Louis R. Hutcherson v. United States

just disposition, I think a 28 U.S.C. 2106, requires that case be remand-

ed to the District Court with directions hearing

to conduct a on whether the duty, Government met its as set out opinion, protect rights. appellant’s HUTCHERSON, Appellant,

Louis R. America,

UNITED STATES Appellee.

No. 18375. Appeals

United States Court of

District of Columbia Circuit.

Argued Sept.

Decided March Rehearing

Petition for en Banc 6,May Denied

Bazelon, Judge, Chief dissented in

part. merely by to have a Aloysius (appointed lated misdemeanor B. Mr. McCabe searching person nar Washington, C., appel- pretext for court), for his D. cotics; therefore the search was lant. illegal. Gilbert, S. Asst. U. Mr. E. Gerald hearing pre-trial on the motion Atty., At a Ache- whom Messrs. David C. Q. arresting suppress, and the officer son, Atty., to the Frank Nebeker U. and S. testified, Lowther, appellant Chief after which Joseph U. S. A. Asst. and Judge motion. Attys., brief, appellee. denied the McGuire were on the December, came on for trial in case Judge, Before Chief Bazelon, Wilbur suppress re- was the motion to Judge, and Circuit Senior Miller, K. again Thomas Di- denied. newed and Judge. Burger, Circuit arresting officer, done, testified sub- pre-trial stantially hear- as did at the he MILLER, Circuit K. Senior WILBUR suppress a Gov- the motion to and on

Judge. identified the chemist contents ernment into Louis was taken R. Hutcherson hydrochloride; capsules as heroin of the custody 12, 1963, September for a misde testify appellant intro- did and presence of the meanor in the committed no duced witnesses. immediately arresting was officer.1 It guilty jury found him had After person a discovered that had indictment, both counts under containing capsules heroin vial he had twice before showed Government original hydrochloride not in or from the violations. for narcotics sentenced been stamped package, whereupon officer Following judge imposed this, the trial charge. An him on a arrested narcotics the minimum sentence count as to each indictment returned October statute, years but directed fixed of ten violating sec two accused Hutcherson concurrently. Hutcherson run *****8filed He tions the narcotics statutes.2 appeals. suppress a motion the evidence to arresting capsules on as the 28 officer point the trial court His first theory suppress was narcotics officer denying his motion in erred looking drugs really concerning and contraband the evidence of Didone that, theory for a minor unre made sham arrest capsules His heroin. Drinking public alley. concealment, transportation, 25- Section or sale part being drug any is in as fol- im- after narcotic such knowing brought in, lows: ported the same or person brought “(a) imported No shall into or to have been any law, contrary of Columbia drink age alcoholic bever or States the United street, park, any alley, parking * * *." any conspires or of such acts to commit of the the laws in violation of imprisoned less be shall 4704(a), 2. 26 which is follows: TT.S.C. twenty years more than than and, or five any person be “It shall unlawful addition, may fined not more be purchase, sell, dispense, or distribute $20,000. or For a subse- second than drugs original except narcotic (as quent sec- determined offense package original stamped or from the 7237(e) Internal Revenue of the tion package; stamped absence 1954), im- shall be the offender Code taxpaid stamps appropriate from nar- prisoned or more than not less than ten prima eotic shall facie evidence addition, may forty and, years of a violation this subsection $20,000. fined not more person possession in whose the same on trial for violation “Whenever found.” is shown to the defendant this section and 21 which is as follows: possession have or to have had fraudulently knowingly or “Whoever drug, possession shall be narcotic imports brings drug any narcotic in- to authorize deemed sufficient evidence territory any to the United States or explains the defendant conviction unless jurisdiction, con- its control or trary law, receives, conceals, buys, satisfaction sells, jury.” or in manner facilitates ****** a member of nar- was as the officer proceeded patroling squad “As we area distance into cotics alley frequented V traffickers in street we came to an that ran known to be illegal drugs, purpose perpendicular to the that his fourteen hun- it follows dred alley of V search narcotics block Street charge the defendant and that the arrest on misdemeanor observed ’ subsequent merely pretext for the other was individual. argues search. He that narcotics officers “As Detective Seibert turned into ordinarily people do not ing for drink- arrest alley I observed defendant public. in bringing up a small bottle to his it, mouth and drink from and we Although arresting officer proceeded alley down the as he was squad, that was attached to the narcotics drinking. assignment did him nar not restrict “As we came abreast de- and his cotics work did not detract from stopped fendant Detective Seibert general authority as a member the car and at that time the defend- Department. Metropolitan He Police taking ant was the bottle down and statutory authority had to arrest with topping it. person committing any an out warrant n offensein his “I presence was or his in the rider’s within seat. We n view.3 stopped by the defendant who was standing on the west side testimony The officer’s uncontradicted alley by ridge. He little was about drinking showed he observed Hutcherson two feet me. I could see the just alley in from a bottle before wine bottle said Thunderbird Wine and custody. he was The taken into subse- he smelled of wine. quent search was usual Police, “I my said and search, shotved weapon routine and in this case badge. At per- that time the other by the appellant officer fortified fact standing son was few feet from weapon admitted he had a I him. asked the defendant person. appears if he his This Didone’s knew it was a violation of law (cid:127)testimony. public. yes. drink in He said I “A. We were—Detective Seibert said, ‘You know it is a violation of driving and I—he was and were we public law drink in ?’ He said going north, in the detective cruiser yes. vicinity of Fourteenth and V got cruiser, “I then left the out of Streets, Northwest, Washington, cruiser, placed and the defendant D. C. I defendant observed the and under arrest and advised him he was standing another man on the corner drinking public. arrest for of Fourteenth and V Streets. That would be the southwest corner. “Afterwards I asked the defend- Boy Big There is a Restaurant there. any ant if he weapon had a or knife recognize I didn’t them as facing to who on him. He was me. As he they just were. I yes, saw them. We body slightly said he turned his proceeded they and right north turned in- toward the and with his left to V hand, slipped Street. it under his shirt. His 4-140, 3. Section peace is as directly breach of the or offense prohibited by follows: Congress, Act of or police “The several members law ordinance force power authority District, force shall have and but such member of the immediately arrest, warrant, immediately, force shall and without custody any person delay, upon arrest, and to take into convey per- such commit, who shall or threaten at- proper son such offender before the tempt commit, presence court, that he be dealt with ac- member, view, any cording or within his to law.” weapon pants he which he seemed to about and of his outside shirt was clothing. under his his to reach for slipped underneath his hand left grabbed his did I As he shirt. Hutcherson’s next contention get said, ‘I’ll it.’ I forearm process he denied because due and lift- his forearm then withdrew under fed was indicted convicted up. ed his shirt eral statutes instead of under the D.C. up I his shirt ob- lifted “When I point de Code.4 His is that the offenses undershorts had elastic his served statutes nounced the federal and local up pulled about two were and that he was entitled identical pants inches from or three prosecuted the latter because As I a knife in there. felt violating penalty less severe it is felt, lump removed it. I felt a and I provided the federal statute. glass con- clear bottle It was a small theory A defendant untenable. powder.” taining quantity of a white right has no constitutional to elect which applicable the shall be two statutes is disclosed The situation thus prosecution. basis of his indictment and quite that in v. United unlike White by United That is to be made choice States, U.S.App.D.C. F.2d Attorney. aptly This stated States was by appellant, (1959), cited where by the in Ader Fifth Circuit Deutsch the search of a court that divided held hold, Warden, (1935): illegal vagrancy was for be one arrested no officer no warrant and cause the had attorney of “The United States making probable for the arrest. cause a the district a where violation cause, probable is no Here there doubt charged statute occurs is federal in the as the was committed offense prosecution duty of with the officer’s view. complete over vested with control proceedings, in exercise of Tagla The refers show sound discretion. If the facts (9th States, F.2d 262 United vore v. statutes, a violation of two more 1961), in which it was held that the may he will elect which violated Fourth Amendment was where pro- prosecute, in the absence of an for a violation was arrest minor traffic ” hibitory statute. pretext for as a for a search mari used juana cigarettes; he likens this case then Appellant’s for re reason final by “Here, saying, too, to that one ten-year in this versal is that a sentence was obtained as a Government’s evidence pun unusual case constitutes cruel and minor and unre result of an arrest for a Eighth Amendment. ishment under an lated misdemeanor used as obvious argument obviously unsound This so pretext suspected to search for nar unnecessary. that discussion is detailed case, Taglavore plainly In cotics.” in Blockbur As the Court said deliberately appeared the officers States, ger planned pretext the arrest (1932) : 76 L.Ed. searching marijuana be “ * * * meaning posses plain had The lieved defendant Here, provision there no such sion. factual Narcotics Act] [the unplanned subject situation. arrest that each offense fully justified, and, penalty prescribed; search was war if and the only remedy by harsh, af- arrest but also must ranted too by Congress, Hutcherson’s that he had admission forded act 33-402, drug, except this Section eotic authorized part pertinent chapter.” as follows: “ (a) per- provision It shall be unlawful a second One violates this who manufacture, imprison- possess, have son to un- time receive sentence control, sell, prescribe, years. der his admin- ment for ten ister, dispense, compound any nar- legislation general-

