*1 WATSON, Jr., Appellant, Albert America, STATES
UNITED Appellee.
No. 21186. Appeals
United States Circuit. District of Columbia
Argued Jan. 25, 1969.
Reargued En June Banc July
Decided Judge, Skelly Wright, con- Circuit
J. opinion. filed
curred and Judge, Bazelon, concurred Chief opin-
part part and filed dissented in
ion. Judge,
Robb, dissented Circuit opinion.
filed *2 Rehearing
On En Banc Fisher, (appointed Mr. Thomas G. court) appellant. Wilens, Philip Atty., Department Mr. of Justice, of the bar of the Court Appeals York, pro of New hac vice special court, appellee. leave Mes- Bress, Atty. srs. David at the G. U. S. filed, time the brief was Albert W. Overby, Jr., Atty., U. Asst. and Harold S. Titus, Jr., H. Principal now Asst. S.U. Atty., brief, appellee. were on the Flannery, Atty., Thomas A. U. S. Messrs. Roger Zuckerman, E. Asst. U. S. Atty., ap- appearances also entered pellee. Bowman, Mr. M. Addison for American Civil Liberties Union Fund as amicus curiae. BAZELON, Judge, and
Before Chief WRIGHT, McGOWAN, TAMM, LEV- ENTHAL, ROBINSON, MacKINNON ROBB, Judges, sitting en Circuit banc. Judge:
McGOWAN, Circuit appeal This fed- a conviction for eral narcotics heard offenses was original appeared stamped package court en banc and not because original package, a present important questions stamped Robin- from the drug, California, is, capsules” narcotic son v. thirteen heroin, de- These violation of 26 U.S.C. L.Ed.2d 758 4704(a).1 appel- The other count asserted rived from the circumstance *3 heroin, appellant undisputedly had con lant was addicted to “facilitated only drug, proved cealment and sale of a and the ease narcotic Government’s * ** is, possession capsules thirteen said was found in after there daily hydrochloride capsules imported heroin had one-half of his been —about Appellant law, usage. contrary into the in the United States raised District knowledge Court, here, [appellant],” with the con the issue of whether trary Eighth Amendment, light prohibitions in Robin- of 21 U.S.C. § generally son, exposure 174.2 barred his and, prosecution punishment statutory The references are not con- particular, in invalidated as cruel body charge, tained in the of either but ten-year mandatory unusual mini- caption of the indictment includes prison sentence, mum of the ameli- bereft following: possibilities suspension, parole, orative probation, imposed upon
or 4704(a) which was “Violation: 26 U.S.C. ap- him. For the reasons hereinafter 21 U.S.C. 174 appellant’s pearing, we leave conviction (Possession Drug) of Narcotic undisturbed, but vacate the sentence and (Facilitation and concealment of sale resentencing remand for which shall in- knowing drug, narcotic same to have clude consideration the District Court imported law).” contrary been possible appellant of the commitment against complaint appellant The made provisions under the Narcotic arresting officer for a viola- was Addict Rehabilitation Act of 1966. 18 alleged 4704(a), tion of 26 U.S.C. § U.S.C. 4251-4255. §§ appellant “unlawfully pos- drug, wit, capsules sess a narcotic Appellant’s heroin.” commitment Proceedings A. Trial papers pending grand jury action reiter- Appellant was indicted in two counts. exactly language ate this of the com- charged having “purchased, One him with although plaint, neither 26 U.S.C. § sold, dispensed, distributed, in 4704(a) purports nor 21 in U.S.C. 4704(a) 1. 26 : U.S.Code § imported brought to liave been or into (a) any “It shall be unlawful contrary law, the United States or person purchase, sell, dispense, or conspires any to commit of such acts drugs except distribute narcotic violation the laws of the United original stamped package or from the imprisoned States shall be not less than original stamped package; and the ab- twenty years and, five or more than appropriate taxpaid stamps sence of addition, may be fined not more than drugs prima from narcotic shall be $20,000. subsequent For a second or facie evidence aof violation of this sub- (as offense determined under section person posses- section in whose 7237(c) of the Internal Revenue Code sion the same be found.” 1954), impris- the offender shall be oned not less than ten or than more 2. 21 U.S.Code : years § 174 forty and, addition, may fraudulently knowingly “Whoever or $20,000. fined not more than imports brings any drug or narcotic in- “Whenever on trial for a violation any territory to the United States or of this section the defendant is shown jurisdiction, its control or con- possession to have or to have had trary law, receives, conceals, buys, drug, possession narcotic such shall be sells, any or in manner facilitates deemed sufficient evidence to authorize transportation, concealment, or sale of explains conviction unless the defendant drug being possession narcotic after im- to the satisfaction of ported brought in, knowing jury.” the same sup- insanity. Two testified a substantive witnesses make terms to port Dr. One was defense. offense. Baughman, psychiatrist the St. challenge pretrial to the indictment No ap- staff, examined had Elizabeths who jury made, and trial was before during pellant di- He his commitment. after a commit- District ensued agnosed having appellant “schizoid ment, appellant’s motion, to St. currently personality,” and as of Hospital exami- a mental Elizabeths He time of also character- offense. finding, nation in a which resulted being ized ad- a narcotics challenged by ap- not then or thereafter and, connection, dict he related pellant counsel, appellant was or his told, what he had he had been report competent also stand trial. verified, as to without mental stated that begun history. *4 This to have was said of al- defect at the time disease or appellant Army hospital when in an was leged offense.3 receiving Japan, a treatment for bat- tle The consisted wound suffered in the Korean War. Government’s case Sergeant given testimony Morphine appellant was then of two witnesses. Army pain. Metropolitan of the testi- ease his After Didone Police injections fied that he obtained a search warrant official treatment dis- were continued, began appellant apartment appellant was an in which to receive residing. Japanese sym- company In heroin from a with two other nurse who officers, pathized Ap- thereby plight. he with executed the warrant. his He pellant and, addicted, found when became was in bed asked and be- civilian life regular except came whether he had a user of narcotics on heroin premises, periods successively directed look those the officers when he was prison fly lying separate on two his trousers on a narcotics viola- nearby parole tions. The found there 'on one table. officers while envelope, bearing stamp began a convictions, appellant small tax containing relapse. voluntarily capsules reported but He this to white powder. parole envelope The his officer and its contents thereafter consent- seized, appellant parole were ed to an was arrest arrested. violation preliminary by Sergeant A a return field to the test United States Public upon Hospital Lexington, Didone Health his return the narcotics Service squad presence office Kentucky, showed the where he had earlier served opiate capsules. element years two of his second sentence. After Lexington, stayed he came out of off he prosecution The second witness was going heroin for some nine months while government chemist, who testified that school, again but analysis resumed his his use capsules revealed presence heroin, dropped albeit an undeter- heroin out of school. mined amount. Baughman length Dr. testified Appellant testify own his appellant’s insecurity about emotional defense, represented which defense was and the reason for it. He conceded that guilt by be the absence of reason appellant had “some freedom of choice” Appellant personal was pellant’s appointed released his counsel to men- seek a pending trial, bond but that bond was re- supporting tal examination. In his affi- voked within a few weeks because of the describing davit his conferences appel- violation release appellant, conditions and counsel related in- apparent lant’s ability return to the explain use of nar- lapses, except these custody, ap- cotics. Before his return to long standing his addiction was of pellant charge was arrested on a great car- that he was under emotional strain rying deadly weapon (loaded ; pistol) gone because he had to his father’s house pleaded guilty directly upon in General Sessions release and had been turned Court and was away sentenced to confinement as unwelcome. year. prompted ap- one These events addiction, question legal and that this latter and what and “knew what was along jury in- legal.” was one for the with the sanity ap- Appellant’s counsel issue. Dr. witness The other defense reasoning, peared acquiesce in at St. psychologist Stammeyer, a clinical further, press and did not the matter ap- examined also who had Elizabeths although remain he asked that the motion during and sub-
