United States v. Gary E. Jones, United States of America v. Robert Bryant

of America UNITED STATES

v. JONES, Appellant.

Gary E. of America

UNITED STATES BRYANT, Appellant.

Robert 74-1466, 74-1468.

Nos. of Appeals, Court

United States District of Columbia Circuit.

Argued Dec. 23, 1975.

Decided Dec. Swiss,

Marsha E. Washington, D. C. (appointed by court), for appellants. Demerath, Atty., Asst. U. T. S. Jeffrey Silbert, Atty., J. U. S. with whom Earl Wagner E. Terry, A. Charles John Gilman, Attys., Asst. U. S. Nicholas Stitt, David T. appellee. the brief for the time the record Atty., Asst. U. S. filed, appearance entered an also appellee. MOORE,* Judge

Before Circuit Senior Circuit, for the Second and WRIGHT MacKINNON, Judges. Circuit Opinion for the court filed by Circuit Judge MacKINNON. 294(d). pursuant U.S.C.§ by designation to 28

* Sitting building, purpose, announced their Dissenting opinion filed Circuit upon receiving response, no forced Judge J. SKELLY WRIGHT. way their inside. Appellant Bryant was MacKINNON, Judge: Circuit arrested hallway, in a and appellant Appellants Bryant Jones and were in- Jones was found in a locked room con- dicted for of heroin with in- taining a toilet and buckets of several in tent to distribute violation of 21 acid. 841(a) (Count 1), possession U.S.C. of § While the taking raid was place, two heroin in violation of D.C.Code 33-402 § other officers entered the basement of (Count 2), destruction of evidence in vio- the building, located the pipe drain lead- 23-591(d) (Count 3), lation of D.C.Code § ing to the toilet and removed a section maintaining a common nuisance in the pipe. Shortly' thereafter, a (Count 4). violation of D.C.Code 33-416 § acid, stream of water and pa- tissue All counts of the indictment were tried per rolls sealed in cellophane and con- a single proceeding in in the United taining powder, and approximately $131 District Court for the District of in torn currency emerged from the pipe Columbia, by as authorized (Tr. 73, 83). Tests on the powder in the 11-502(3). The fourth count was dis- § rolls disclosed that they contained heroin by missed the Government at the close (Tr. 177) with an estimated street value (Tr. 306). its evidence The remaining (Tr. 291). each $10 counts were submitted to the jury which guilty returned verdicts of not on Count guilty on Counts 2 and 3 with

respect to each appellant. Each was II. sentenced to concurrent impris- terms of time, For the appellants first ar years onment of months to five for gue on appeal this that their prosecution possession of heroin and one to three and sentence in the United States Dis years (Tr. for destruction of evidence trict Court under D.C.Code 33-402 de § 468, 473). We affirm. equal protection nied them and is forbid by den D.C.Code 33-424. The Govern §

I. ment urges us not to consider appellants’ August On Metropolitan two claim since they failed to make a record Police officers were conducting a covert by raising the point in the District surveillance on a locked and boarded-up However, Court.1 issue raised building located in Northeast Wash- presents solely question a of law which ington. They persons observed several would not materially be illuminated by door, approach the front ring buzzer, a the development of a further in record place quantity money a through a the trial court.2 We therefore turn to door, seconds, hole in the wait a few put appellants’ argument. the merits of through again, a hand the door and re- something ceive which was placed in a joined indictment charges against (Tr. 68-69, pocket 126-27). The officers for violations of both the fed then went back to their station and re- eral narcotics statutes and the District of turned with several other officers to exe- Columbia Code. Possession of heroin cute a search warrant. Groups of offi- with intent to distribute is prohibited by cers approached the front 841(a)3 and rear of U.S.C. and is punishable by Staggers, 1. See Berenter v. brought were not to the attention of the n.2, (1966); 972 n.2 court. Basiliko, Corp. T.V.T. (a) Unlawful acts. 257 F.2d 185 Except by subchapter, authorized any person shall be unlawful knowingly 52(b): 2. Cf. Fed.R.Crim.P. intentionally— or Plain errors or affecting defects substan- manufacture, distribute, dispense, or rights may tial be although they noticed possess manufacture, or with intent dis- Appellants point are correct than 15 not more imprisonment ing out the inclusion in the indict $25,000 and man up to a fine of years, charges under ment of the D.C.Code al three parole term special datory greater considerably lowed a maximum doubled are These years. penalty possession for simple following a felony conviction prior of a the event conviction than have prior would been re the United States law of had they charged available been 841(b). U.S.C. to narcotics. lating (following prior convicted conviction) un unlawful is made possession Simple simple under the federal 8444 and U.S.C. der federal However, statute. we held have of not imprisonment punishable Congress, powers the exercise of its up and a fine year than one more Columbia, over the District of can enact penal the maximum $5,000. again Once substantially laws which are identical repeat the case doubled ties are legislation provide national but which offenders. penalties. different See United States v. McDonald, 338, U.S.App.D.C. 343, 156 establishes contrast, the D.C.Code In 348, 513, 518, (1973). 481 F.2d 523 The posses- crime single generalized a only Attorney United States has discretion to 33-402(a). D.C.Code § narcotics. sion of determine which of the applicable stat provides: prosecu utes will form the basis for any per- unlawful for (a) It shall be Greene, tion. United v. 160 States U.S. manufacture, have un- possess, to son 21, 27, 1145, App.D.C. 489 F.2d 1151 control, sell, adminis- prescribe, his der denied, 977, (1973), cert. 419 95 U.S. S.Ct. any compound narcot- ter, dispense, or 239, (1975); 42 L.Ed.2d 190 Hutcherson in this as authorized drug, except ic States, 274, v. 120 U.S.App.D.C. United chapter. 277, 964, 967, denied, 345 F.2d cert. 382 pun- offense 33-423 makes this Section 86 U.S. S.Ct. 15 L.Ed.2d 151 for more by imprisonment ishable (1965). anyone the case of year. than one The joinder under of a previously been convicted who single a federal and D.C. statutes in in narcotics D.C. federal or of the violation dictment to be tried in the District U.S. is increased laws, penalty the maximum specifically Court is authorized Both $5,000 years. or 10 to ll-502(3).5 We have held on Code sev § of- narcotics prior convicted had been a (cid:127)eral occasions that the absence of thus were D.C.Code under the fenses specific pros federal statute superseding penal- maximum to the increased subject offenses, a ecution on the local defend- ties. final, substance; dispense, or he be sentenced to tribute a controlled become shall have imprisonment 2 more than or of not a term $10,000, create, distribute, dispense, years, or a not more than or or fine of possess dispense, with intent to distribute or both. a counterfeit substance. 844(a) (1970). § 21 U.S.C. 841(a) (1970) (emphasis added). 21 U.S.C. 11-502(3) provides:- 5. (a) any person It shall be unlawful knowingly intentionally possess jurisdiction or a con- In addition as a to its jurisdic- trolled any substance unless such substance district court other directly, pursuant pre- by law, obtained or to a valid tion conferred the United order, scription practitioner, or from a while States District Court the District of Co- acting professional jurisdiction prac- following: in the course of his lumbia has tice, except or as otherwise authorized subchapter subchapter this or II of this (3) Any applicable any law offense under chapter. Any person who violates this sub- exclusively District .the Columbia section shall be sentenced to a term im- joined offense is the same informa- prisonment year, of not more than one a fine tion or indictment Federal offense. $5,000, both, except of not more than or 29, 1970, 91-358, I, (July Pub.L. title prior if he commits such offense after con- 477.) 84 Stat. or viction convictions under subsection