judicial guise pecially light sweeping under the ” * * * ities of the dissent. construction. longstand connection, I In it is noted that Hutch- outset at the note ing punishment lawfully practice could which one erson’s have of this court holdings imprisonment twenty years, sitting prior been had division adheres judge precludes the trial made the two our enter sentences of other divisions arguments taining consecutive instead concurrent. advanced dissent, nothing making say hold Affirmed. holding in Castle to those ends. Our Nov. No. Judge (concur- BURGER, Circuit -, U.S.App.D.C. F.2d ring) : necessity 492, apart dictum, of from the rejected cruel-and-unusual-punish agree Judge entirely Miller’s by appellant ment contention now made It treatment of sham-arrest issue. Lloyd and in v. United absurdity to let would be the ultimate July 3, 1964, U.S.App.D.C. -, complain defendant be heard 242, petition rehearing F.2d en banc specially officer trained narcotics rejected denied, 6, 1964, we both Nov. law enforcement make arrests can equal-protection contention judges violations, for narcotics or for Lloyd de case was contention. Since question otherwise to motives officer’s opinion Castle case cided and the See, g., for his official e. Mellon actions. summarily cruel-and- dealt but with the 168, Brewer, App.D.C. 18 F.2d unusual-punishment claim, an elaboration (1927). police A.L.R. When a may be useful. officer conduct observes overt criminal arrest, and makes the that the an fact (1) Appellant standing to raise has no suspects officer mani- other violations not equal-protection question the here. The illegal possession time, fest at the such as years of minimum sentence ten the narcotics, weapons goods, of stolen penalty repeat-offender under the the totally police officer irrelevant. question. the federal statutes Under guilty would himself have of mis- been a applicable provisions of the D.C.Code, appel- demeanor had he failed to arrest penalty the maximum for such offenders lant in these circumstances. D.C.Code years plus is ten It is a fine of $5000. (1961).1 suggest Ann. 4-143 To that apparent appellant that thus law could ques- an accused is not foreclosed from fully pen have an heavier received even tioning personal an officer’s motives alty under than he received the making arrest, valid, is sim- otherwise statutes, cannot the federal we ply say pro- first the amendment assume he less would have received right every appellant tects the of to make ten-year fine, sentence, the same without any contention, absurd or however bi- had he been under the District tried alarming frequency zarre. The with circumstances, appellant these In Code. judges accept such contentions aggrieved” by “person is not a United the encourage tends to this exercise. Other Attorney’s States of choice statute. See presented issues in this be case seem to States, 131, 133, Berra v. United 351 U.S. treatment, warrant somewhat fuller es- (1956) 76 S.Ct. 100 L.Ed. 1013 * Judge quotation * 1. As the Miller’s weapons the accused arresting plain, Record makes the offic Preston United U.S. purpose er’s search was made for the 881, 883, 84 S.Ct. 11 L.Ed.2d 777 disarming appellant knife (1964). he had purpose Given valid the carrying. Supreme weapon, admitted As the search for a other aims the say, only recently may Oourt “Unquestionably, had occasion to officer have had That are irrelevant. person law when the valid search disclosed fully arrested, right, appellant’s have the contraband mis warrant, without a search to make a fortune. contemporaneous person search of the greater appellant’s despite (Court here found sentence the fact that federal and ap- municipal possible question may under statute statutes than maximum be charged “functionally pellant equivalent,” have viewed asserted should been as reaching they require proof.4 Ap- merits offense as lesser before identical pellant’s contention). attempt distinguish cases Aderhold, such as Deutsch v. Assuming arguendo (2) (5th 1935), upholding as standing equal-protection had to raise the prosecutor’s discretion to be- choose merit, issue, position find requiring proof tween statutes of differ- equal-protec even if we assume that ent facts are thus to no avail. guarantee may imported tion into the process clause in fifth-amendment due United Moreover, clear that a it case, swpra, Berra this situation. In the pro- Attorney has the discretion States presented Supreme situation against un- particular defendant ceed very Court was to the instant similar legislation him or to allow der the federal petitioner case. There had been having con- state dealt tried and sentenced under U.S.C. § Indeed, jurisdiction. defend- current (b), Supreme which the Court assumed prosecuted constitutionally ant felony punished made as the same acts acts both same 3616(a).2 a misdemeanor 26 U.S.C. § by any those laws state whose States and petitioner At trial had moved unsuccess Abbate acts offend. fully jury instructed on to have the 3 L.Ed.2d 79 S.Ct. 3616(a) offense.” had as a “lesser He Il- People Bartkus v. State motions valid made no addressed L.Ed. linois, 79 S.Ct. 359 U.S. ity indictment, conviction or sen decide need not 2d 684 We 145(b). posture, In this tence sovereignty Congress acted for a whether propriety Court found separate it national serves in charge the denial the lesser-offense legislation passed Uniform when only question it, to be the before 351 U.S. of Colum- Act for District Narcotics rejecting thus bia; whether not decide we need dissenting view of Black that the Justice for the felony and misde co-existence functionally both Columbia, viewed meanor statutes a discretion in the vested validly entity, could a state and a federal prosecutor “wholly incompatible our prosecute the a both defendant system justice,” of id. at at S.Ct. statutes. the federal D.C.Code and under 690, and that the should notice that Court say is my there to In it is sufficient view 52(b) “plain fact Rule of as error” under allow- no difference between substantial Criminal the Federal Rules of Procedure. for the the United States Id. at 76 S.Ct. 685. proceed either Columbia to District of legis- municipal federal or the Thus, precludes the Berra our case allowing finding warranting plain his error reversal lation in discretion and his purposes of is 2. The force Berra for our of Jus- doubt vehement dissent that question not of course Court’s to the diminished tice Black called the subsequent determination, Accord, Achilli see States attention. Court’s (7th Achilli, 77 S.Ct. U.S. F.2d (1957), 1956). sec- L.Ed.2d 918 that two overlap. tions did not fact pun- (1961) 33-402 Ann. suggested grant narcotics; possession If it be of cer- ishes of 4704(a), on tiorari on the charge precluded of the lesser-offense refusal 174 and 26 U.S.C. relating punish hand, from consid- the Court other certain acts ering argued by handling plain-error mu- claim to the narcotics. Black, nicipal function- Justice the answer is to found federal statutes approach reaching ally however, equivalent latter the Court’s usual since proof it If of unex- whatever wishes to reach. er- authorize conviction plained possession. thought