pellant commitment his of record.4 psychological jected to a number him affirmatively responded Neither side appellant hav- tests. He characterized in- invitation to submit court’s probably “personality disturbance given structions, and those thereafter paranoid personality.” classified as best objected any particular. were not to in witness rebuttal Government’s that, There was no instruction Platkin, insanity was Dr. defense jury addict, appellant found to be an Dr. psychiatrist who was Elizabeths St. brought acquit. jury in a should Baughman’s expressed supervisor. He guilty; verdict of and in due course af- was not view to be that filed an Government information at the time flicted mental illness appellant’s prior convictions. These professed him- Dr. Platkin the offense. convictions, were two federal narcotics awas self to satisfied that language described in the of the informa- addict, find his did not margin.5 tion as set forth in the As *5 mental an indication of addiction required was to do under the statute illness. convictions, reason of these the appellant years imprison- sentenced to ten evidence, the of At the conclusion this count, ment on pension, sus- each neither with to direct court was asked the defense parole probation, nor available ground judgment acquittal on the 174; to him. 21 §§ U.S.C. § U.S.C. insanity, do Ac- but declined to so. 4704(a), 7237(a) (d). and quittal requested then “on constitu- was grounds in decision tional view of the The sentences to run con- were directed im- currently other, the Robinson case that would be proper and the with each with criminally an ad- incarcerate weapons General Sessions sentence on the judge, charge. trial brought dict for his addiction.” The up the The court itself motion, ruling expressly without on the question of a recommended commitment depended observed that it on the fact Lexington and, hospital to the after colloquy ended, 4. The brief August 31, 1953, as follows: 5. 1. or about the On only point charged Counsel]: I [Defense defendant was in the United Robin- wanted to make that States District for the District of holding that an son case the was addict Columbia with violations of the Federal criminally could not be incarcerated for narcotic statutes Criminal Case No. dealing 1379-53; guilty his addiction. We are on was found or about addiction, dealing April 26, 1954, a crime of but we are four the in- counts of possession, charging with the crime of which is dictment of 26 violations U.S.C. closely (Harrison related to so addiction that Narcotic 2253a and 2554a [sic] same, Act) ; imprison- becomes one and the effect. and was sentenced Well, you years twenty THE I COURT: think ment to five on months assuming you May that what have shown is or about addiction, depends August and result on 2. On or about jury charged what has been shown here. defendant in the was ' they I don’t know what think has been States District of District Court for the shown, but it has to be submitted Columbia with violations of the Federal They may them. think an that he has narcotic statutes in Criminal No. Case addiction, they may pleaded 831-54, guilty but on the other on or about Janu- ary 10, 1955, hand think that he doesn’t have in- to three counts of the addiction, charging or that he insane. dictment violations of 26 U.S.C. your point, 2553(a) 2554(a) [Defense Counsel] : see and and 21 § U.S.C. § However, (Harrison Your Honor. I would like Act and Narcotic Jones- impris- Act) to leave the motion on the record. Miller sentenced was * * * certainly. Yes, years. THE COURT: onment for five receiving volving sale, purchase an affirmative answer to its inquiry appellant narcotics,” as whether the Government as- addict, appellant was an serted recommended not convicted was Lexington. being addict, pur- sentence be served in This “for an for the but out recommendation has not carried chase and been sale narcotics.” because, passage the Narcotic with the appeal division which heard Lexington Act Rehabilitation opinion issued an December longer Hospital accepts treatment writing Judge Bazelon, Chief for him- serving regular terms, prison persons Judge Robinson, self and found no error eligible for takes those who are dis- respect handling of the trial court’s position Appellant under that Act. insanity defense, and, accordingly, eligible by prior not so his two reason of guilt jury’s left verdict of intact. convictions; serving and he is side, opinion On the constitutional prison his sentence facilities of appeared to turn aside due the District of Columbia. process referring contention to in- Appellate Proceedings. B. The sanity pharmacological duress court, appeal On division of alternative defenses. See Note 18 appellant principally addressed himself opinion. up- the division’s Its focus was insanity He failure of his defense. on the Robinson contention urged refusing (1) court erred in Eighth Amendment either forbade insanity acquittal to direct an on the punishment all, misleading ground giving (2) in- punishment years or a as ten severe continued, struction on this issue. He probation parole. without As however, press assertion former, although opinion noted evidence no more than of record showed logical problems inherent Robinson’s possessed seeming punish- differentiation between use; supply own of narcotics for his ing addiction, hand, pun- on the one *6 was, and his constitutional formulation ishing possession use, other, the it on insanity (1) alternatively, that if the thought their that could come resolution unavailing, fail- defense was a was there Supreme Any from the Court. ardor process ure of due in omission the law’s might have had to task undertake this provide to a defense of involuntariness confessedly by subsequent was cooled the compulsions derived of his ad- from the expressions of the in Powell California, diction, (2) Robinson v. Texas, 392 20 U.S. mandatory year supra, the barred ten (1968), L.Ed.2d a 1254 bare ma- where Eighth sentence under the Amendment. jority Eighth found the Amendment no Government, appellant, The like the impediment prosecution to the criminal devoted most of its attention to the in punishment and of a alcoholic chronic sanity point. page a the and half of public drunkenness. its brief to devoted the constitutional claim, mainly upon Although Judges earlier deci relied Bazelon Robin- sions in this court which have refused son a “Powell asserted belief that does Eighth pursue argu preclude holding eighth to Amendment the a the that properly prohibits punishing ment as one “more to made amendment ad- Supreme to possessing exclusively the Court.” v. United dict Castle narcotics 398, 401, U.S.App.D.C. use,” they 120 for his own did feel (1964), denied, unusually heavy F.2d puts 381 Powell cert. “an burden proof” upon L.Ed.2d S.Ct. one who contends that by punished compelled the characterized Court’s the conduct was opinion they explicitly Looking record, in Robinson as dis a disease. to the claiming any purpose thought restrict the met to was not this burden prosecution by degree “required appellant to what in addicts light any punish- the Powell, Court characterized “crimes in- as to bar observing eighth apartment, capsules amend- other in ment whatever being by appellant the room and told ment.” purchase more were available if purport hold opinion did to What the property wished to return. The to be particular man- sentence was language was, in the searched for was excessive dated for so warrant, “heroin, syringes, the quets, tourni- length incidence its and harsh its paraphernalia cookers used Eighth Amendment’s fall afoul to preparation retail,” of heroin for punishments. on cruel and unusual ban paraphernalia prepara- other “used in the holding was, implement how- this How ever, professed heroin, dispensation” tion and present dilemma a “any drugs illegally other held.” narcotic power by posed court’s doubt as property The seized inventoried lighter sentence, prescribe on return to the warrant follows: hand, to trench a disinclination one legislative containing primacy envelope “Cream traditional colored sentencing establishing caps powder policy, on white Thus, disposition was definitive other. stocking Nylon containing cap 2 bottle parties postponed invited were while cookers views as to what to submit their eye dropper syringe, plastic disposition should—or could—be.6 syringes, needles opinion The of the division’s issuance containing envelope Cream colored by however, followed, motions first was cooker, top eye syringe dropper bottle re- invited to extend the time for the envelopes 2 cream colored oth- sponses action certain until after papers” Miscellaneous by appel- a motion er motions. One requested by par- produce medical submissions lant the Government allegedly propriety ties as extent Jail which records D.C. were, however, symp- punishment receiv- lesser show withdrawal would they little, course, due did This ed in toms after his arrest. denied, dispel anything, described the dilemma also motion as was opinion. in the court’s to remand the record to Government Government legislative pur- history purpose of ena- adduced District Court for the bling fixing appel- ported Congress, show that show that Government user, mandatory seller, penalties lant was as well as Narcotics preced- Act Control not intend narcotics. This motion had been distinguish of, filing *7 possessors the mere the with between ed Government’s in, court, pursuant inquiry at and also court’s traffickers narcotics. thought argument known, if to find in the Nar- scheme of the oral as what was trafficker, anything, the appellant cotic Addict of as a Rehabilitation Act of relating purpose put prison proceedings the behind record of the walls long stay are, the of and those who in Govern- issuance the search warrant the words, ment’s return “consistent narcotic offend- thereon. * * * ers no