821 violations of acts constitute whose Appellants’ equal protection ant ar can, under the statutory schemes guments both can be dismissed readily on the subject of a sin- statute, be the properly opinion Shepard, basis of our see 169 under a in the District Court gle trial U.S.App.D.C. n.25, at 365 515 F.2d at Shep- v. United States indictment. joint prosecutions 1335 n.25. successive Since ard, 515 F.2d U.S.App.D.C. 169 on identical or lesser included D.C. and (1975); v. Caldwell United States federal offenses emanate from the same 72-1513, 31, 1974) (Slip op. Dec. (No. sovereignty, they precluded are by dou Knight, 176); n. United States jeopardy ble considerations. Waller v. (1974). Florida, U.S. S.Ct. prosecu- such a only constraint on (1970); L.Ed.2d 435 United States v. federal and local is that where the Knight, are identical or where one offenses F.2d Appellants were a lesser included offense of would be subject thus only single trial on other, ultimately be may the defendant Counts 1 and 2 and were required to one only defense; sentenced proceed conduct one such Shepard, supra; Knight, scheme. See ings did not violate process equal due or (“What impermissible is not supra protection. for trial . joinder of offense joinder judgments but even with

concurrent sentences.” 509 363); F.2d at equal protection argument ad Canty, United States v. 152 U.S.App.D.C. vanced dissent overlooks this ca 469 F.2d 114 The offenses in the pacity federal courts District of (the in charged Counts 1 U.S.Code of- join violations of Columbia federal (cid:127) fense) (the and 2 offense) D.C.Code law and the D.C.Code in one trial. See the instant indictment fall within this 11-502(3) (1973). The dis restriction; latter but were argument sent’s is that a defendant in convicted only and sentenced under the District of Columbia is denied the Counts 2 and of which equal protection by being both were of the law sub charged D.C.Code, under so heavier jected penalty there to the risk of a “impermissible jurisdict was no . . . in federal joinder than offenders other ions6; judgments” is, in this case. that while a defendant in the position 6. The point of the judicial dissent on this economy is tions of and fairness to the capsulized in the require first sentence of its charges growing note 13: defendant that all out prosecuted of the same incident be in one in- defendants, repeat, The harm to I lies in feasible; dictment whenever thus is exposure their to the mixture of federal and proper possible, that where local law makes it penal schemes, local and the added risk of a charges separate penal two schemes lengthy exposure sentence which that cre- joined single also should be in a indictment. ates. alleged greater “risk” of conviction to (Emphasis added.) This is a misstatement which an offender tried in the District of Co- exposure the defendants’ and of the result charges on both lumbia federal and District is nothing this case. There is in this decision (as exposed compared to one tried in the Fifth risk”; "added that creates the offenders joinder customary Circuit where such is not exposed their own conduct themselves possibly context) never arises the same statutes, thereby creating both whatever dual equal protection violates no more than the penalty “risk” exists. The of either statute is punishment may imposed heavier be on sought by any indictment, all that is or that crime, an offender who commits a for exam- finally adjudged, can integral be as it is an ple, portion on the part New Mexico prosecutions Ute of such in the District of Mountain Indian Reservation rather than the imposed Columbia that the sentence be limited portion Colorado of that same reservation. to one scheme. See note 12 infra. Antelope, See United States v. imply If the dissent joining means to (9th 1975). Although Cir. we do not mean U.S.Code and D.C.Code offenses in the same imply disparity indictment, such a could never rise authorizes, as the statute creates a issue, clearly to the level of a constitutional greater we risk of conviction on one count or the find a rational basis for merely the difference here. other because more than one count See text at 823-824. charged, point it raises a which is inherent any joinder of offenses for trial. Considerá- (emphasis added). on local 523 F.2d at 406 may prosecuted be both District charges arising citing point, federal from the this case for a minor see thereby conceivably re- dissent at note the dissent same offense and fails to lengthier recognize supports disposition sentence than if he that it our ceive a charges respect. on federal of the instant case in this prosecuted alone, prosecution a double state and this, Beyond however, we disa unlikely to occur in gree strongly with the contention that We jurisdictions. other federal must dis- prosecutions dual are not possible in fed agree with this conclusion. jurisdictions eral other than the District that, Initially, we even assum observe Columbia; the authority cited by the is as the ing the situation dissent dissent for this proposition is less than it, equal has described no violation of persuasive. holdings of the United exists. a classification protection Such Supreme States nois, Court Bartkus v. Illi in United proper: based on location is 359 U.S. 79 S.Ct. 3 L.Ed.2d (9th Antelope, 528 F.2d 400 Cir. (1959), States, Abbate v. United filed, 1975),petition for cert. 44 U.S.L.W. 79 S.Ct. 3 L.Ed.2d 729 (Nov. 3, 1975) (No. 75-661), (1959),teach that successive prosecutions recently that it Ninth Circuit found was by different sovereignties do not violate permissible Congress provide by the double jeopardy clause of the Fifth that crimes statute on Indian reserva Amendment and are therefore constitu tions which several states encompass tionally permissible. Despite the unhap may punished differing be under the piness of some with the result in these Thus, laws of the dif separate states. cases, they remain the law. The dissent ferent committing offenders the same attempts to evade the force of the rule crime on different parts of the same fed by citing Department Justice policy and might punished eral be un reservation the working papers of a congressional equally, Congress power since has the that, commission to show whatever the might permit, a punishment

to make the definition and practice will not in of certain . . . crimes . follow a conviction or law, acquittal wholly dependent upon state state court. present This practice background, however, possible thus ... to risk is not [and] sufficient inconsistency within multi-state reser- to establish a violation of equal protection equal vations in order to secure treat- here. The policy of the Department in the of Indians and Justice prosecution ment is but an internal policy, non-Indians each without the force of law and sub state] [in legal ject a to fortuity change suspension view or at any time. [W]e Furthermore, less below, based on location to be much oner- as discussed the At torney General’s inherently policy against ous than one based on the is succes prosecutions sive suspect only, classification of race. is equally as ap- essentials, Actually, might entirely stripped escape consequences bare to its fender contending dignity criminal offender dissent is that a of his crimes does not rise to the of a right depriving ap in the District of Columbia who violated constitutional so that these pellants sporting by refusing federal and statutes has a constitu of that chance to both local trial, right through prosecuto for one such of tional to be tried limit the severance or discretion, juries arguably apt because are more to rial to one count could be said to fense n guilty process equal a verdict on one count if the denied due return have them or the protection Brady Maryland, at the same accused tried on both counts of the law. is. However, 83, 90-91, 1194, pure speculation it con time. 10 L.Ed.2d U.S. S.Ct. surely Bowles, jury just (1963); U.S.App. clude that a would not as con United States v. n.11, on one count if the offenses were severed vict 1314 n.11 denied, proven (1973), the same evi and the cert. 415 U.S. 94 S.Ct. always possibility (1974); dence. There is cf. Johnson v. L.Ed.2d 888 evidence, Robison, n.4, any jury might law and the flout the 94 S.Ct. theory justice sporting (1974). a based on but such L.Ed.2d 389 speculative probability (risk) that an of juris- District as in other trict of Columbia—a situation forseen by plicable apply not to simulta- dictions, and does Constitutional Convention when it plenary jurisdiction within the District. conferred prosecutions neous Con- Columbia, to be otherwise gress over District of If it were construed U.S. Const, Attorney I, intent of the opinion exceed the art. 8—it is our would that a the ex- pursuant contravene statute enacted povfpr and would General Congress. equal See and so construed raises protec- will of no pressed authority issue, The other 11-502(3) (1973). since the concerns that under- argu- supports claims its prohibition lie the against that the dissent successive merely working papers prosecutions have no application ment —the to the —was sec- proposed background discussion simultaneous trial of District and federal federal criminal code. in the tions of a revised District of Columbia. have been involved since justifies The sections This fundamental difference a Compare Final of the Report interpretation dropped. unique uniform on Reform of Fed- National Commission statute. (1971) Laws §§