exist, ror there can no to counterpart bring and-unusual-punishment in a state a federal clause in Ro bin- punishment action or to defer state authorities.5 son not does extend to forbid possession reject To such narcotics, draw a distinction would be to I should hairsplitting judicial the kind of sanction its a use on merits. The Robinson sophistries per may rather that undermine determination that addiction se general advance a rational and fair administra- not be crime a made a articulated tion of the criminal law. law, substantive rule of which does drug turn on the nature of each addict’s (8) appellant’s The contention that habit; rather it was a broad institutional punishment sentence is cruel and unusual contrast, In determination. deter- similarly without merit.6 Justice particular mination whether defend- White noted in dissent in Robinson v. possession ant’s of narcotics came about California, State of U.S. particular place at a and in such time 8 L.Ed.2d 758 any punish- as circumstances to make eighth the Court’s use of the amendment pre- ment therefor cruel unusual in that case was novel since Court sumably require complex would factual substantively. used that amendment subjective determination of the motives Supreme What the Court struck down person capacity as well his punishment Robinson was not the as such control his conduct. It would thus be an legislature but rather the act a state going only determination, individual declaring the condition of narcotics constitutionality of the incarceration addiction itself a crime.7 It particular How, then, of that defendant. role of this court to extend such strain- possible separate is it the cruel-and- cruel-and-unusual-punish- ed use of the unusual-punishment issue in such case ment clause in the face “insanity” my from the In issue? view Court’s intimation itself that Robinson proper procedure is for the accused clause not to be so extended. See “insanity” grounded to raise the issue 664-666, Nor on addiction before the trier of fact put necessity should that Court be to the “some evidence” that he has some mental granting reject review in order ex- apart illness addiction that ad- pressly holding recently it so re- has long diction to and intensive use jected by implication. impaired narcotics have eroded and his thought open I Even if to us-—as capacity to his It control conduct.8 ignore do not —to the intimations of the inappropriate appellate to ask an court Supreme Court that use its cruel- punish- to hold as a matter of law prosecutor 5. The functions of a afford ex- 6. It if is so for no other reason than amples variety powers of a showing wide has made no ad- punishment “select” the compelled the sense ar- diction capsules. of the 28 gued by appellant, and to the for- voyage select If we are to outside um. is in One seen Judge Bazelon, the situation where the record it as does prosecutor jurisdiction might fitting in one ap- elects to one note that yield prosecution to pellant’s prior accused for convictions was for sale jurisdiction an offense to a which has of narcotics. capital punishment in not available regard Decision, 7. See in this Recent 51 jurisdiction. waiving Similarly prosecu- a Note, Calif.L.Rev. prosecute tor elect to or not to (1962). 76 Habv.L.Rev. prosecute, greater or to indict for rather e.g., States, lesser included on See Heard facts No. offenses United reasonably support U.S.App.D.C. -, which either. The 348 F.2d (showing record before us shows that addiction alone insuf require promulgated has ficient to General standards for Durham-McDonalA guidance charge rejects jury), Attorneys the obiter in the exercise in dicta States, of their discretion nar- observations of Brown United prosecutions. U.S.App.D.C. 76, cotics United States Attor- neys’ (1964), (Crim.Div.) Manual Title 2 and Castle v. § 86.2. United States, U.S.App.D.C. -, 347 F.2d 492. officer, police committed who would have Congress un- cruel and is fixed ment to arrest. he failed had imprisonment a misdemeanor provides it usual because Upon in- the officer’s 4-143. surrender who for those unfortunates carrying quiry, appellant he was drugs. stated appetite for appel- weapon. officer halted a When the Judge (concurring reaching in for it looked lant for Bazelon, from Chief dissenting part): himself, narcotics. he discovered the part in illegal appellant’s nor behavior Neither Sham, Arrest I. weapons about his when asked reaction says Appellant his arrest for way officer. to the is attributable in drinking public to cover was a sham in A not foreclosed defendant and hence a search for narcotics legal questioning the behind a motives heroin-hydro- twenty-eight capsules of discovery of evi- to the person arrest which leads his found on chloride mixture Notwithstanding of other crimes. dence suppressed his trial should have been 4-143, police such statutes as D.C.Code Act for Harrison violations. in arrest- exercise discretion substantial support his record lends some ing persons minor of- commission by a nar- was arrested contention. He drinking public1 in as When fenses such squad plain clothes, who cotics officer a minor statute is enforced misdemeanor for nar- he was watch testified that on larger detecting gamble as high density activity, in a narcotics cotics crime, To this discretion is abused.2 area; persons he neither looked discourage gambles, such evidence drinking ordinarily public nor arrested in Mc- Thus thus obtained excluded.3 committing persons his that offense in Knight U.S.App.D.C. presence; from the moment he saw (1950), F.2d defendant walking suspect- on V Street legally lottery viola- arrested for activity, fol- ed narcotics and therefore “purposely However, police re- tions. recognized appellant appellant; he lowed arresting him in frained prior before ar- narcotics offender they might have, street,” to be so as as resting Ap- him for the misdemeanor. premises able search conduct a stated, contradiction, pellant they expected fruits to enter. The drinking, alley other were men v In White search were excluded. approached were not even but U.S.App.D.C. officer. arrested F.2d 829 defendant was hand, support On the other there vagrancy police York and the New for the view that arrest was not occasion, conceded used the city Appellant sham. ordi- violated practice, their for narcotics. to search presence of a the immediate nance necessary legalize “If Goldstein, Police Discretion Not See suspicion, arrest mere then Invoice Process: Low the Criminal Visi problems grave policy and constitutional bility in the Administration Decisions suggestions posed such should Justice, 69 Yale L.J. 543 present If faced. restrictions argued that, many Some have re- attempts place too laws of arrest salutary. spects, “If this discretion is upon be- onerous burden every every policeman, prosecutor, every crime, modern cause nature of court, every post-sentence agency propositions be dis- should then performed responsibility its merits on their cussed resolved law, pre- strict accordance rules * * Vagrancy-Type Foote, Law cisely narrowly down, crim- laid the Administration, and Its U.Pa.L. 104 be inal law would ordered but intolera- 