matter what the reason Sergeant support in Didone’s affidavit for their the consistent violations of days that, of relates four the warrant law.” arrest, informer an the search and before that, purchased heroin police supervision Government thus under concluded power plenary latter’s in capsules appellant the view of the in the and from separate opinion, (at pp. member in the third White’s observation Powell p. McGowan) pro- U.S., (Judge 548-549 2162 of 88 S. of the division Ct.) (1) understand that Rohinson “[U]nless be unable “to is to fessed abandoned, by how, being given the use of ad- short narcotics narcotics an beyond duress, with- dict must be the reach the crim- be a narcotics addict one can periodically possessing inal law.” out narcotics” personal (2) use, Justice and share amicus Congress man- purpose to fix sive was patent brief received curiae, possessors, permitted par- datory prison also terms mere who was visiting argument by way ticipate nothing in the oral before could be done lighter punishment upon than full bench. the one he now bears. Should long taken un- after the case was Not course, assertedly persist in its erroneous grants submission, appeared that der however, require and amelioration some in certiorari by Supreme Court of sentence, “only possible involving legality of the certain cases could alternative” the Government presumptions § contained in 21 U.S.C. suggest was the court’s self-kindled 4704(a) raised the and 26 U.S.C. § only constitutional consume flame should might possibility appeal turn provi- statutory penalty much of the so raised; and on an issue not heretofore sub- withheld and sion as from third accordingly an order the court entered offenders, sequent only posses- in found holding abeyance pending matter in narcotics, possibility parole. sion of Supreme decision conceivably could, said, This so was question. in those decisions cases When theory (1) be rationalized forthcoming, however, they were were appel- what is cruel and about unusual upon appellant’s effect convic- without parole and lant’s sentence the denial of U.S. tion. Turner v. United (2) severability clause of U.S.C. (1970). L.Ed.2d 610 90 S.Ct. § And see Minor decided United Appellant’s response plea to the court’s together States, 396 Buie v. help uncompromising. was even more L.Ed.2d 283 availability spurned parole He the bone of proffered by the saw Government. He argu- curiae, in Amicus its brief divisibility statutory neither sen- bane, urged to the court en ment tencing structure, authority any nor (1) interposed Robinson a constitutional 2106 for to order the court U.S.C. punishment barrier reduction made sentence. He who, appellant, an addict like was found argument, for the first time derived an of a of heroin small amount from an extensive examination (2) usage, daily consistent with his own origins history subsequent insanity availability of the familiar Acts, Jones-Miller Harrison bridging the con- defense falls short Congress never intended the substantive gap opened the law stitutional provisions under which Robinson, (3) eligibility classi- apply convicted to who is shown to one felony prior fication founded two addict-possessor. His con- convictions, Narcotic contained in the empowered clusion the court was Act, in- in this Addict Rehabilitation nothing except to do to direct the dis- comprised prior stance two against appel- missal of the indictment equal ap- protection offenses, denied lant. Were court determined to sur- rendering pellant disqualified for him strength mount these limitations main *8 Amicus disposition under that Act. purpose modify and adhere to its to pointed out, addition, punishment, appellant both expressed pref- parole subject Eighth equal pro- erence for to the condi- Amendment and participate tion that he of the one by con- tection could issues be avoided public private programs treatment struing 4704(a) inapplica- as §§ currently functioning in the District of pressed addict-possessor, ble to an Columbia. this on the In this latter course court. posture The matter was in not, this when regard, however, appel- had as sua, sponte place the court concluded supplemental lant memorandum in his appeal en banc. parties filed essay responding opinion, to the division’s briefs, comprehen- new or further to demonstrate an intent actual Congress upon existing to restrict those statutes reversal of his conviction and remand for a new trial. traffickers. stating conception alter- of the its II court, dispositions to the native available construing
amicus
asserted
§§
placing
The effect of our order
(a)
appellant
inapplicable
and 174 as
appeal
is,
course,
en banc
to va
of the in-
would
dismissal
are,
necessitate
opinion;
cate the division’s
and we
against
appellant,
dictment
unless
accordingly, required to
ourselves
address
court
appellant’s
that further documentation
felt
in the first instance to
claims
required
addiction was
respect
of error in
of the treatment
predicate
action, in
for that
which event
insanity
the trial court of his
defense.
purpose
a remand for this
would be
persuaded
We are not
that it was error
future,
For the
such a con-
order.
for that
court to commit that defense
struction,
appropriate procedure,”
“the
judgment
jury.
of the
The record
in the
re-
amicus,
words of
“would be
pattern
reveals the familiar
conflict
quire
proceed by
defendants to
motion ing expert testimony
ap
as to whether
* *
to dismiss the indictment
pellant's
product
offense was the
of an
inquiry
made,
necessary,
with an
“abnormal condition of the mind which
into the facts of addiction.
substantially affects mental or emotional
processes
substantially impairs
be
appellant,
In common with
amicus
havioral controls.” McDonald v. United
imposition
could discern no
for the
basis
U.S.App.D.C.
lighter
upon appellant
of a
sentence
than
(1962).
F.2d
And see Durham
presently
being. Thus,
the one
U.S.App.D.C.
open
avenue
to the court under the
In this fashion the final arbiter belatedly issues, effectively raised in entreated have been both of these submerged uniformly proceeding explain, fully un- done more than it has insanity presentation far, of an de- *12 der the fense, so how it that California is meaningfully not, consistently can hereafter be the with Federal Con- prepared pursued by being stitution, prosecute person is a defendant who upon positions addict, his these to take and, stand the United can States necessary exculpatory criminally prosecute pos- to the where an addict for being proffer approach advanced, personal to session of narcotics for use. his them. A defend- foundations for factual viewing inappropri- these issues as raising these matters as affirmative ant by ate for resolution either now or presumably must bear defenses trial remand, of far from means we are going evi- forward with the burden leaving appellant Al- we found him. as category places him in the dence which sustained, though his conviction of narcotics of an addict solely pursuant is, sentence to of this Part IV prosecu- If use. for his own opinion, being with directions vacated showing by disputes that evidence tion regarded resentencing that he as be on own, persuasion of its the burden eligible disposition un- non-criminal appear beyond would a reasonable doubt der the Addict Rehabilitation Narcotic analogy upon the tradi- to rest it. represented Act. to Amicus itself has insanity defense is instructive tional us, infra, our Note 15 that this action on regard. part large “would in measure” obviate matter of If a court should rule as a “problem.” appellant’s true that It is also not, or law either do statutes as we in a are field of law which constitutionally, encompass non- cannot complex as is of critical concern trafficking use, personal possessors for society; which is not static terms allege then an indictment which does emerging in- psychiatric medical and trafficking arguably be acts of would relevance; which, formation ac- stating subject as not dismissal cordingly, step-by- lends itself best jurisdiction crime which court has step development. try. IV possible approaches Neither these transcript pursued from the think that is obvious been here. We sentencing rulings proceedings respect that the trial definitive with to them eligi- regard appellant meaningfully court did not cannot made on such record, disposition properly un- be left ble to be considered for are more adversary provisions orderly processes der II of Title of the litigation beginning at trial court Narcotic Addict Rehabilitation Act of level, sufficiently fact-finding apparent cir- This is from the and with point that, having close in cumstance after obtained of time the events by question integrity. appellant That confirmation two as to assure its way whereby prior only ju- narcotics convictions recited we know of dicial, Information, appel- legislative, re- the court sentenced as distinct from prison lief, at intermediate lant mandatory the minimum made both the trial and terms sought appellate levels, may by by statute. court’s rigors seeming non-trafficking appreciation ad- addict from the prosecution promptly ex- diction then manifested under the isting raising question It is of whether federal narcotics statutes. its certainly way recommended for wished to be Su- discretion, without col- deferred for determination
or cannot be made criminal
“be
general
liding
Hearings
issue.” Rule
the trial of the
Constitution.