eral Criminal prohibition against successive (1973). Cong., 93d 1st Sess. with S. prosecutions embodied depart- in federal Hearings on Reform of the Fed- also See policy mental and in the statutes of Laws Before the Sub- eral Criminal some appears states its find roots in Laws and Procedures comm. on Criminal two main First, concerns. there is the Comm, Judiciary, on the 93d that, lingering feeling despite the Bart- Sess., Y, part at 4812 1st Cong., cases, kus line of spirit the rule “[t]he sections not been delet- Even had those against double jeopardy ... prose- ed, apply not to dual they would certainly violated.” 22 C.J.S. Criminal District of Columbia. See in the cutions Law (1961) 296d (emphasis added). discussion infra. also Handbook See of the National Con7 ference Commissioners on Uniform that, also notes whatever dissent State Laws 323 (1932) (Commissioners’ the Supreme Court decisions Note Prefatory to Uniform Narcotic allow, state follow- might a Act); Drug I Working Papers the Na- or ing acquittal conviction a tional Commission on Reform of Federal have here contra- case such as we would Criminal Laws 343-50 (criticizing prosecutions vene the dual bar the soundness of the Bartkus line of de- legislation* uniform narcotics enacted cisions but their validity doctrinal agree, We are unable most states. statement the constitutional rules of however, equal protec- a denial of jeopardy); Fisher, double Double Jeopar- the fact solely tion could be found from dy Federalism, 50 Minn.L.Rev. 607 the District of that courts in Columbia (1966); Comment, 5 Cal.W.Int’l L.J. 399 differently a uniform statute interpret (1975); Comment, 534, 44 Minn.L.Rev. jurisdictions. in other than do courts Cf. (1960). By 537 asserting “dubious Alabama, 730, 732, Kidd v. 188 23 U.S. doctrine, vitality” Bartkus the dis- 401, 402, (“The 47 L.Ed. 669 S.Ct. sent impliedly endorses view. is not make state of Alabama bound to principle its laws harmonize The second concern appears states.”) present those of In the have prompted prohibitions other against suc- case, argument further prosecutions the dissent’s is cessive is one of fundamen- e., our of that by that, weakened construction tal fairness —i. completely apart prosecutions, dual from any limitation, uniform bar to constitutional a de- (1973), by inter- subjected Code 33^424 which we fendant should not be pret prose- it to successive harassment of a prohibit double for Department cutions and not simultaneous ones. See- same offense. See Justice, Attorney General’s Press text Release infra. Because 828-830 6, by 1959) created the dual at 3 unique (April situation (establishing federal jurisdiction courts in the Dis- policy prosecute state following 824 tities, Columbia, such as the District of Comment, 5 Cal.W.Int’l

prosecution); which are treated as states for (1975); Comment, other 399, 409-11 44 L.J. . . . . For 534, purposes jeop- double (I960). A mo- Minn.L.Rev. ardy purposes, those entities are part to the conclusion ment’s reflection leads sovereign. of the same barring reasons for suc- that both these application have no prosecutions cessive Report Final of the National Commission prosecutions. When to simultaneous on Reform of Federal Criminal Laws 63 of Columbia offenses federal and District added) to sec- (comment (1971) (emphasis prose- and charged in one indictment are 707). (comment tion also id. at 64 See trial, there is no additional cuted one 708). Thus, section even an authority defendant; and, since harassment of expressly by relied on the dissent has until the jeopardy jury does not attach is recognized that there is a rational basis in, v. Shepard, sworn see United States distinguishing for between the District 353, n.7, jurisdictions and other Columbia (1975), no F.2d 1329 n.7 claim of purposes of a ban on dual prosecu- could attach when two jeopardy double tions. time, brought are at the same really equal There then is no protec- assuming even the demise of the Bartkus tion issue in this case. The District is as Knight, rule. United States v. See by much bound prosecu- successive 21, 28, tions bar of 33-424 in any section as (1974). interpretation analogous This state by legislation. bound similar It is which, permitting, state law al- to that only when we consider the matter of violations of both state statutes lows prosecutions simultaneous that a differ- municipal joined ordinances to be in a District, ent result occurs in the and for indictment, see, e. single g., State v. good reason. Clark, 291 Minn. 189 N.W.2d 167 prosecution statute, simultaneous (1971) (construing 609.035), Minn.Stat. § 11-502(3) (1973), is a normal despite prosecu- the fact that successive response to the co-existence of two stat- by respective tions those laws utory by schemes enacted the same sov- governments prohibited by the double ereign, provides a reasonable basis jeopardy clause of the United States distinguishing the District from oth- Florida, Waller v. Constitution. 397 U.S. er jurisdictions. “The Constitu- (1970). L.Ed.2d 435 S.Ct. require does riot situations ‘which It is therefore our conclusion that are different in fact or opinion to be in the capacity federal courts District treated in law though they were the join of Columbia to federal and District ” same.’ Goesaert v. Cleary, 335 U.S. charges which emanate from the same 464, 466, 198, 199, 69 S.Ct. 93 L.Ed. 163 sovereign single prosecution creates (1948), quoting Tigner Texas, 310 U.S. adequate an distinction between the Dis- 141, 147, 60 S.Ct. 84 L.Ed. 1124 jurisdictions trict those other federal Reed, also See Reed v. may by be barred considera- policy 92 S.Ct. 30 L.Ed.2d 225 prosecuting previous- tions from offenses (1971); McDonald v. Board of Election ly tried This states. distinction Commissioners, U.S. S.Ct. the National recognized Commis- 1404, 22 (1969); L.Ed.2d 739 Roy- F. S. sion on Reform of Federal Criminal 412, ster Guano Co. v. Virginia, 253 U.S. Laws, which, promulgating proposed 415, 560, 40 S.Ct. 64 L.Ed. 989 revisions to the United Code States [la- Congress is not enacting barred from ter see discussion dropped, above] legislation. for the District of Columbia would successive prohibit prosecutions by merely because situation which (or “local” governments and federal vice prompts juris- it does not occur in other versa), stated: It plenary jurisdiction dictions. over the District of Columbia. U.S.Const. art. specifically

“Local” is defined here I, 8, States, cl. Palmore v. 17. United . in order to exclude those en-