603, (1956). Bev. 649 Breitel, in Criminal Law ble.” Enforcement, Controls 427 27 U.Chi.L.Bev. Connecticut, Compare 367 Culombe v. Goldstein, supra. (1960). And But see 568, 632, L.Ed.2d 6 police the limited resources allocated to Frankfurter, (1961) (opinion of 1037 J.); may agencies compel States, such choices as Marron v. 275 U.S. United practical L.Ed. matter. legality arrest, July 3, 1964, We assumed the decided U.S.App.D.C. -, but evidence obtained there excluded 343 F.2d 242. * * * because “search in truth problem perhaps illustrated The best ** arrest, was not to an but incidental by appellant’s nar first conviction for in fact the arrest was incidental to [the] arrest, cotics offenses in 1956. On U.S.App.D.C. (Id. search.” at record, circumstances not disclosed Taglavore 831.) F.2d See also possess capsule he was found to one (9th States, F.2d heroin-hydrochloride mixture5 and nine 1961). marijuana cigarets. arresting of Although present case is close on ficer was a member the narcotics issue, sham arrest does record squad Metropolitan Police, with justify not reversal. Much of force statutory responsibilities to both enforce appellant’s of the contention that arrest Federal narcotics Dis statutes and the “merely” drinking public charged ap trict of Columbia Code. He destroyed would have been had it been pellant with violation two Federal clearly that other men in the established generally ap statutes which have been alley drinking. appear were It would against plied possessors heroin,6*plus this, was aware of defense counsel applying improper the Federal statute yet officer, who admitted others possession marijuana.7* Appellant there, was asked —and not were never did indicted under He all three statutes. say drinking. Appellant’s were —if subsequently pled guilty to one of although arrest, general- version of the it heroin counts. ly officer, with of the coincided could Appellant charged could have been point. on this disbelieved The issue 33-402(a), with violation of D.C.Code § was one inference drawn any per- which it renders “unlawful for upon credibility the fact-finder based * * * possess son to alone, demeanor. For reason I except drug, narcotic as authorized ruling would sustain the below. * * offender, aAs first he could Equal II. Protection $1,000, then have been fined from $100 The “sham imprisoned arrest” issue is not up year, or or to one only aspect prosecutorial might prosecuted both.8 Or he have been Appellant discretion in solely this case. claims 4704(a), under 26 U.S.C. Fed- § equal protection denial of provision results purchase eral outlaws prosecutorial proceed from discretion original except sale of narcotics laws, under the packages Federal narcotic rather authorizing stamp, with an tax equally provisions applicable than the and, 1956, punishes since first offenders District Columbia Code. As imprisonment years, of two to ten previously noted,4 have this claim has optional up $20,000; fine of reject substantial merit. We pro- first offender sentences under this merely judgment on the unelaborated suspended, vision probation can be Lloyd granted. affirmance in v. United No. might prose- Or he have been rehearing 4. Dissent from denial of en tion and the American Medical Associa- banc, Lloyd 1961). Drugs, tion Narcotic U.S.App.D.C. -, -, Nov. 4704(a). 6. 21 U.S.C. U.S.C. 4744(a). 7. 26 grains allegedly (.002 5. It contained 0.8 oz.) (See provisions in- note 21 8. These derived mixture. fra.) percentage Act, While the of heroin was Uniform Narcotics force alleged, high percentage territories, would states and all United States Ploscowe, unusual. Some Basic Prob- and enacted for Drug Sugges- lems in Addiction and Conviction under this Act does not count Drug Research, prior tions purposes : Addiction conviction (Report, multiple provisions Joint Crime Disease offender of the Fed Committee of American Bar Associa- eral narcotic laws. dissent, compelling pro- Justice Black In a Mr. which under U.S.C. § cuted imported dealings remarked: unlawful hibits addict-pos- applied to drugs, but can know, “So as I Court has far by sessors; punishes offenders it first argument approved never * * * imprisonment up $20,000 to and fine of here. Government makes pos- twenty years, without to five argument rests the stark [That] pro- suspension or sibility of sentence Congress premise has left to 7237(d). bation, 26 U.S.C. § attorney Attorney the district or the power say although Dis- to whether and General Thus, the Federal judge jury punish must iden- to create and said trict cannot be statutes felony grades a crime,9 choice tical or as mis- conduct as a different appellant was demeanor. the former decided felony a rather to for a be tried principle “A criminal of our basic misdemeanor, subjected mini- to a and only law Government invoking By mandatory sentence. mum prosecutes people under for crimes prosecutor statutes, both Federal passed Congress which statutes probationary suspended a foreclosed fairly clearly conduct and define the 4704(a) added three and sentence under § punishment criminal and the made mandatory years sen- minimum to the can This be administered. tence. principle if basic is flouted either as appeal these be selected present statutes can Hutcherson’s controlling law the whim for Federal narcotic at conviction third 4704(a) prosecuting attorney and or the offenses.10 Both U.S.C. § * * * punish third offender General. U.S.C. § imprison up $20,000 “ fine to * ** it is true Of course pos years, forty ten to ment for system Congress may that under our suspension of sibility probation judge jury vest with broad Multiple offenders sentence.11 power say punishment how much however, D.C.Code, punishable are particular imposed shall for a of- impris $5,000 fine of $500 and/or quite it fense. But different years. up ten term onment powers prosecuting vest such Suspension sen 33-423. § attorney. possible. probation tence are “The Government’s contention States,12 where In Berra v. United challenged] concept here our also be question prosecutorial choice people alike that all must treated statutes, majority tween two tax * *” * law. U.S. [351 under the explicitly refused Court 138-140, 76 at 690-691.] S.Ct. such discretion reach the issue whether felony constitutionally permissible. In and misde- The choice between Berra case, serious one meanor in have as choice was between statute did treating consequences as misdemeanor13 the offense choice involved treating felony,14 but case. for the instant On conviction another Berra, felony charge judge mandatory trial with no minimum sentence. rehearing optional my have an fine from denial of 174: both § 9. See dissent U.S.O. up $20,000; 4704(a) supra. Lloyd note but carries § v. United mandatory years, minimum of five conviction, 10. second Hutcherson’s twenty, maximum while violation cap- charges sold two arose imprisonment punishable by § 174 is heroin-hydrochloride mixture sules forty years. ten to agent, on each of two oc- an undercover 12. L.Ed. casions. un- offenses 11. 7237. Second § 26 U.S.O. 13. U.S.C. 4704(a) dif- treated der ferently 26 U.S.O. from second offenses 974 penalties provided imposed fifty

