v. Liguori, 373 F.2d 304 (2d Cir. 1967). Liguori filed a motion to vacate his sentence and conviction under 28 U.S.C. Section 2255 after the Leary and Turner decisions were announced. Judge Weinfeld decided that Leary and Turner were to be given complete retrospectivity and vacated the judgment and sentence as to the first and third counts, the sentence on the second count having already been served.

Appellees Perez and Rivas were also convicted in July of 1966, for receiving and concealing 48 pounds of marihuana, in violation of 21 U.S.C. Section 176a, and of conspiracy to do so. They, along with two other men, had been arrested after agreeing to sell the marihuana to a federal agent in New York City. Again at the trial no direct evidence of the illegal importation of the marihuana or appellees' knowledge thereof was introduced. The court instructed the jury on the basis of the presumption, which charge was excepted to by appellees. Perez received a ten-year sentence as a second offender and did not appeal his conviction, and Rivas's appeal from a five-year sentence was dismissed for lack of prosecution. Appellees filed separate motions to vacate their convictions under 28 U.S.C. Section 2255 after the decision in Leary was handed down, and Judge Palmieri granted the motions, holding that Leary applied.

Appellee Vallejo was convicted in March of 1966 for having purchased, sold, dispensed and distributed 3.22 grams of cocaine other than in or from the original stamped package, in violation of 26 U.S.C. Sections 4701, 4703, 4704(a), 4771(a) and 7237(a), and for receiving, concealing and facilitating the transportation of the cocaine, in violation of 21 U.S.C. Sections 173 and 174. Vallejo and another man were apprehended in New York City in September of 1964 after a federal narcotics agent, while walking toward them, observed them dropping tinfoil envelopes to the pavement. Here also the Government introduced no evidence as to the illegal importation of the cocaine, appellee's knowledge of the illegal importation, or that he had purchased, sold, dispensed or distributed the cocaine in other than the original stamped package. Similarly, the trial judge incorporated the presumptions in his charge to the jury, and appellee made no objection. Appellee received a ten-year sentence as a second offender and his conviction was affirmed from the bench on appeal. Vallejo filed his motion to vacate the conviction under 28 U.S.C. Section 2255 after Turner was decided, and Judge MacMahon granted the motion, holding that Turner applied retrospectively.

Although appellees Liguori and Vallejo did not question the use of the presumptions at trial, and apparently none of the appellees raised the issue on appeal, we hold that they are not therefore barred from raising it now. At the time of the trials only one case, Erwing v. United States, 323 F.2d 674 (9th Cir. 1963), had held the presumption of 21 U.S.C. Section 174 unconstitutional with respect to cocaine, but no other circuit followed this holding and the decision was not binding in this Circuit. Other than Erwing, the decisions solidly sustained the presumptions against constitutional attack. United States v. Coke, 364 F.2d 484 (2d Cir. 1966), cert. denied, 386 U.S. 918, 87 ,. sCt. 877, 17 L.Ed.2d 789 (1967) (21 U.S.C. Section 174); United States v. Gibson, 310 F.2d 79 (2d Cir. 1962) (21 U.S.C. Section 176a); Jones v. United States, 377 F.2d 742 (8th Cir.), cert. denied, 389 U.S. 885, 88 S.Ct. 157, 19 L.Ed.2d 183 (1967) (26 U.S.C. Section 4704(a)). Under the Circumstances the failure to make what was then a patently futile objection is not a bar. United States v. Lopez, 414 F.2d 272 (2d Cir. 1969); United States v. Scott, 425 F.2d 55 (9th Cir. 1970 in banc); Martone v. United States, 435 F.2d 609 (1st Cir. 1970).

In Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the Supreme Court held that the presumption in 21 U.S.C. Section 176a,3 that allowed a jury to find illegal importation of marihuana and defendant's knowledge thereof solely from possession, violated the due process clause of the Fifth Amendment. Using the 'rational connection'4 test for judging the constitutionality of statutory presumptions, the Court could not say with 'substantial assurance' that a person in possession of marihuana was more likely than not to know that it was illegally imported, as it found that 'a significant percentage of domestically consumed marihuana may not have been imported at all * * *.' So the presumption of a defendant's knowledge of the illegal importation was struck down. The Court applied the same standard in invalidating the presumption of illegal importation and knowledge of illegal importation, contained in 21 U.S.C. Section 174,5 with respect to possession of Cocaine in Turner v. United Staes, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), but upheld the statute with respect to possession of heroin and opium. The Court found that while all hereoin and opium is illegally imported, cocaleaves are legally imported for processing into cocaine and that more cocaine is legally produced in the United States than is smuggled into the country. Turner also struck down, with respect to the cocaine then involved, the presumption of 26 U.S.C. Section 4704(a),6 which made the absence of the appropriate tax stamps prima facie evidence of purchasing, selling, dispensing and distributing a narcotic drug not in or from the original stamped package by the person proved to have been in possession of the drug. While the Court found the presumption rational as to heroin and opium, it held that the small amount of cocaine involved (14.68 grams of a cocaine and sugar mix) would not allow an inference of dealing in the drug, and the amount of theft of legal, stamped cocaine made the statutory presumption infirm as to purchasing or dealing in unstamped cocaine. As we find no significant difference between the rationale of Leary and that of Turner, at least as applied to small amounts of cocaine, we shall not distinguish between them in the ensuing discussion.

The Government argues that since the Supreme Court relied heavily on statistical data compiled in 1967 and 1968 in deciding that the statutory presumptions were irrational and therefore unconstitutional, the Court did not decide their constitutionality as to previous years. So, the argument continues, these decisions are limited to the years in which they were rendered and should not be applied to convictions that became final in prior years. Since the Supreme Court only decided that the presumptions deprived defendants of due process of law when viewed in the light of the contemporary statistics, leaving open the questions of whether or not the presumptions were void from the time of their enactment,7 the Government goes on to claim that this Court should not hold Leary and Turner applicable to these appellees, at least not before remanding these cases to the District Court for a hearing as to the validity of the presumptions in the years involved. As we are persuaded that this is not an accurate description of the findings in Leary and Turner, this argument must fail.

Dr. Timothy Leary was arrested for transporting marihuana in December of 1965 and tried in March of 1966, about the same time that appellees Perez and Rivas were arrested and tried. In Leary the Supreme Court decided the rationality of the Section 176a presumption as to Leary's knowledge of illegal importation, which meant his knowledge at the time of his arrest. Since the Court found the presumption invalid as to Dr. Leary's knowledge of illegal importation in December of 1965, it must also have been without a rational connection as to appellees Perez's and Rivas's knowledge in March of 1966. Moreover, in Leary, the Court referred to testimony and reports on smuggling and domestic production of marihuana presented at hearings held in 1955 and 1956 by the House and Senate committees on the bill containing the Section 176a presumption. It also consulted reports made by the Bureau of Narcotics between 1956 and 1967 on the amount of marihuana smuggled into the United States and the quantity of domestically grown marihuana that was discovered and destroyed by law enforcement agencies. The holding in Turner8 rested heavily on the findings made in Erwing v. United States, 323 F.2d 674 (9th Cir. 1963). There the Ninth Circuit found no evidence as to any importation of cocaine hydrochloride into the United States, legally or illegally, and declared the Section 174 presumption invalid as to cocaine possessed by the defendant in 1959. There was also testimony in Erwing that almost no cocaine had been imported into the United States, legally or illegally, before 1959. The Court supplemented the findings in Erwing with statistical data on cocaine smuggling and domestic cocaine production compiled by the Bureau of Narcotics in 1967, and held that even though there is a substantial amount of smuggling of cocaine into the United States now, still much more cocaine is lawfully produced here. We conclude that Leary and Turner held the statutory presumptions to be void for the periods here at issue.