825 to persons of D.C. statutes 1670, application 36 L.Ed.2d 93 S.Ct. offenses under D.C. Parker, have committed who (1973); Berman v. U.S. Thompson readily On this basis (1954); law. 99 L.Ed. 27 Gud- 75 S.Ct. from the instant case. distinguishable Cardillo, v. mundson (1942); Sablowsky v. 126 F.2d 521 Having concluded that it is con States, (3d 101 F.2d 183 Cir. stitutional for the prosecution join 1938). offenses, federal and District it only re Furthermore, have no valid appellants mains for us to determine whether arising from their ex present complaint statutes in this particular preclude case verdicts on jury to the risk of posure joinder for trial. such D.C. since they federal and both The federal narcotics statute under guilty on the D.C. of only found which were indicted was en- sentence and since the ultimate fenses part acted as of the Comprehensive Drug only on the D.C. counts imposed was Abuse Prevention and Control Act of statutory involved one 1970.10 That Act was designed to deal when D.C.Code 11- Actually, scheme.7 with the problem drug abuse “by pro conjunction 502(3) is considered viding for an overall balanced scheme of jurisdiction, law in this the decisional criminal for offenses involving of sentences forbidding imposition drugs.” H.R.Rep.No.91-1444, 91st Cong., according statutory to more than one 2d (1970), Sess. 1 Cong. U.S.Code & Ad scheme, infra, the see note 12 two rules 1970, p. min.News Appellants 4567. ar punishment together assure gue that prosecution jointly under feder and local District statutes both federal al and D.C. law frustrated this balanced same offense will never be im for the scheme of penalties. However, there is respects In some this favors posed. no evidence that Congress intended juris in other offenders over offenders language to mean anything other than dictions, may occasionally since the latter that the Act itself internally consist subjected prosecutions. to dual be ent. The argument dissent’s that Con Appellants rely primarily on United gress intended to establish “carefully Thompson, crafted hierarchy penalties” is correct (1971), denied, F.2d 1333 cert. as far as it goes; but the legislative 31 L.Ed.2d 467 U.S. S.Ct. history makes it quite clear that this was held that (1972), where this court hierarchy penalties: provisions bail of the Dis post-conviction Reform Act8 ap trict of Columbia Court purpose of this bill is to consoli- plied only persons convicted of local date and patchwork rationalize the persons apply offenses did existing legislation bring and to about in the District un convicted U.S. Court some needed changes so that our basic federal, statutes when such bail der Federal tool is as effective would otherwise be available under the as up possible. to date as The bill Thompson codification, federal Bail Reform Act.9 represents a a moderniza- tion, proposed application thus involved the simplification and a of existing statute to a federal offender. dangerous a D.C. Federal narcotic and drug contrast, present case involves the merely laws. But we are not redeco- 31(c); argue joint States, Appellants prosecu- also that the Crim.P. Keeble v. United deprived right jury them of U.S. (1973), their to a S.Ct. 36 L.Ed.2d 844 charge simple they requested but on the lesser included offense of never (21 given. 844) be U.S.C. under Count 1 deprived them of lower and thus maximum 8. 23-1325(c). D.C.Code § repeat special pro- term for offenders and the 9. 18 U.S.C. § 3148. bation, parole clearing provisions and record 844(b). first offenders under section How- 10. seq. (1970), U.S.C. § 801 et 84 Stat. 1242 ever, appellants would have been entitled to count, such a on the federal see Fed.R. 826 existing legal bill, structure.

rating the I do not find through the a new Rather, indicating we have laid founda- the intention provision clear tion; thereon a sound frame- whether the enacted as to Congress a firm but sensible pre- work within which will be possession laws on State may be carried drug policy they preempted, Federal are not If empted. out, we have it all with where a topped and could arise situation apprehended by law tools. long-needed could be person young enforcement charged pos- with officials Federal (Jan. 1970) (state- Cong.Rec. session. during Hruska debate on S. ment of Sen. added). Dole also 3246) (emphasis Sen. section provisions Under view: placed pro- held this could be on that individual and, have his record of perhaps, bation 3246 is not the entire answer to S. Enter expunged. conviction promise drugs problems the America, day, the next say us State —let a sound provides regu-. but it still had one mar- defendant when this law-enforcement basis for latory and possession. his cigarette ihuana Now, significant dealing with a matter of could be sub- young person this human concern. provisions State jected to developments pur- must be Other possession felony, a making such law in the fields of uniform sued State expunging for the provision with no conventions, laws and international would such sub- Not the records. provide leadership but we can valuable prosecution sequent prior —or —State this bill and establish the enacting of the Federal purpose defeat enlightened as an Federal Government records, but would expunging example for our and other States the new atti- variance with also be at community of members of the nations. Federal Government tude (Jan. 1970) (de- Cong.Rec. mere penalties lessen for ought we 3246) (emphasis added). bate on S. drugs. controlled use of these by other and Con- Statements Senators Chairman, Thus, if we do not Mr. the Act gressmen confirm was in- drugs dangerous field of preempt this comprehensive only tended to be insofar and criminal— entirety in its —civil as the offenses were concerned. U.S.Code intent of praiseworthy much of See, g., H.R.Rep.No.91 1444, e. 91st — posses- as it relates legislation, this Sess., I, (1970); Cong., part at 6 2d drugs, will be but an and use of sion 27, 1970) (Jan. (statement Cong.Rec. 1322 possible with State empty gesture, Cong.Rec. Montoya); of Sen. 33313, lurking just around 23, 1970) (statements (Sept. every prosecution. Federal corner from Reps. Rogers, Bush); Beall and only amounts of what not concept 24, 1970) Cong.Rec. (Sept. (state- but prosecution, to a double Robison). That this Rep. ment the new Federal frustration of also the penalties prohibit scheme of does not preemption be- warrants such purpose, prosecution under local law as well dual in these instances. ing applied perceived by Rep. as federal was Robi- 23, 1970). (Sept. Cong.Rec. 33307 son, during floor who voiced his concern point was concern on this Mr. Robison’s debate on H.R. 18583: Rep. Springer in later answered Although I not familiar with all am exchange: following penalties dealing State laws ROBINSON: MR. I am drugs, the manufacture of famil- iar with the of a number of laws that make the marihuana,

drugs, particularly However, I ought think it to be felony.. pending legislation, been, in made more clear than it has so contrast, posses- reduces debate, during far that this more and, as I sion to misdemeanors read approach realistic to the humane and their own courage drug them to reform for mere use or penalties question specific This laws in similar fashion. including marihua- drugs, possession penalties is of state ex- na, very preservation limited effect will have a Act, the pressed This in section 708 is because we across the Nation. U.S.C. 903: revising modernizing only § are the regard laws in this existing Federal provision subchapter No of this shall means what and —if section 708 it indicating an be construed as intent on have no intention of say seems —we Congress to part occupy the of the the existing preempting State laws in this provision operates, field in which that intent, this limited regard. same To including penalties, criminal to the ex- then, that, the fact has to be added clusion of on the same State although overlapping there an is subject matter which would otherwise jurisdiction, very drug it is rare that State, authority be within the of the possession or marihuana use cases unless there is a conflict positive be- purview. come into Federal provision tween that this subchap- Now, then, ask ranking let me the ter so and that State law that the two Foreign member on the Interstate and together. cannot stand consistently Committee, Commerce distin- from guished gentleman and able Illi- (Emphasis added.) Congress Since (Mr. if Springer), nois consideration indicated that it considers the District of given aspect in committee to this analogue Columbia to be the of a state and, specifi- of the bill’s actual effect for certain it purposes,11 is reasonable to cally, problems what would be in- conclude that the Act was also not in Congress pre- volved if to seek to field, tended to occupy the including empt laws penal involving State mere criminal penalties, to the exclusion of use or controlled drugs. the D.C.Code. conclusion That is also buttressed of Congress, refusal MR. May SPRINGER. I say to the despite its well recognized authority to distinguished gentleman from New so, do to legislate any restrictions on the York that we did not seek to preempt application existing of the D.C. statutes laws State and I think very wisely so. subject. on the same While the Act spe It for the Federal cifically repealed or amended numerous Government to have an agent in every prior federal dealing statutes with nar community. . . . Enforcement (see Act, 701), cotics section no mention for the part most local level will was ever made of D.C. narcotics place take through the local law-en- statutes. Finally, of considerable agencies. forcement significance that same session of Congress adopted which revision of Cong.Rec. (Sept. 1970) (em- federal narcotics statutes also re phasis added). 33-423, Robison went vised Mr. on to D.C.Code the penalty § penalty provision conclude that the new scheme Uniform Narcotics (cid:127) Pub.L.No.91-358, not preempt Drug did state but Act. See § served as an to states to en- Stat. 603 example See, g., pro- 11-503 provides: § 11. e. 28 U.S.C. § 1451 vides: § Definitions. purposes chapter— For of this Supe- 11-503. Removal cases from the (1) The term “State court” includes' rior Court of the District of Columbia Superior Court of the District of Columbia. A civil action or criminal (2) The term “State” includes the District Superior Court of District of Colum- (Added 91-358, Columbia. I, Pub.L. title bia is removable to United States Dis- 172(d)(1), 29, 1970, July 591.) 84 Stat. trict Court for the District of Columbia in chapter accordance with 89 of title Unit- (July ed States Code. Pub.L. 91- I, 478.) Stat. title jury acquitted them on the federal history and legislative light charge. That section provides: express statement any in the absence we conclude contrary, the Congress to 33-424. Effect of acquittal or con- Drug the Control passage of federal viction under Federal narcotic laws. prosecution of local prohibit not Act did person prosecuted No shall be for a D.C.Code, under narcotics offenders violation any provision of this chap- and local of when both federal even ter if person such has been acquitted same indictment joined in the fenses are or convicted under any United States District Court.12 returned in U.S. statute governing the sale or distribu-