pretrial
raising
12(b)
motion
and ob-
defenses
jections may always,
in the trial court’s
”
* * *
If, following
Lexington,
treatment.
service of sentence
finding
examination,
making
makes a
after
recommendation
rehabilita-
from of addiction and likelihood of
receiving an
answer
affirmative
through treatment,
commit
tion
it shall
question
as to whether
to its
urged
custody
At-
the defendant
Amicus has
an addict.
he was
treatment,
statutory
torney
unless the
General
claim that
us the
adequate
up-
certify
ineligibility
latter shall
treat-
founded
classification of
is,
felony
at ment
not available. This
prior
convictions
facilities
on two
wanting
pe-
appellant,
is for an indeterminate
applied
so
commitment
least as
years
rationality
riod not to
ten
or the maxi-
a denial
exceed
to constitute
equal protection.
mum sentence for the offense of which
*13
the defendant
convicted.
provisions
Addict
the Narcotic
The
of
prefaced
may,
Rehabilitation Act of 1966 are
A defendant
committed
after
so
by
declaration that
it is
a
in
of treatment
an
least six months
by
approved
maintained or
institution
Congress
policy
of
the
[T]he
Attorney General,
con-
thereafter be
charged
persons
or con-
with
certain
ditionally
in
discretion of
released
violating
criminal
Federal
of
victed
report
a
the Parole Board
of
laws,
ad-
to be
who are determined
Attorney
certification
General and
likely to
drugs, and
dicted to narcotic
Surgeon
he “has made
General that
through treatment,
be rehabilitated
progress
his condi-
sufficient
to warrant
should,
prosecution
in
or sen-
lieu of
supervision.” A
tional release under
de-
tencing,
civilly
con-
committed for
under the
fendant so released continues
designed to
treatment
finement and
jurisdiction
in
of
Parole Board and
health, and
effect their restoration to
Attorney
legal custody
Gen-
society
members.
useful
return
any
eral,
“may
appro-
contract with
who
sought
im-
policy
to be
then
any
This
is
agency
priate public
private
or
or
plemented by
noncriminal
a scheme
person
supervisory aftercare.”
for
only to
is available not
treatment which
although
Appellant,
unquestionably an
charged
offenses but
those
with federal
II,
in Title
“addict” as defined
have been tried
also
those who
“eligible
prescribed in
offender” as
guilty.
made for
found
Provision is also
eligible
person
that statute.
convicted
A
voluntarily seek commitment
those who
disposition
II
first
for
under Title
is
although
treatment,
they
neither
for
broadly
“any
con-
individual
defined as
of,
charged with, nor convicted
criminal
against
victed
an offense
offenses.
States,”
ex-
five
is followed
II
Title
of the Act
addressed
an offender
is
clusions. The first
for
is
awaiting
convicted offender
sentence.
convicted of a crime
violence.
It
an addict
one “who habi-
of unlawful-
defines
second is
one “convicted
* * *
selling
tually
any
conspiring
drug
ly importing
narcotic
or
uses
or
endanger
morals,
public
drug,
import
so as to
unless
or sell a narcotic
health, safety,
welfare,
or
sale was for
or
or who is
court
that such
determines
enabling
primary purpose
has
the of-
been so far addicted to the use
drug
drugs
a
which
such
have lost
fender
obtain
narcotic
narcotic
as to
power
requires
personal
his
use because
of self-control with reference
he
drug.” The
addiction to such
his addiction.” If the
believes
against
is
just
there
third
for one
whom
a
been
is
defendant before who has
charge
felony
pending
prior
of a
convicted of
federal
an ad-
offense is
finally
or who
may,
determined
dict,
in
been
lieu
sentenc-
probation
sentence fol-
ing, place
custody
is on
or
whose
him
charge,
lowing
in-
Attorney
conviction on
“for an examination
General
mandatory
cluding
parole
any time on
or
determine whether
is an addict
release,
fully
through
likely
served.
has not been
to be rehabilitated
operative disqualification,
fourth
for an offender
fact the
“who has been
since
felony
more
convicted of
prior
on two or
that exclusion would have necessitated an
inquiry
occasions.” The fifth
one
into whether
was sell-
given
support
who
noncriminal com-
has been
his habit.
second
This
I,
D.C.Code,
is,
event,
mitments under Title
any
exclusion
highly
rele-
law,
prior
vant,
state
on three
more
anomaly
because it creates the
demonstrably
occasions.
that an addict who has
engaged
trafficking
eligible
may
of these exclusions
is the fourth
disposition
for noncriminal
Title
under
thought,
of the two
which was
reason
II,
non-trafficking
whereas
prior
report
federal narcotics offenses
found,
time,
for the third
sentencing information,
ed in
to bar
narcotics for his own use
not.
being
a candidate
curiously
This is
at odds with the Con-
disposition
Title
The Narcotic
II.
gressional preoccupation, underlying the
had
Addict Rehabilitation Act
Narcotic Addict
Act,
Rehabilitation
report
its source
of the President’s
the distinction between
traffickers
Advisory
Commission
Narcotic
non-traffickers,
pur-
and the reiterated
November,
Drug Abuse,
rendered
* * *
pose
punishment
that “strict
1963, by
distinguished group
ex
be meted
*14
required
out where
to the
perts
chairmanship
under the
of our
* *
criminal,
justice
hardened
while
colleague,
beloved senior
E. Barrett
tempered
judgment
and fairness
Prettyman.
in
The statute envisioned
in those cases where it is to the best
report
contemplate any
dis
did not
society
interest of
and the individual
qualification resting upon
prior
two
fel
such
course be followed.” H.R.
ony
appear
convictions, and it would
Rep.No.1486,
Cong.,
Sess., p.
89th
2d
report
purposes
from the stated
of the
Cong.
1966, p.
U.S.Code
& Admin.News
disqualification
broadly
so
4250;
S.Rep.No.1667, 89th
see also
hopeless
conceived
in
would be
conflict
Cong.,
Sess., p.