could have forced here and elsewhere over years. Compelling statute if he was misdemeanor At- prosecutor torney mis- convinced that prosecute for the District to felony. charging Here, hardly how- taken the local act would resolve prosecution ever, since, example, rather under Federal matter minor offenses precluded Maryland Virginia law than District narcotics committed in years. prosecuted No sentence less than ten could still be under Federal prosecutorial authority. correction of “mistake” possible. prosecutor would be When the statutory overlap Nor can be avoided mandatory “chooses” a minimum sen- by specifying quantities of narcotics tence, sentencing decision, he makes a justify prosecution which would sentencing information or either Congress one or another statutes. expertise sentencing. provided no distinguishing basis be- sentencing aspect prose- This of the drug tween “local” and “national” crime. distinguishes prior cutor’s choice The indications all are that it considered strongest support cases15 and signifi- crime matter of Federal equal protection argument.16 itYet Quantitative question- cance. are lines cannot be said that District statute 4704(a) able even as 26 between U.S.C. § prevail must over the Federal. While it 174, and 21 U.S.C. where there is evi- Congress carefully is doubtful that con- congressional dence of intent to make sidered their reconciliation when the Dis- “a pos- distinction between the subsequent passed,17 trict statute was its Congress sessors and traffickers.”19 For suggest provi- actions18 that the District plainly intended to the inherent overcome distinctly subsidiary sions to the Fed- proof Moreover, difficulties of eral. detection and nar- Federal statute application, by invoking of national presumptions and has been en- cotics violation example, Blockburger (1962); 15. Delmore, For v. United Olsen v. 48 Wash.2d 299, 180, 545, (1956); 284 U.S. 52 76 L. S.Ct. 295 P.2d 324 State v. Twit- (1932); chell, 314, Ed. 306 Gore Utah 8 2d P.2d 333 1075 386, 1280, 357 U.S. 78 L.Ed.2d (1958); 1405 States, and Harris v. United provision statute, 17. The of the District 19, 560, 359 U.S. 79 S.Ct. L.Ed. forbidding prosecution for an al- offense (1959), 2d 597 Court de ready law, tried under Federal did not prosecutor cided tiply mul could originate Congress but with the Uni- cases, counts in narcotics as to so form Narcotics Act. 33—424. possible longer malee if sentences con sentencing disparities imposed. While have secutive exist- terms were Here passage act, judge ed impos since of the D. C. choice forecloses greatly Compare have been increased since. The lesser sentence. State v. penalties Pirkey, (1955) act’s have not been 203 Or. P.2d changed years, (prosecutorial choice), sixteen while those of with State markedly Boggs, Federal acts were increased 57 Wash.2d 358 P.2d time, (1961) (sentence pro- ninety- day 1956. At the same of one years possible). were visions written into the nine Federal expressly recognizing sentencing aspect plain acts the enforce- also makes police. standing role of “person ment the District has U. aggrieved.” S.C. Rep. Cooper, manager 19. Remarks of floor applying House, Cong.Rec. 16. Those State bill courts doctrines H.Rep. equal protection prosecu (June 20, 1956). to criminal See also just Cong., 2, 4, 5, tions have No. stressed this factor as 84th 2d Sess. S.Rep.No. 10-12, (1956); central key, to their Pir rationale. State v. 64-65 H.Rep. Cong., 203 Or. P.2d 70 84th 2d Sess. 5-6 2(1955); McDonald, Cong., (Con- State Or. 84th 2d Sess. 13 denied, 1956) Report Congres- 361 P.2d 1001 cert. ference U.S.Code News, p. 8 L.Ed.2d 399 sional and Administrative reasonably indicating arising More- stances alone.20 en- for use over, quantitative were intended distinctions * * * grain illegal carry courage less” peddlers “one traffic. to operative amount.21 than the prosecutions “In serious of- for ** * two fenses traffickers prosecutorial agree Thus may charged, counts one under be this discre- But inevitable. discretion is the internal revenue laws and must be not Decisions tion is unbridled. other under [21 174].” U.S.C. § authority upon rational by proper made [Emphasis supplied.] statutory regard mean- to basis with due recently, intent. and the head of More letter Department the Criminal of the Division Attorney Recent instructions of Justice commented: relating prosecutorial deci- General to United States administrative sions in narcotic cases Thus States minor plete not, against sion of these local authorities. stances sessors. tions of the sellers or particularly ers, dealers and traffickers cutions of minors, such minor or compel “The * * * transportation * * * Title who emphasis Attorney’s often principal object of enforcement local offenses [rehabilitative] an persons, may 2, * engage in character are [P]rosecutions addict § not the * [addicts] guidelines those who 86.2—86.3 be should be prosecute the category drugs under which are considered * left Manual whether justified so as Not or are [C]riminal mere does suggest undergo falling in may provides: importation addict are purveyors, treatment. deal with addicts have certain some the United his choice. state