tion of drugs, narcotic of the same act which, or omission it is alleged, consti- argument final Appellants’ tutes a violation of this chapter. precludes 33-424 convic that D.C.Code § count once the on the local narcotics We conclude that the only reasonable in terpretation language13 of this is that so, Canty, being so 12. This United States v. statute as to make it 152 consistent with other 103, U.S.App.D.C. (1972), inap- sections of that statutes. The sume 469 F.2d 114 same statute or with other not, observes, plicable Canty, argued, pre rule does as is here. as dissent against any premised interpretation compre- on the existence of a of a statute by very which would view it as a hensive scheme of nature made resort to similar local improper. By which its codification of case indeed, charges frequent; law. Such much of our manner. say codifications are contrast, developed the statute statute law has which in this 708, presently given by concerns us in section 21 The authorities U.S.C. the dissent 903, only Sands, affirmatively preserves no different. See not C. D. state Statutes Statutory recognizes (4th remedies but also forcement of similar governments. and Construction § concurrent en- 46.06 ed. 1973). Co., In Jarecki v. D. laws state and local G. Searle & 367 303, 307, 1579, Cong. Spring- See Statement of U.S. (1961), 81 S.Ct. 6 L.Ed.2d 859 827, supra. page Supreme It is er at therefore Court not at construed a section improper, separate all where the laws of two of a statute so as to make it consistent with violated, jurisdictions statute, have been for the of- other sections of the same while charged Inc., Mining, 38, fender to be in the same indictment Morton Delta 42 (3d 1974), granted, 906, under both local and federal statutes where Cir. cert. 95 824, governmental organizations (1975), are so related S.Ct. 42 L.Ed.2d 835 the court possible. interpreted as to make this situation in sought This is not like the section of the Federal Coal Mine Canty Safety prosecutor Health where the and Act to be consistent with to add a local the Administrative assault with a Procedure Act. deadly weapon comprehensive pe- to the hand, entirely On the other it is unreason- culiarly robbery charged. aggravated federal bank 33-424, view able to as does the necessarily which included the assault dissent, making improper joinder of fed- charges. See dissent at 833- eral and District The two narcotics 836. here—one laws violated Moreover, Canty court was confronted federal, part the other a of the D.C. sentences,” particularly “pyramiding of with a sovereign, Code—emanate from a common much the same as do state statutes and munic- 128, 117, supra 469 F.2d at which resulted imposition of consecutive sentences from the ipal Florida, ordinances. Cf. Waller v. local convictions. It was for the federal and (1970). U.S. 90 S.Ct. 25 L.Ed.2d 435 “punishment of the cumulative Richardson for procedural permit, If local statutes as does dangerous weapon with a in addition assault here, 11-502(3) D.C.Code § there is no consti- robbery by force and violence to bank [that infirmity charging tutional all such offenses was, view, Canty plain court our held] single trying in a indictment and them in a Id. Under our decision in United error.” single supra. trial. See text at 821-825 Knight, U.S.App.D.C. States v. Congress legislatures The and state have the however, (1974), which restricts F.2d power provide arising all offenses out arising to offenses under one statu- sentences crime, D.C., of a common federal and or state scheme, tory in the District this is local, jointly. Note, must be tried See Shep- of Columbia. See also ard, States v. Jeopardy, Twice in 75 Yale L.J. 292-96 F.2d Moreover, (1965). interpretation other effectively the District of Columbia would statutory Shep- known canon of con overrule our decision in United ard, “well States v. applies fact struction” cited the dissent in F.2d 1324 (1975), only interpretation upheld validity to the of a section of a of such a neously joint prosecuted under D.C. stat- precludes different of two where a defendant has been and where utes indictment14 (possession of the same nar- with intent to distrib acquitted or convicted fenses prior at a trial. simple pos ute under the cotics offense U.S.Code joinder D.C.Code) prohibit does not were inv statute session offenses under both and D.C. olved.15 schemes which are simulta- here, expressly provided joinder which the dissent seeks as for in D.C.Code that of hav ing 11-502(3). power though the entire sentence It is not within the of this vacated even no § decision; punishment prior double exists here and none to overrule our such would division change only by sitting be fenses tried in the District of can be made this court Columbia for of simultaneously under federal banc. Since we continue to adhere to the' en view, supra. and the D.C.Code. See note 12 we hold that D.C.Code 33-424 Al same though appel only it is true in the instant case that successive and not simultaneous bars prosecutions. might punishment only interpretation lants if statute, have received a lesser is the Such they reasonably give had been convicted under a different that can effect to both one way validity 11-502(3). that in no affects the 33-424 and § they actually prose the manner in which by two cases cited the dissent do not 14. The They cuted. were convicted under District of us that the statute should be inter convince preted punishment Columbia law and their is within prosecutions to bar simultaneous statutory limitations. and offenses. State v. Wort federal ham, D.C.Code Lewis, Wortham, Thus like fails to address 148, (1945), 63 Ariz. 160 P.2d 352 in particular problem the presents. which this case rather than volved successive simultaneous say, does, To as the dissent that the prosecutions. argued The state there had charged D.C.Code violation was as a lesser prosecutions of the same offense successive included offense to the federal narcotics then and state law could be al simply is incorrect. The indictment despite wording the clear of the lowed on the statute charged separate shows them to have been ground that the federal statute was a offenses, they which in fact were. See note 15 penal measure and the revenue state statute a infra. only possession Since one count rejecting argument, In the court law. found plimentary” possession and the other with intent to statutory two schemes to be “com distribute, they prosecution required do not constitute is, the court found [sic]—that by the “same act or omission” as that both statutes were aimed at the “control D.C.Code 33-424. See note 15 infra. narcotics,” and abolition of the traffic in id. at prior 160 P.2d at 355. A conviction under holding Shep- 15. Under our in United States v. would, the federal statute under the Arizona ard, 353, 361-62, 515 F.2d statute, therefore bar state for the (1975), 1332-33 the Government is not present same offense. Since we are faced at general principle prevented as a from simulta- prosecutions neither with successive nor iden neously charging in one indictment offenses offenses, tical the Wortham case does not con arising under similar federal and D.C. statutes trol our decision. single from a transaction. See also United Knight, States v. Nor does the decision of the Ninth in Circuit F.2d Each offense here arises States, Lewis v. United 235 F.2d 16 Alas separate regulatory provision under a federal, denied, (9th Cir.), —one ka 341 cert. essentially scope one local in (1956), change —differ- 1 L.Ed.2d 89 our S.Ct. design ent in time and from the other. We Lewis, appel present view case. reject any therefore contention that the two had been identical violations lant convicted of charges merged. Upthe- See United States v. Drug Act of the Alaska Territorial Narcotic grove, (6th 1974). 688 n. 10 Cir. Act, the federal Narcotic and and Harrison that, being It terms. While the should also be noted sentenced Lewis court did not make clear its reasons for consecutive far from statute, lesser included offense of the charges, “possession” the crime of the territorial it can be dismissal narcotics under imposi “posses- the D.C. statute sion” inferred that this was a reaction to the covers all forms of punishment cumulatively “possession of dual for one crime—a vio includes jeopardy. “spirit” See with intent to lation of the double distribute.” The D.C. theory separate supra. supported scheme thus does not make a out of the at offense text This vacating specialized “possession the action of the Lewis court more (not, respect Alaska conviction intent to one count of the distribute.” In this under the 833-834, pages “possession” states at as the dissent entire of narcotics includes conviction); as to the other the sentence the federal offense of with intent to in effect. The distinctly allowed to remain greater count was result in distribute and is offense marked contrast to simple possession Lewis is thus in than the crime of under the objection failure to raise an III. his counsel’s at trial. returned to appellant Neither trial the time set courtroom reasons, judg- foregoing For the recess on the after the luncheon court from appealed ment 106), (Tr. the trial day of first Affirmed. the case jury court informed 108). (Tr. continue their absence would WRIGHT, J. Judge SKELLY Circuit shortly reappeared Jones Appellant (dissenting); Ill), appellant but. (Tr. thereafter the trial con- did not return and Bryant 11-502(3) of the District of Co- Section objection absence without tinued his juris- lumbia Code extends the criminal appellant. counsel either from diction of the United States District of- to the Marshal’s Bryant surrendered for the District of Columbia to Court trial day fice the third “joined local offenses are immediately brought into courtroom same information or indictment with ver- the retired to consider its jury after Federal offense.” In recent years (Tr. 442-43). instructions to dict In its jur- Attorney’s United States use of this court that were jury, they stated provision charges isdictional to combine prejudiced against to either not be statutory under both local and federal Bryant’s or of fail- Bryant Jones because pen- schemes order to seek maximum promptly ure to return for trial and greater alties than would be available they any were to as not draw inferences under either scheme dif- alone raised (Tr. Bryant’s his absence guilt from see, questions protection, of equal ficult 427). Shepard, v. 169 e.g., United States 353, 367-68,