2d
findings
with the
and recommendations
of the Commission.12
who,
An
at the time the 1966
law,
prior
not
Act became
have two
Although presumably it could
disqualified
dis-
convictions
not
from
is
appellant
be said that
under
also came
enlightened
position under the
new
because,
the second exclusion
theoretical
provisions
ly
least,
Addict Re-
Narcotic
he was
convicted of the act
selling,
who,
it
in
is clear that
not
this was
Contrarily,
habilitation
one
Act.13
prior felony
12. The Senate and House versions of the
two
convictions for securities
elig-
eligible
disposition
Act differed on this exclusion from
fraud would not be
ibility
felony
having
prior
provision
of those
two
was
under the Act.
this
When
convictions,
likely
with the
enactment
Senate
floor
criticized on
House
having
provision.
coverage precisely
no such
There were
those
from
“exclude
many expressions on the Senate floor as
treatment
addicts who most need medical
undesirability
excluding
defender,
services,”
to the
and rehabilitation
the rehabilitative
reach of the bill
com-
who later served on the conference
large
designed
mittee,
class of addicts who would have
said that
Act
prior
help
two
convictions. The House bill
“the narcotic addict who is second-
prevailed
point
arily guilty
on this
in conference.
minor or
of some sort of
report says only
sup-
(Emphasis
The conference
nonviolent
offense.”
plied.) Upon
rationale,
appears
Senate conferees “felt
reasonable to
this
utterly illogical,
exclude hardened offenders with serious
the Act’s
terms of
”
* * *
purposes,
restrict,
least,
criminal records.
not to
at the
prior
involving vio-
exclusion to
crimes
initially
Both House and Senate were
lence.
in accord on the exclusion of an offender
course,
convicted of a crime of
true,
violence. The
is
that an addict
two-prior-felony
not,
category will, upon
subsequent
exclusion is
how-
this
ever,
ineligible
felony conviction,
limited to convictions for crimes in-
second
become
volving
Thus,
having
violence.
an addict
under the
this
terms of the Act. But
propriate
appellant,
like
nar-
suffered
to deal with the issue as raised
holding
regard
in this
cotics
on two occasions be-
court. Our
convictions
in this
any disputed
not
fore
the rehabilitative
does
turn on
is denied
or ob
possibilities
approach.
requiring
scured
Cer-
matters of
new
fact
resolu
inquiry
tainly
prior
tion or
when those two
convictions
the first
instance
showing
possible upon
Appellant
a mere
trial court.
conceded
possession,
long
be a
Government of an addict
narcotics addict of
stand
ing;
only
we
think
discrimination
this is
between
fact crucial
constitutionally
holding.
our
eligibility
two classes
addicts
His
is
would have
patent
unacceptable.
been
Supreme
prior
As the
but for the two
con
another,
entirely ir-
has said in
victions —and those
were
but
convictions for
relevant,
federal
context:
narcotics
offenses
appeal.
same
statutes
involved
Equal protection
require
does not
two-prior-felony
We hold
identically,
persons
all
be dealt with
disqualifying
II,
ap
exclusion
Title
require
it does
that a distinction
plied
facts,
on these
un
pur-
made have some relevance to the
concept
equal
constitutional under the
pose for which the
classification
protection embodied in the Due Process
made.14
Clause of the Fifth Amendment.
prior
Even if
two
Accordingly,
conviction,
we
affirm
convictions
in
be found to have
but vacate the sentence and remand the
proof
selling,
volved actual
even
resentencing,
case for
in the course of
engaged
if it be assumed that he was
Judge
give
which the District
shall
con-
selling
support
his habit contem
disposition
sideration
poraneously
offense,
present
with his
under Title II of the Narcotic Addict
same,
result we reach on this score
Rehabilitation Act.
involving,
does,
as it
the issue of
*15
amenability
prosecution
his
to criminal
It is so ordered.
only
prose
eligibility,
his
after such
conviction,
cution and
to
considered
be
WRIGHT,
Judge
J. SKELLY
Circuit
by
sentencing judge
the
possible
for
dis
(concurring).
position
although
And,
under Title II.15
agree
Judge
I
with
the
Bazelon that
challenge
it
no'explicit
is true that
logic
today’s opinion
clearly
leads
in
made
the District Court
to the as
to the conclusion that
the
nar-
sumption
federal
appellant
ineligible
cotics laws involved in this
do
case
not
consideration,
ap
for such
we
it
think
regarded
15. One court has
the advent of
overlooks
the fact
his chances of
having
the Narcotic Addict Rehabilitation Act
never
second conviction are
why great
markedly
as a reason
should be
by
caution
eligibility,
enhanced
his
undertaking
prior
exhibited
in
prosecution,
“extension
to
for
rehabilitative
beyond
expressly
Robinson
a line
drawn
commitment
under Title
I of
the Act.
Supreme Court, especially
when
unlikely
And even in the
event
that a
Congress
carefully
proce-
felony
has
contrived
second
conviction should eventuate
dealing
grievous
dure
social
after
it is
no means clear that
to
problem.” Bailey
v.
disqualifying
treat
it as
addict
(5th
1967). Although
F.2d
Cir.
noneriminal
rehabilitative
commitment
Act cannot be a final solvent of some of
would constitute a defensible classification
irrationally
claims not
in Rob-
rooted
purposes
in relation to the
of the Act.
says
that,
inson,
it
in
is true
as amicus
On the record before us we are not con-
brief,
problem
its
“the
in this
would
case
hypothetical
fronted with these
or
cases
large
in
measure be
obviated
envisaged;
and,
others that could be
ac-
Ad-
cordingly,
could
treated under
the Narcotic
anticipate
we do not
their dis-
Act,
dict Rehabilitation
position.
which he
previously
excluded as a twice
convicted
Herold,
107, 111,
Baxstrom v.
offender.”
(1966);
86 S.Ct.
controls that could otherwise allow the
meaningful
addict to exercise a
choice
Finally,
I do not believe that we
to refrain from the
fairly
use
pass
of narcotics.18
over
issue
reliance
instructions,
Durham-McDonald
the failure of
counsel
emphasis
illness,
their
mental
request specific
instructions below.21
States,
U.S.App.
13.
tal,
“physical
Durham v.
United
said that
need for
(1954).
overwhelming,”
D.C.
read as
his
sues
should,
suggests, be
amicus
attack
as
First.
the
am
to discern
unable
if he
a
Or
motion to dismiss.”29
grounds upon
majority re
the
af-
wishes to “raise these matters as
challenge
appellant’s
fuses
decide
trial,”
“pre-
at
firmative defenses
sufficiency
of the indictment. The
going
sumably must bear the burden of
expressly provide
Federal
that
Rules
places him
forward with evidence which
“the
in
failure
indictment or
category
posses-
in the
an addict in
charge
formation to
an
shall
offense
solely
own
sion of
for his
be noticed
at
time dur
says
event,
ma-
use.”30 In
either
pendency
proceeding.”
of the
jority,
upon which decision
the record
12(b)
(2). Specifically,
Fed.R.Crim.P.
“fact-finding
tois
be based must include
may
such a claim
be raised for the first
sufficiently
point
close
of time
appeal,
States,
time on
v.
Walker United
question
its in-
events in
to assure
as
(5th
Cir.),
denied,
F.2d 22
cert.
tegrity.”
U.S.
S.Ct.
15 L.Ed.
majority’s
(1965);
may
I find
com-
strictures
it
raised
for the first
pletely
appel-
rehearing
petition
unwarranted.