It is the Government's second principal contention that raises what we consider to be the most interesting question on these appeals. It is insisted that the three tests of Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) were not properly applied and balanced, that undue emphasis was placed by the courts below on the 'purpose' of the decisions, to 'correct a flaw in the fact-finding process,' and insufficient consideration given to the countervailing elements of 'reliance' by law enforcement officials and the serious disruption of the administration of criminal justice that it is claimed would follow a ruling that the declaration of invalidity of these presumptions is to be given retrospective effect. It is asserted that each and every one of the new constitutional rules of criminal substantive law and procedure that has been made either prospective or retrospective has removed a substantial impediment to a fair fact-finding process; and, in effect, that the Linkletter tests come down to a 'matter of degree' and a 'question of probabilities' that are something in the nature of divinations, too insubstantial in these cases to warrant a holding giving the invalidation of the presumptions retrospective effect. These arguments cannot be lightly dismissed as utterly frivolous. As shown in the Appendix to this opinion, which is a 'Summary of Supreme Court Decisions After Link-letter on Question Whether New Rulings Holding Certain Criminal Procedures Unconstitutional Should be Applied Retrospectively,' some of these decisions on the subject of retrospectivity were made contemporaneously with the announcement of the new rule, some were made in brief Per Curiams containing a very limited, if any, statement of reasons,9 and others in more or less lengthy opinions, often with one or more dissents. The spate of opinions by various courts10 and articles in law reviews11 discussing, criticizing and applying the Linkletter tests, may indicate that it is time to take a new look.

At least we may echo the statement of Mr. Justice Harlan in his dissent in Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), at p. 260, 89 S.Ct. at p. 1040, that 'the retroactivity doctrine is still in a developing stage.' The confusion generated on the oral argument of these cases and in the briefs by the earnest efforts of able counsel, on the one hand, to persuade us that the application of the three-prong composite Linkletter test requires us to reverse the orders below, and, on the other hand, that its application compels us to reach the opposite result, has suggested that we seek the guidance of some more simple and less complicated approach.

We think these cases now before us can be disposed of by applying the simple and universal rule that a judgment in a criminal case in which the prosecution has offered and the record discloses no proof whatever of various elements of the crime charged has a fatal constitutional taint for lack of due process of law. As we said in our in banc decision in United States ex rel. Angelet v. Fay, 333 F.2d 12, 16 (2d Cir. 1964), aff'd, 381 U.S. 654, 85 S.Ct. 1750, 14 L.Ed.2d 623 (1965), the question of whether to grant retrospectivity in this type of case should be decided with 'precisely the same operations of the judicial process as does the development of a body of decisional law in any other field.' We must examine the principles involved in the constitutioanl ruling under consideration and decide whether, upon 'considerations of convenience, of utility, and of the deepest sentiments of justice,'12 the judgments of conviction were so 'tainted by some fundamental unfairness within the orbit of constitutional law,' United States ex rel. Angelet v. Fay, supra at 21, that we cannot allow them to stand.

Leary and Turner support the basic principle that a proper finding of guilt cannot be based on evidence that is rationally insufficient to support that finding. Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). In the cases before us, as in Leary and Turner, the Government relied on a presumption that was without reason in fact to prove a material element of the crime, so that these convictions were tainted by a total lack of proof as to that element. These cases contain not only 'some fundamental unfairness,' therefore, but the worst type of fundamental unfairness, since the Government introduced no proof at all in any of them to sustain a finding that the respective appellees had knowledge of the illegal importation of the marihuana or cocaine, or that appellee Vallejo purchased cocaine in other than the original stamped package, all principal elements in the crimes charged. Even though appellees may have been in possession of the cocaine or marihuana, for a federal law to have been violated there must have been, as the statutes then read, illegally imported cocaine or marihuana. So we hold that these convictions were properly vacated on the authority of Leary and Turner and we affirm the orders appealed from.

We decide these cases on the narrow basis just above stated. We express no opinion with respect to other cases, where guilty pleas have been the basis for judgments of conviction for similar violations of the narcotics laws or where some evidence, however slight, has been received on the subject of the importation of marihuana or cocaine and knowledge thereof by the defendant.

The orders are affirmed.

(APPENDIX OMITTED)