U.S.App.D.C. 515 F. (Bazelon, J., (1975) C. argues now he 1338-39 Jones 2d unduly by concurring); Knight, was United v. prejudiced continua States 21, 27-28, the trial in the absence of his U.S.App.D.C. However, (1974) curiam), (per codefendant. instructions 360-361 and of con- by see, given adequate local, the trial court were g., struction of e. United both Greene, any prejudicial to eliminate consequences U.S.App.D.C. States v. laws, to Jones. v. (1973), See States Hender F.2d and federal son, 472 157 (6th 1973). see, Canty, F.2d Cir. In g., e. v. United States addition, any prejudice (1972) was by waived 469 F.2d 114 U.S.Code, which, 844(a) (1970), years. Compare (1973) 21 U.S.C. § D.C.Code 33—423 scheme, statutory 841(b) (1970). virtue the federal ex- with 21 U.S.C. It is therefore possession clearly wrong cludes the offense of with intent brought to term both penalty possession distribute. The under under for the D.C.Code and under the U.S.Code as great the D.C.Code is three as as that “the times same” or “an included” offense. The provided simple possession for under the U.S. “posses- mere fact the local offense of case, (assuming, prior offense). Code each sion” uses the same word as the federal stat- Compare with 21 and § 33-423 ute includes similar federal offenses does 841(b) respect; preclude joinder U.S.C. § another In not its with other however, possession trial, the crime Shepard, under counts in one indictment and cf. (but included) supra, 362-63, D.C.Code is a lesser offense 515 F.2d at possession 1333-34, than with under statutory intent distribute scheme each provides “possession” the U.S.Code because the D.C.Code defines in different terms. course, punishment: for a lesser maximum for the Of a defendant in the District Co- possession may ultimately first offense intent to dis- lumbia be sentenced under prosecuted tribute which would be as unlawful supra. one scheme. See note 12 “possession” present maxi- the D.C.Code the distinguishable situation is thus imprisonment year, mum at one while Upthegrove, supra, set from that which existed in years; the U.S.Code allows a maximum of 15 where a defendant was sentenced under two previously provisions event the offender has been of the federal narcotics law. convicted, respective are 10 limits in- curiam). appeal present charged Had been (per with sim possession issues. ple volves all of these of narcotics in Columbia, court outside the District of in the District tried Appellants were they subject would have been to a maxi charging posses indictment on an Court penalty mum for simple possession of intent to distribute heroin with sion of years heroin of two imprisonment and a 1). (Count They of federal violation $10,000 fine. The disparity between this simple possession charged with also were maximum and the 10 years in of evi 2), (Count destruction heroin $5,000 prison and fine to which they maintaining a com 3), and (Count dence might have been sentenced under 4), all in violation (Count nuisance mon possession provision District’s forms the law.1 The fourth Columbia District of appellants’ basis for claim that the com dismissed, appellants were count bination of federal and local charges vio They on Count 1. jury acquitted right equal lated their protection of 2 and on Counts guilty found the laws. I believe their claim raises a tyere concur however, sentenced to substantial question concerning the con years months to five of 20 rent terms stitutionality of the Government’s action years to three and one addition, in this case. I agree with evidence. destroying appellants that their conviction on the prohibited D.C. by D.C.Code law does not differentiate be (1973).4 Finally, I believe nar simple possession and sale of tween court’s decision in United Can cotics, sentence of providing a maximum ty, supra, requires at least that we re $5,000 and a imprisonment years ten appellants’ duce prison posses terms for law, hand, the other Federal fine.2 sion of heroin to the maximum sentence of heroin with intent possession punishes provided by federal law.5 a maximum sentence of by to distribute a of not more than years and fine Equal The Protection Claim $25,000 simple possession with a imprison years Appellants’ equal of two penalty protection claim is maximum Thus, $10,000 easy to and a fine.3 com understand: unlike ment defendants in prosecu any Court, other federal District bining statutory provisions, they put the were faced with the possibility this ease was able of being heavy years prison at risk of the sentenced to 10 pos- defendants for with intent to session punishment possession of heroin. The sentences they preserving possibili provide prison while received maximum distribute terms greater that if the offense could two and a half times as severe as ty could imposed the defendants would be sub be under proved, congressional be enact- to the rather than to the feder ment for ject D.C. of heroin in any oth- for the included offense penalty jurisdictional al lesser er federal court. Thus the simple possession. provision contained in 11 D.C.Code brought year prison 1. under 21 would have been double the one $5,000 841(a) (1970). provided U.S.C. § The local fine for first offenders. brought under 33 Possession with pro- D.C.Code intent § distribute is (possession), 591(a) (1973) (de- 841(a), scribed in 21 pro- § D.C.Code U.S.C. § which also evidence), struction of and 33 vides increased D.C.Code § second offenders. (1973) (maintaining nuisance). a common p. 4. See 832 infra. 423(b) (1973) provides 2. 33 D.C.Code this § only challenge 5. The to the destruction of evi- penalty for violators of 33 see § brought by Jones, dence conviction is who supra, previously note who have been con- prejudiced by contends that he was continua- offense, victed of a narcotics see note 3 infra. during tion of the trial the absence of code- Bryant. Simple possession prohibited by agree fendant I majority is U.S.C. contention, 844(a) (1970). this Since both had raised for the § first time on appeal, previously been convicted of narcotics of- without merit. fenses, penalty 844(a) the maximum under § case, ing vitality of the doctrine that in this the dou- 502(3) (1973), applied as jeopardy ble clause is not violated discrimination based an invidious created prosecutions by successive different sov- the trial occurred solely on the fact that (the ereigns state and the federal District of Columbia.6 within the government) though even both trials in- this majority opinion dismisses ar- volve the same criminal act. Bart- See opinion “on the basis of our gument Illinois, kus v. 79 S.Ct. at 363 U.S.App.E).C. see 169 Shepard, 3 L.Ed.2d 684 n.25, Majority 515 F.2d at 1335 n.25.” strength of Whatever the current The cited footnote states: op. at 820. be,7 Bartkus might rule that doctrine holding any argument eliminates Our cannot applied be to this case. Forty- under both statutes is eight of the adopted 50 states8 have ei equal protection. a denial of A de- ther the Drug Uniform Narcotic Act or subject only single fendant is trial Act, Uniform Controlled Substances possi- in this district and there are no both provisions9 of which contain similar consequences being ble adverse due to to 33 D.C.Code 424: guilty found under both federal and ultimately since he can be only sentenced under one 33-424. acquittal Effect of or con- scheme. viction under Federal narcotic laws. obvious, however, being put It is person No shall be prosecuted for a risk of receiving prison term five times violation of any provision of chap- great, actually receiving a sen- ter if such person acquitted has been tence two and a great, half times as as a or convicted any United States defendant in other federal District statute governing the sale or distribu- might Court receive is an “adverse con- tion of drugs, narcotic of the same act sequence.” Thus the footnote in Shep- which, or omission alleged, it is consti- ard and the majority’s reliance on it in tutes a violation of this chapter. this case assump- make sense on the tion that outside the District of Colum- The prosecutions accepted bar to dual bia a defendant could be tried on a fed- by 42 states in addition to the District of eral narcotics charge and then be tried Columbia.10 Only in the District of Co by the state lumbia, for a violation of its own among all of jurisdictions the arising narcotics laws from the same act. whose local legislatures have chosen to This assumption depends on the continu- adopt the jeopardy provision double judi- Florida, 6. The 387, discrimination is 1184, not shielded from Waller v. 397 U.S. 90 S.Ct. simply cial examination (same). because it arises from 25 L.Ed.2d 435 operation jurisdictional the of a statute. (ULA) 24, 8. See 9 Uniform Laws Annotated government permitted The should not be (Supp.1975). Drug The Uniform Narcotic accomplish through discriminatory jurisdic- Act is in force in the District of Columbia and through tion what it cannot do ry statutory coverage. discriminato- states, seven while the more recent Uniform * * * To hold Controlled Substances Act is the law in 41 government otherwise would allow the Virgin states as well as the Islands and Puerto roughshod run over the Fifth Amendment in Only Hampshire Rico. New and Vermont jurisdictional sacrosanctity, the name of em- adopted have neither