Insofar as
time on
appellate court,
sufficiency
States,
of the
lant’s attack is to
Hotch United
v.
tried,
(9th
may
it
indictment under which he was
1953);
III.
en banc:
one
this case
No
involved
BAZELON,
Judge, and
Before
Chief
expressed
narcotics
with the
satisfaction
ROBINSON,
and
Circuit
McGOWAN
appel-
persons
applied
as
such as
laws
Judges.
below,
prosecut-
In
lant.
ing
the court
BAZELON,
Judge:
Chief
jury
attorney
told
law,
think
I don’t
I don’t like that
Appellant,
addict,
a narcotic
was con-
governs
there should be a law
victed of narcotics offenses1 and sen-
and, particularly,
ad-
narcotic
statutory
tenced to the
minimum ten
* * *
like a law
I don’t
dicts.
years’ imprisonment for narcotics recidi-
governs
and
narcotic addicts
vists.2 The evidence
at the
showed that
says
addict,
found
narcotic
a
time of his arrest he
inwas
charged and
possession,
can be
capsules containing
thirteen
heroin—
brought
jury.
before a
half the
daily
amount of his habitual
3
agree
prose-
I
insanity
with the
use. He
Tr. 337-338.
invoked the
defense
so,
cutor;
apparently,
eighth
ma-
and the
prohibition
does
amendment’s
government,
against
jority. But the
which ad-
cruel
punishment.
and unusual
opiates
first
dicted
trial, Appellant
At
called two staff
place,
provided
also
him with counsel members
Hospital
from Saint Elizabeths
trial
abilities
whose admitted
patent
as defense
Baughman,
witnesses. Dr.
permit
field
them
law
psychiatrist,
Appellant
testified that
appellant’s statutory
con-
raise
personality”
“schizoid
and a narcotic
stitutional
the manner
ma-
claim in
addict, that his
prod-
addiction was the
Accordingly,
jority
proper.
deems
the uct of his
illness,
mental
and that his
majority
give appellant the
refuses to
possession of narcotics for his
use
own
admittedly
benefit of
meritorious
his
was a direct result of his addiction. Dr.
already
Stammeyer,
rea-
claims.
have
indicated the
diag-
psychologist,
clinical
Appellant
prop- nosed
“paranoid personal-
sons that I
believe these claims are
ity” on the
erly
not,
basis of extensive tests ad-
before us. But
if I did
even
ministered under his direction.
indigent
I would not force
court-
suffer for
mistakes
rebuttal,
the Government called Dr.
appointed
ap-
I would
Platkin,
counsel.
reverse
physician
charge
pellant’s
Maximum Security
convictions.
Division at Saint
accompanying
prevailing
text
notes 21-26
See
standards
in this Circuit.
See
supra.
course,
States,
U.S.App.D.C.
Of
the constitutional
claim
Scott v. United
138
it,
may,
(decided April 15,
since this court refuses to rule on
punishment
as bizarre
as well
punishment
cases,
for-
punish-
not find this mode
and,
punishment
in some
bidden
“inhuman
un-
as
and barbarous”
itself.
ment
eighth
Instead,
amendment.24
der the
sup-
contention finds substantial
This
triviality
emphasized
relative
There,
port
United
v.
States.20
Weems
punished, especially
offense
in relation
Supreme
struck down a sen-
punished
to other crimes which were
less
years imprisonment
of 15
“hard
tence
severely,
law,
combed the
both
case
painful
imposed
Philip-
labor”
federal,
opinions
state and
pine
falsifying
law for the offense of
eighth amendment
public
minor
document
conceal a
mis-
public
directed,
only against
punish-
use
funds.21 That sentence for
in its
torture,
offense was deemed “cruel
ments which inflict
“but
imprisonment”
against
which,
well
“un-
punishments
excess of
as
all
character,”
length
usual
severity,
its
was con-
their
excessive
* *
greatly
demned
disproportioned
“both
account of
to the offenses
[its]
degree
charged.”
and kind.”
Though
The decision in Weems was undoubted-
the Court has not had occasion
ly
peculiar
it,
influenced
Weems “has
generally
follow
incidents of
been
challenged imprisonment:
accepted
“a chain
both federal and state courts
establishing
offender,
ankle and wrist of the
the rule that excessive
painful
labor,
hard and
punishment
ness as well as
assistance
mode
relative,
from
friend or
unconstitutionally
no marital au-
Pow-
cruel.”
have, however,
Some other courts
other
re
narcotic offenses.
In these circum-
stances, Judge Friendly
fused to find narcotic sentences unconsti
found the sen-
tutionally
eighth
very
excessive under
tence and statute
different
g.,
amendment.
States,
IS.
v.
those
Stewart
United
condemned in Weems v. United
(8 Cir.),
States,
undifferentiated
presump-
possession
here,
Thus,
use.
explained possession.
If,
possessor has
some
only possession,
tion that a
violated
the Gov-
evidence shows
part
charge
prohibited
each
is not unreason-
statute
all the
ernment
possession
(as
only
But
count)
able.44
an addict’s
acts
it did
the first
second);
not,
(as
small
does
with-
amount of narcotics
in the
selected acts
it did
more, reasonably support
specific
out
charge,
presump-
but whatever
possession proves
presumption
possessed
pur-
tion from
“a viola-
he
it for
* * *
tion of
section” —not
[the]
poses
sale,
actually
much
he
less that
prohibited
any specific
commission of
sold
are
it.45 We
satisfied
Con-
act.43
gress
pre-
intended no such ill-founded
sumption,
did,
but even if
we could
course, anyone
possess
Of
who
hardly dispose
eighth
of an
amendment
unstamped
es
narcotics has
cer
almost
question by concluding that
the defend-
bought
tainly
them,
either
or received
punishment
ant’s
was not excessive in re-
values his freedom he
un
lation
doubtedly
concealing
to a crime which
them;
there was no
also
these
persuasive
necessary
offenses are the
evidence he
concomitants
had committed.
See,
g.,
presumed
purchase
43.
e.
Bates v.
session and
95
United
under the
U.S.App.D.C. 57,
30,
(26
4704(a),
219 F.2d
cert.
Harrison
supra
de
Act.
U.S.C. §
nied,
891,
40.)
961,
dealing
349 U.S.
75 S.Ct.
99 L.Ed.
note
“In
with a
poison
(1955) ;
commonly
White,
except upon
1283
United States v.
used
(7
1956).