prosecu- * * circum-, import- well posses- within prose- cases com- such pos- in- or or *. torneys’ Bulletin, from the Criminal Division. United offenders one indicates there was a reluctance on ence ^[*] first offenders. other previously U.S.C. ber view revealed excessive of * tion 4704 unless “During Title laws “In charged * * ^[*] sentence, probation Department panelist Section [on relating 26 * applicable ^[*] any § 174]. clearance States December * * Narcotic [I]n the White House are no case where a convicted applicable * * * shall be (a eligible to narcotics Attorneys appreciable Current Under violating Federal advised sections 4704 Volume and 14, 1962 prosecute used to the Drug [§ examination Title 26 * * * judge) and person, use to use Sec- exclusively suspension 4704] decrease received * * * Confer- * * * Abuse] offense, part federal felony, parole. its Num- first said At- [21 re- accompany Congress (1959); tlie failed to 20. 216 Or. 337 P.2d State 303 change penalties Harmon, with amendment 225 358 P.2d 1048 v. Or. consequence, it is (1961). 21 As a bring possessors possible to addict still language Eldridge, Section of that within the and the Law Narcotics (1962); compare under it are still the order indictments York 52-56 New stat- which, day. utes, See note 22 Text at discriminate enacted infra. Garnes, possessors among large v. States amounts United Reed, (one 1958); (2d N.J. State v. or of a mixture more ounces containing percent A.L.R.2d A.2d one or hero- better of N.J.Super. reversing, in, morphine cocaine), moderate compare (one eighth But United amounts more), ounce A.2d 873 Stever, amounts, York and minor New States McKinney’s Consol.Laws, Law, States Penal 56 L.Ed. Popiel, 754; Gainey, c. 40 State “ ** * discharge should [Authorization of their duties.” requested writing, setting 507(b). U.S.C. § forth some detail the reasons advised, however, We are not request.” extent to which these instructions The Bulletin referred to is to the same followed,23 and of the extent effect. squad Metropoli- the narcotics Department tan Police influences provide instructions a suit- These choice.24 doWe how know structuring prosecu- able framework for Attorney’s States allocation of cases be- torial choice. The reference the first tween Federal and local statutes com- instructions to “minor offenses above pares jurisdic- with that found in other which are considered to local in char- tions, where local suggests and laws are Federal acter” use of the “local” Dis- authority.24® enforced different We special trict statute in the absence of do not know whether information outside circumstances. The instructions for choosing record would show that the offense 4704(a) between 26 U.S.C. § greater importance ap- here of provisions other Federal pears record.25 from.the Department appears more definite. The invoking power to be its to “direct all I think open it would have been to de- * * * attorneys in the attempt fendant to show of abuse Attorneys 22. Letter to United States from legal smuggling sale or of narcotics. Of Miller, Jr., August 3, Herbert J. dated remaining percent 10 to 15 of cases possession narcotics, which involve of quantities clearly indicate that the pattern 23. Both the of cases before this defendant is a trafficker and not mere- Department court and the of Justice’s ly possession an addict in of his own suggest comments that 21 * * supply Hearings *.’ Before the rarely omitted from a narcotic indict- Investiga- on Permanent Subcommittee arising possession. ques- ment Comm, tions of the Senate on Govern- tion arises occurs whether this because Operations, Cong., ment 2d 88th Sess. penalties its heavier act inducement 3, p. (1964).” Pt. guilty pleas penalty under the lesser Columbia, Outside the of statutes. principal prosecu- Bureau is the source of appear experience 24. It would from our tions under the federal statute. squad policemen usually that narcotics reaching On the basis of cases specify charged the violations to be court, question I think there is a serious invoke the Federal statutes even where whether the United States of but a small amount of Metropolitan Department Police fol- prosecu- is involved. How this affects policy. low a similar enforcement It Delegation torial discretion is unclear. appear, example, would not that the prosecutorial of this discretion to sixty Commissioner’s statement that over questionable. percent persons prosecuted of the on the investigation of basis Bureau are not ad- Appellant’s petition rehearing 24a. en dicts, applicable id. at in the Dis- report by tano cites a recent the Com- trict, where addict defendants seem to be missioner of Narcotics that: exception. the rule rather than the Since policy “it is not the of the Bureau among only addiction traffickers is found jail Narcotics to advocate treatment of supply, at low levels the chain of Presi- drug addicts and that its enforcement Advisory dent’s Commission on Narcotic activity is directed toward the illicit Drug Abuse, & FINAL REPORT 40 [The trafficker. Commissioner] stressed proportion ‘ a low of non-addict the fact that the Bureau does prosecutions could indicate that enforce- making not concentrate its efforts on activity