Uniform Act. ploying jurisdiction as an inviolate tool. 405; 9. Uniform Controlled Substances Act § 400, Antelope, Drug United States v. Uniform 523 F.2d Narcotic Act § 21. (9th 1975), filed, petition Cir. for cert. 44 U.S. 10. Of the seven states which still utilize the (Nov. 1975) (No. 75-661). L.Week 3281 Act, Drug only Uniform Narcotic Maine has 7. “This long court is of view adopted that even this prosecution not gia, the dual bar. Geor- * vitality Hawaii, Indiana, settled doctrine is of dubious Kentucky, *.” and Montana Knight, United States v. adopted have the Uniform Controlled Sub- nn.13-14, 27 & 360 & barring prosecutions nn.13-14 stances Act without un- (1974). Neil, But cf. Robinson v. der both state and federal laws. See 9 ULA (1973) (referring 307-308; 93 S.Ct. 35 L.Ed.2d 29 (Supp.1975). id. 76-77 repudiating sovereignty doctrine); but not dual gument by concluding that laws,11 for an Section 424 possible uniform “precludes prosecution under D.C. stat- to trial on both brought to be individual only utes where defendant has been charges narcotics and state federal acquitted or convicted of the same nar- Operation of act.12 the same prior federal cotics at a trial.” offense 502(3) anomaly to create this Code § Majority op. (emphasis at 829 original). against individuals clearly discriminates support no I can find this conclusion. of Columbia.13 in the District tried joint pros I am convinced Since The majority’s approach is directly increased sen resulting and the ecution contrary to the decision of the only other improper in this case tence appellate federal court which has been law, it un federal I find local and both upon interpret the meaning called pros to determine whether necessary the Uniform Narcotic Drug Act’s double was also unconstitutional. ecution prosecution bar in the context of a single Section 33-424 of the D.C.Code trial under both federal and local drug laws. See Lewis v. States, also contend that 33 D.C. Appellants denied, cert. (9th Cir.), F.2d 580 joint trial on prohibits their Code U.S. 136, 1 77 S.Ct. charges. and local narcotics The L.Ed.2d 89 federal Lewis both the court majority opinion appellants’ dismisses ar- and the Govern- 822-823, majority recognized court 11. The misconstrues this discussion that “the * * * suggesting realistic that District residents are denied consideration as equal that ex- protection cept emergency because District laws differ in unusual or cases there is no Majority op. multiple states. at from the laws other sound warrant for federal and state argu My point assuming 823. is the converse convictions even constitutional au- majority: thority” District law refuted ment is the same tions which can raise an issue of constitutional jurisdic as the law in the 42 other Knight, supra dimension. United States v. adopted have bar note 361. at 509 F.2d at District, only in the of the Uniform Acts. Yet provision, all the states with this uniform of can defendants, The harm to repeat, I brought lies a defendant be to trial on exposure their local lengthy to the violating mixture of federal both local and federal narcotics penal schemes, possibility added the, This not because the risk of laws. exists exposure sentence which that narcotics laws differ from other states’ creates. District majority’s emphasis Attorney’s on the fact that but because the United one trial is use, approved today, jurisdictional provi District because of a jeopardy double considerations, majority history op. no indication sion whose contains justifies neither explains nor accepted intended to alter the uniform it was away inequality by subject- created prosecuting drug pattern of offenders under a ing District of Columbia law, defendants drug to this in- or a local but not under both. creased risk. course, not, prevent state laws do 12. These majority difficulty seems to have under- trying government an individ- from standing meaning of the word “risk.” See charge arising from the a narcotics ual on majority op. concept n.6. The is not difficult: previously been act for which he had same beginning at the of defendants, their trial these However, by the state. tried charged unlike possession individuals Department policy after a State that it is narcotics with intent to distribute in federal be no Federal trial there should courts Columbia, outside the District of faced act or acts unless there are for the same possibility the jury acquitted that if the them involved, compelling Federal interests charge, they might of that up still be sentenced to prior should be case authorization which years to 10 simple possession. for Appel- appropriate Assistant At- from the obtained lants were position thus in a worse than simi- having jurisdiction torney the over General larly situated individuals outside the District. subject matter of the case. short, they greater faced a risk because they had more jury to lose from a verdict ac- Justice, Department of United States Attor- quitting greater them of charge the finding but Manual, (1970). neys’ 2tit. at 5 See 1 Work- guilty them of the lesser. ing Papers of on Re- the National Commission (1970). Laws 346-347 form of Federal Criminal Nothing concept my in this of risk or in majority’s Despite suggestion the that Jus- opinion the suggests adopted that I have the Department’s policy cannot form the basis “sporting theory justice,” id., tice thoroughly so claim, majority equal protection op. at of an by majority. discussed and refuted the purpose further this of the Uniform Acts in- the untenable considered itself ment state laws do not by insuring that the majority the by adopted terpretation adjuncts of the federal mere become here: laws. prosecu- prohibits statute The Alaska the accused if thereunder the dissipate attempts majority the under or convicted “acquitted been arguing precedents of these force act for the same laws Narcotic Federal prose involved and Wortham that Lewis which, consti- omission, alleged, it is or offense, whereas the same for cutions Appel- of this Act.” a violation tutes with in possession charge the federal that the suggests lee Government] [the charge of and the local tent to distribute where the apply might prohibition the case present involved in possession Federal charged under offense is same or omis “the same act concern do not How- concurrently. Alaska and ever, characterizing meaning of 33 D.C. within the sion” argument note Majority op. 424. at 829 & Code cites appellee worth” of “doubtful one the ma permits case Neither 14. Supreme the Court from a decision In Wort- attempted distinction. jority’s Wortham, Ariz. Arizona, v. State indict that a federal court held ham the that and concedes 160 P.2d mari (1) importation of charging ment * * * is within the the conviction registering paying or without huana Alaska statute prohibition as a (2) acquiring tax and appropriate I under Count the conviction that bulk marihua possessing transferee be vacated. should charged tax paying the na without added). Ac- (emphasis F.2d at 581 information a state offense as same vacated the cordingly, the Ninth Circuit the Ari illegal alleging possession It is true conviction. Alaska basis Act. The Narcotic zona Uniform law con- court vacated a local Lewis the was that conclusion the court’s a federal con- duplicated viction upon the same charges are based “[b]oth here we are asked viction whereas the same marihuana.” possession act— 63 of a a local conviction because reverse 160 P.2d at Similar Ariz. at lan- but the acquittal, Lewis found that Circuit in ly, the Ninth allow us to attach does not guage charge and the local distinction. to this factual significance Territory’s of the Alaska for violation Wortham, Lewis v. cited in Drug State Act involved Narcotic Uniform States, provides the ra- supra, date of the because offense same “[t]he Arizona Lewis in the Su- same, tionale for individuals the same is the offense explanation preme Court’s defendants and are compli- isAct alleged.” Uniform Narcotic “State narcotic is type same our federal to the laws of mentary Here, too, the federal F.2d at 581. [sic] and abolition in the control narcotics government involve the same local 63 Ariz. of the traffic in narcotics.” same defendants possession of the in the understanding This 160 P.2d at 355. There is no basis day. the same Acts is local purpose of the Uniform federal and concluding Notes of the act or Prefatory “the same supported charges do not involve meaning of the Laws. on Uniform State within Commissioners omission” in the Act in force 9 Uniform Laws Annotated Narcotics See Uniform jeopardy provisions The double District of Columbia.14 457, Krell, deprived N.J.Super. law in 2 them of their 125 local Count State v. 14. See also alia, right, recognized by majority, majority op. (finding, state the inter 399 311 A.2d n.7, jury simple possession federal to a instruction on the lesser included charge barred of pos- simple possession conspiracy federal offense of under charges distribute and to to of possession majority responds and of intent to distribute to this claim with Count 1. The sess distribute). by stating with intent to that would have been they entitled to such an instruction argue prosecutor’s if had re- Appellants that the also majority quested it. Id. the possession Thus concedes charge simple to decision