prescription easily proved
47g selling evidence, slavery.53 man into It is Govern- a severe In lieu of such sought length both in its and in its callous on occasions dis ment has several regard brings prosecu- it never a for need for assure us that obvious statutory presumption which, successful, if tion based on the would legiti treatment54 — substantially possible unless the is serve all the defendant guilty substantially purposes punishing a more mate fact him. crime, serious task such as sale. Our But there are other indices of the se- safely would be much easier we could verity of the sentence besides the abso- accept such But assurances. we cannot length lute prison of the term. Ten ignore danger that, by de- error or years is the minimum sentence author- sign, possessors punished mere will be Congress ized “subsequent” for a system responsi- as sellers. In our offender,55 narcotic Congress and has bility assaying guilt the evidence rarely seen fit to fix minimum sentences. reposed jury, is in court and With exceptions grave of such prosecutor. Especially pen- where the crimes degree as first murder56 and alty harsh, policy stake is so the same treason,57 the standard federal sentenc- requires strict construction of ing scheme sets statutory a maximum prevents criminal offenses us from re- egregious for the most offender and as- lying prosecutorial good faith or on signs judge to the trial the task of de- evidence which has not been submitted termining what lesser sanction will serve scrutiny adversary proc- society interests of unjustly without ess.46 penalizing the Thus, defendant. the im- years prison position Ten is twice at least statutory minimum, deny- long as the maximum federal sentence any spe- the defendant the benefit major extortion,47 equity mitigating for such felonies as cial or circumstances blackmail,48 perjury,49 lighter assault a which would otherwise result dangerous weapon beating,50 sentence, arson is itself a mark of unusual se- verity. endangering (not life),51 that, And human we note threat at least on the ening us, President,52 record before the life of the Hospital Kentucky, case, Lexington, 46. Service In the instant we are referred to Appellant’s but he the search has instead been confined in the warrant issued penal apartment, in- facilities of the which the affiant cited District Colum- bia. formation from “reliable source” Appellant preparing retailing subsequent 55. “For second offense apartment. heroin from his The warrant (as 7237(c) determined under section specified syringes, tourniquets, “heroin, 1954), the Internal Revenue Code of cookers, paraphernalia used in the imprisoned offender shall be not less than preparation disposition of heroin. forty years and, ten or more than in ad- ” * ** fact, the officers found on- dition, may be fined not more than ly very quantity small of heroin. We $20,000.” supra § U.S.C. note anonymous hearsay, dare not treat such 41. proof by cross-examination, untested 56. 18 § U.S.C. 1111. The minimum fed- asserted. the matter penalty degree eral first murder 47. § 18 U.S.O. 872. imprisonment. life There minimum any other homicide. 48. 18 § U.S.O. 873. 49. § 18 U.S.C. 1621. § 57. 18 U.S.C. 2381. The minimum is five years prison. See also the anomalous 113(c) (d). 50. 18 But see § U.S.O. twenty-five mandatory year sentence for § 111. U.S.O. attempting dangerous to rob with 51. §81. 18 U.S.C. having custody weapon person mail, money, property or other 52. 18 § U.S.O. 871. Piracy 2114. § United States. U.S.C. 53. 18 U.S.O. punished a life sentence. 18 U.S.C. Appellant § 54. The court recommended that Public committed to the U. S. Health *30 of- mitigat- of different relative seriousness equities special and numerous any judgment think fenses. But we in his favor. circumstances unstamped possession mere narcotics general federal The Nor is this all. personal compelling to meet need is a a supend all or permits the court rule many more heinous than mur- offense imposed any of- part of a sentence ders, arsons, rapes, kidnappings or would life im- punishable death or fense arbitrary capricious. be plausible justification Moreover,
prisonment.58
most criminals
punishing
serving
eligible
parole
one-
after
though
severely
that,
more
Congress
But
has
third
their term.59
less
serious,
is harder to deter. But
special exception for narcotic of-
made a
fenders, denying
rationale,
that
eration,
while entitled to consid-
probation
them either
support
penalty
cannot
“out
parole.60
or
proportion
of all
to the offense”69 or
sentencing
of this
scheme
The result
culpability
Ap-
of the offender.
murderer,61 kidnapp
convicted
pellant’s ten-year sentence,
pro-
without
64
arsonist,63
traitor,65
er,62
rapist,
robb
treatment,
vision for
probation,
pa-
67
er,66
lighter
may
or saboteur
receive
role, “excite wonder in minds
[s]
accus-
mandatorily imposed
sentence than is
on tomed to a
adaption
more considerate
possesses
an addict who
narcotics more
punishment
degree
of crime.”
dangerous
than once. And
these
fel
all
We are
constrained
hold that
this
on
eligible
may
ons
hapless
for release before the
imposed
record the sentence
cruel
is a
they
addict if
are sentenced to
punishment
unusual
of the
violation
any
thirty years.
term less than
eighth amendment.
disposition
recognize,
course,
We
on
case
probation
holding,
parole
presents
leg
however,
something
are matters of
grace
Congress
may
islative
dilemma. We are reluctant to intrude
in its
deny.68
congressional prerogative by
discretion
dispute
We do not
Congress’
dismantling
right
sentencing
prison
set minimum
any
terms.
statutes brick
brick
reasonably
And we defer
until we reach
constitutionally
congressional
acceptable
And
judgment
defensible
result.71
as to
supra
174,
41, pro
58.
71. 21
§
U.S.C.
note
§
U.S.C.
3651.
ten-year
vides for a
minimum term and
59. 18 U.S.C. § 4202.
incorporates
by reference
the denial of
Supra
60.
probation
parole
7237(d)
note 10.
of I.R.O. §
severability
contains
56, supra.
61. See note
Accordingly,
clause.
we
we
doubt
62. 18
§
U.S.C.
1201.
separate
Appellant’s
can
the elements
Appellant’s
sentence
2.
concur
on count
63. 18
§
U.S.C.
81. There is no minimum
ten-year
rent
sentence
count 1 was
sentence for arson even if life has been
imposed
(a)
(d)
subsections
under
placed
jeopardy,
supra.
51,
note
of.
of the same
There is a
§
I.R.C.
7237.
64. 18
§
U.S.C.
2031.
general
severability
applicable
clause
Code.
I.R.C.
entire Internal Revenue
Supra
65.
note 57.
7852(a)
(1954),
7852(a).
§
§
26 U.S.C.
seq.
66. 18
§
U.S.C.
2111 et
But see note
7237,
But
well be that
like
§
57, supra.
174, supra,
in
U.S.C.
establishes
§
tegrated sentencing
which we are
seq.
scheme
67. 18 U.S.C.
2152 et
liberty
tamper
not at
with.
Unit
Gf.
g.,
States;
68. E.
Stewart v. United
Vera
39,
Marchetti,
58-
ed States v.
States;
supra
v. United
both
note 19.
60,
(1968) ;
L.Ed.2d 906
88 S.Ct.
supra
California,
supra
Robinson v.
note
Weems
note
381-382,
(opin-
If
U.S. at
one rule for
finds a
the state
when,
thought
who,
er
I
so
of the
“an
for the national.
laws because
law,
panel
the time the 1966
as a
Castle
Act became
member
leaving
joined
prior
States,2
cor
not have two
convictions is
seemingly
disqualified
disposition
under the
rection to the Court which
Meanwhile,
enlightened provisions
new and
had created
the imbalance.
Act,”
years later,
presented
Narcotic
four
with
Addict Rehabilitation
we are
who,
appellant,
involved while “one
like
another record not unlike
suffered
I think
come
narcotics convictions on two
Castle.
the time has
speak
re-
make the
occasions before
denied the
Constitution
possibilities
ap-
habilitative
same
in the District of Columbia
of the new
voice
proach.”
as in California.
majority correctly
the ef
states
us-
There is a vast difference between
fect of the 1966 Act:
it benefits some
ing drugs
trafficking
in them.
while it
addicts
treatment under
Congress
denies
has,
since
is difference
*32
provisions
its
But
other addicts.
Robinson, explicitly recognized.3 That
necessarily
equal pro
is not
recognition
denial of
gone
to re-
has not
so far as
tection
of
laws under the Fifth and
sult in
re-
a rational reexamination and
Amendments,
pro
equal
Fourteenth
vision of the federal
statutes
always
identity
require
tection does not
themselves, but,
event,
pending
equal
requirement
of treatment. The
long
Robinson,
believe
so
as
protection
legisla
always permitted
stands, compels
either
invalidation
classification,
long
tive
the classi
so
applied
those
like
statutes as
to a record
reasonable,
fication is
“on
rests
real
us,
interpretation
the one before
or
feigned
not
differences”,
the distinction
trafficking
them as limited to
of-
—an
purpose
has “some
relevance
alleged
proved
fense neither
nor
here.
made”,
which the classification is
ROBB,
Judge (dissenting):
provided by
Circuit
the different
treatments
legislative enactment are not
dis
so
opinion
majority
holds unconstitu-
parate,
“relative to the difference
part
tional
the Narcotic Addict
classification,
wholly arbitrary”.
toas
be
Rehabilitation Act of 1966 which ex-
City
Louis,
Walters v.
of St.
eligible
cludes
those
for treatment
231, 237,
505, 509,
98 L.
S.Ct.