effectively ment is not directed possession-type against cases narcotic toward the illicit traffickers. In the ab- addicts. The enforcement effort of the data, course, sence more statistical against Bureau is directed the interna- possible it is not to be certain of this. tional and interstate In traffickers. fact, percent 85 to 90 my of the defendants Lloyd 25. See dissent v. United prosecuted in the U. S. supra, district courts U.S.App.D.C. note 4 for narcotic -, violations involve -, the il- 343 F.2d recently stated, However, pretrial as this court mo- prosecutorial on a discretion “although argument, Although nei the Robinson the indictment. tion to dismiss insubstantial, is one directly ther remote nor seek such re- not did weight light great sufficiency challenge which, of the below, lief did pun imposed by eliciting which have cases of the trial indictment at ishment, properly to be made is more admissions Government witnesses Supreme they knowledge Castle v. Court.” vio- had no direct U.S.App.D.C. -, statutes; knew lation Federal did 492. The Court possession, appellant's which was punishment possession of presumptive con- bar violation. I would drugs, drugs, challenge the act even to raise use strue this as sufficient drugs.26 being plenary the influence issue, hear- remand for hand, to the On other its references on indictment. permissibility punishing continued hardly use, etc, Punishment possession, III. Cruel and Unusual be taken could approve punishment persons argues Appellant time for the first responsible Thus their conduct.27 California, appeal that Robinson that Court stressed its view 660, 1417, L.Ed. 8 370 82 U.S. S.Ct. “involuntarily” or addiction occur pos- punishment (1962), 758 2d bars “innocently.” Moreover, re state court narcotics. session and concealment rest Robinson seems to luctance to extend argument penalty is not that presumption responsi a conclusive alleged is too harsh for inflicted Jersey bility. example, For New States, 357 U.S. crime. Gore v. United recently Supreme Court said: 386, 1280, 2 1405 L.Ed.2d 78 S.Ct. “ * * * being the influence (1958). Rather, that acts could it is drug be- of a itself antisocial is constitutionally be considered pas- It not some latent havior. crime, subject punishment criminal state, proclivity; active sive an drug any nature, performed when voluntarily induced laden with drug wholly addict of his addic- because present capacity in- further Robinson it was cruel tion. held jury society. Robinson is punish for his an addict and unusual contrary.” Mar- v. [State not to the addiction; addiction was characterized 188, 43, go, 45 191 A.2d 40 N.J. (1963) (emphasis supplied).] which could diseased state Appellant states crime. considered of voluntari- unexamined assertion This meaningful no difference linchpin there court’s ra- ness is punishment of an addict for tionale.28 between the being punishment of an responsibility and the addict Indeed, question body argument possessing addict for heart of the addict’s posses- not be should compellingly punished craves. ; (1963) 57, State 664-665, Ill.2d N.E.2d 225 188 26. 370 82 S.Ct. U.S. Bridges, narrowly S.W.2d 648 of Missouri v. 360 has read. Robinson been (Mo.1962), fol 188, Robinson Margo, where E.g., 191 40 v. N.J. State O, lowed. (1963); De 59 Cal. In re La A.2d 43 489, 793, 128, Cal.Rptr. P.2d 378 2d 28 to con- me failure It seems 856, denied, 83 S.Ct. cert. 374 U.S. explains a Cali- sider this obvious truth ; (1963) of Lou State 10 L.Ed.2d rejection Appeals District Court fornia Walker, isiana, 244 La. rel. Blouin v. ex suggested here. Robinson rationale cert. de 154 So.2d Cal.Rptr. People Zapata, 171, 220 v. Walker, v. nied nom. Watkins sub dismissed, Cal.App.2d (1963) appeal 11 L.Ed.2d 84 S.Ct. 12 L.Ed.2d 377 U.S. Texas, Tex. Salas v. State (1964). 174, appeal Cr.App., dismiss 365 S.W.2d Ayala, Cal.App. People ed, also 11 L.Ed.2d See 375 U.S. (1963). Davis, Compare People P.2d 61 2d frequently sion.29Addicts have been suc- jurisdiction raising cessful in insanity

defense.30 Other theories ex- responsibility, “pharma- cuse such as cological duress,” also have ad- been [See, g.,

vanced. e. Castle v. United 19,1964.] decided Nov. requires

I submit Robinson serious claims

consideration these as matters affecting responsibility. But I am con- agree

strained to that we cannot con-

sider these claims now since were

not advanced below and no evidence was offered to show that here

compelled by addiction. LINES, LIMITED, Appellant,

HELLENIC MOORE,

Luke C. United States Marshal Columbia, Appellee. for the District of

No. 18265. Appeals

United States Court of Columbia Circuit.

Argued April 1964.

Decided March Compare Prince, Durham United States D.D.C.Crim. U.S.App.D.C. 228, (March 17, 1963); No. 349-63 Bell, 45 A.L.R.2d 1430 States v. D.D.C.Crim.No. 969-61 Currens, (3d (Muy 1962); F.2d United States v. Pur- 1961). cell, (Jan. 14, D.D.C.Crim.No. 487-62 1963); Carroll, United States v. Wallace 1962). (June D.D.C.Crim.No. 383-62

Case Details

Case Name: Louis R. Hutcherson v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: May 6, 1965

Citation: 345 F.2d 964

Docket Number: 18375

Court Abbreviation: D.C. Cir.