“an offender who has
been convicted
(1954). Legislative enactments,
Ed. 660
felony
prior occasions”,
on two or more
Supreme
said,
Court has
offend
provision
applied
when one
safeguard
equal pro
constitutional
prior felony
whose
convictions
nar-
“only
tection
if the classification rests
cotic law violations occurred
before
grounds
opinion
wholly
effective date
Act. The
irrelevant” to aehieve-
U.S.App.D.C.
398,
unlawfully
“eharged
importing,
2. 120
F.2d 492
sell-
(1964),
denied,
953,
ing,
conspiring
import
cert.
381 U.S.
nar-
or sell”
1811,
rehearing
726,
drugs.
2901(g)
(2).
14 L.Ed.2d
S.Ct.
de
cotic
§
28 U.S.C.
nied,
874,
13,
customarily
are,
course,
382 U.S.
86 S.Ct.
15 L.Ed.
These
the acts
(1965).
trafficking.
2d 16
associated with
The defini-
who, although convicted,
tion of
those
op-
eligible
3. The
Act
Narcotic Addict Rehabilitation
are
for civil commitment
1966,
posed
sentencing
80 Stat. 1438. The substan-
to criminal
contains the
provisions
pre-
although mitigated
tive
of this
statute
same
exclusion
Congressional
proviso
eligibility
ceded
a declaration
this instance
policy to the effect
that addicts convict-
continues
if “the court determines
charged
primary purpose
ed of or
with narcotics offenses
such sale was for the
civilly
enabling
should be
committed for
rehabil-
obtain
nar-
the offender
criminally
per-
drug
requires
itative
treatment
rather
than
which he
cotic
punished.
eligi-
In the definition of those
because of his addiction to such
sonal use
civilly
(2).
drug.”
4251(f)
ble
be
committed rather
than
U.S.C.
prosecuted, an exclusion is made of those
objectives.
government’s
ment
Maryland,
v.
366 U.S.
McGowan
KLINE, Appellant,
Sarah B.
1101, 1105,
6 L.Ed.2d
(1961). Legislatures
presumed to
“are
1500 MASSACHUSETTS AVENUE
constitutional
within their
have acted
APARTMENT CORPORATION
that,
power despite
practice,
the fact
et al.
inequality”
their
result
some
laws
No. 23401.
statutory
will
“a
discrimination
Appeals,
United States Court of
reasonably
of facts
aside if
state
set
District of Columbia Circuit.
justify it”. 366 U.S.
be conceived
425-426,
10, 1970.
also
Argued April
exclusion a reform Act Rehabilitation Narcotic Addict “guided by
we should the familiar
principles invalid that a ‘statute might because
under the Constitution gone did,’
have farther than it Roschen *33 Ward, ],
v. 279 U.S. [
legislature need not ‘strike at all evils time,’
at the same v. Dental Semler [ ] Examiners, 610 [ '] time, may step
that ‘reform take at a one
addressing phase itself
problem which most to the seems acute
legislative Op mind,’ v. Lee Williamson Co., Katzen
tical 348 U.S. 489 [ ].” Morgan, 86 S.
bach 1717, 1727,
Ct.
eration nothing arbitrary I see unreasonable or congressional judgment
in a that an ad-
dict who is hardened offender twice felony,
previously whether convicted of a likely
before or after not a
prospect Sympathy rehabilitation. suggest for the addict to some treatment, ought eligible sympathy justify a does not statute, re-writing striking down limitations, thereby
one of over- its riding judgment Congress. a rational MacKinnon, Judge, dissent- Circuit grounds It is not for a court on such opinion. ed and filed substitute its views those of Congress.
I dissent.
the sentence.
would affirm both the conviction and
The
notes
narcotics
Second.
raise,
that
there
a
as affirma-
was at
least
reasonable
fendants who wish
argument
trial,
doubt
that
his
the narcotics
found in
tive defenses at
the
possession
nontrafficking
addicts
were other
than for
their
own
status
his
solely
Accordingly,
their
use.
it refuses
to decide
defense,
raised,
whether
from the reach
such a
use removes them
would
own
appellant
“presumably
I
the
must bear
valid.
believe that
statute
going
coming
met the
with evi-
burden of
forward
the burden of
forward
with
places
cate-
evidence to
an
de-
dence
establish
affirmative
which
[them]
[this]
fense,
fails, however,
gory.”
completely
if such a defense is valid
he
way appellant
should
explain
failed
the
it.
in what
receive
benefit of
Testimony at trial
to meet this burden.
respect
constitu-
Third. With
psychiatrists
testi-
who
both of
issue,
tional
we do not sit
as triers
that,
offense,
fied
the time of
was
Appellant
fact.
entitled
was
to have
appellant
was addicted to narcotics
jury
case submitted
in-
capsules
daily
roughly 25
habit of
a
presenting
a
structions
constitutional
Platkin,
heroin. Dr.
who testified
construction
under which
statutes
government,
con-
seemed to be as
present
tried.36 The
was
case
not
Baughman,
Dr.
vinced of this as was
Texas,37
like Powell v.
tried
was
testified for the defense.
who
sitting
jury
a court
without
receipt
narcotics with
and concealment
where,
consequence,
law
issues
charged
were
of which
charge
preserved by
were
not
capsules
heroin,
slightly
half
over
jury;38
it
is not
like United Public
govern-
daily requirements.
Mitchell,39
anticipatory
Workers v.
slightest
ment’s
hint
case raised not the
statute,
judicial
on
attack
where
dis-
appellant possessed
capsules
these
may fairly impose
cretion
a stricter bur-
them,
in order
indeed
sell
coming
den of
forth with
evidence
closing argument
prosecutor’s
admitted
present
claim;
a constitutional
it
nor is
Conceivably,
a rec-
as much.35
such
York,40
like Morales v. New
where the
might
jury
ord we
conclude that
presented
constitutional
claim
involved
appellant,
compelled
find for
normally
jury.41
issues not
tried to
believe,
permissibly
be-
and that
could
Appellant’s
present his
trial counsel did
yond
doubt,
a reasonable
court,
constitutional
claim to the trial
majority
was not addicted.
But
moving
specifically
all
the close of
opinion
does not rest
con-
judgment
acquittal
evidence
Rather,
appears
clusion.
to hold
ground
on the
that Robinson v. Califor-
appellant had
met
his burden
precluded
nia42
conviction.
his client’s
coming
evidence to show
forward with
majority’s
tlie
conclusion
factual
Ante,
34.
at 454.
inadequate
because
record
this case
supra.
24,
35.
also
See
note
government's
ap-
to contest
failure
See,
g.,
36.
e. Watts v. United
pellant’s addiction, affirmance of the con-
705,
1399,
U.S.
S.Ct.
L.Ed.2d 664
hardly
proper remedy.
viction is
;
(1969)
Yates v. United
354 U.S.
75,
556,
39.
91 L.Ed.
330 U.S.
67 S.Ct.
77 S.Ct.
1 L.Ed.2d
(1947).
(1957).
40. 396
90 S.Ct.
L.Ed.2d
37. 392 U.S.
88 S.Ct.
20 L.Ed.
(1969).
(1968).
2d 1254
any event,
41.
in Morales
Powell,
course,
purported
did include
issue,
not affirm the conviction there at
“findings
court;
of fact”
the trial
but
findings.
further
remanded for
majority opinion noted,
they
as the
were
hardly supported by
evidence.
See
8 L.Ed.2d
521-522,