835 the has prosecutor case present In the interpretation of majority’s The Sec narcotics of the D.C. violation charged fails to follow the well 424 also to a included offense a lesser law as statutory of construction canon known the federal narcot of to “be construed of violation charge a statute requires that action, the treats This given provi to all its that effect ics law.15 so com rather than subsidiary sions, inoperative will be law as part so that no law, is forbid federal insignificant.” void or to the superfluous, plementary or in accord interpreted Sands, Statutory Con 424 D. Sutherland Section 2A den precedent, See, only relevant (4th 1973). ed. e. the 46.06 struction ance section, the can Co., the v. G. D. Searle & 367 of g., purpose Jarecki the the Since 1579, statutory construction. 81 6 L.Ed.2d S.Ct. ons U.S. the improper, Inc., (1961); Mining, Morton v. Delta joinder 859 re should be (3d 1974), possession 42 Cir. cert. for 495 F.2d conviction 95 S.Ct. granted, U.S. versed. (1975). settled, It is well

L.Ed.2d 835 By interpreting Section 424 as long Congress before I think and has been since must, we we would require that the United enacted double Section Attorney States for the District clause of the Fifth Amendment of Co jeopardy lumbia to choose whether to being prosecute an individual from tried protects alleged act before two tribunals narcotics violators under for the same local or law. authority their from the In United v. Shep which derive States ard, supra, we forcing Grafton v. United stated that such United States. 333, 354-355, States, general choice as a rule S.Ct. would be con trary This constitu to the intent of Congress 51 L.Ed. 1084 that successive tri local and prohibits statutory restriction tional schemes together.” “mesh and federal law for the als under local We recognized, how ever, in the District of Columbia. E. that we must particu same act examine the lar Shepard, supra, question v. statutes g., determine 1331; whether, case, 515 F.2d at in a U.S.App.D.C. specific prosecu at tor should Knight, supra, required U.S. be United States choose. See 361-63, 27-28, 509 F.2d at 360-361. App.D.C. Congress at 1332-1334. In this case majority’s interpreta to the

According embodied in requirement Section provision tion of that adds Section prosecutions narcotics be nothing to this well established constitu brought law, under either federal or D.C. majority’s reading rule. tional Since congressional- but not both.16. Since this 424 into a mere re transforms Section rejected. be dundancy, it should nullify today’s if it found count necessary two the three elements counsel could that alert trial charge pos- by requesting ruling an instruction on the fed- conviction offense, thereby precluding session with intent to distribute. Id. at 429- eral lesser included simple possession separately 433. That offense un- conviction for the same a second specified change in an indictment does not its law. der local character as a lesser included to the offense majority “simply views it as incorrect”

15. possession crime with intent to distribute. say possession offense was the local majority’s general discussion of the rela- charged as a lesser included offense to the tionship possession of the local statute to the allegation possession with intent distrib- completely ignores way federal statute clear, however, Majority op. ute. n.15. It is charge local was used in this case. participants that the the trial considered the 16. The choice local count to be a lesser included offense of between schemes is strictly prosecutorial Judge a matter of the federal count. Thus the District in- discretion. States, jury simple Hutcherson v. United structed the possession (1965); 279-280, be if the F.2d 964 could considered de- id. at (Burger, (“there guilty greater concurring) F.2d at 969-970 J. were found not fendants charge possession allowing is no substantial with intent to distribute. difference between Similarly, Attorney jury the United States Tr. at 439. was told that it the District of proceed Columbia to either the defendants on under the muriici- could convict United the cution under applicable on state laws. I limitation do imposed ly of Co challenge District not proposition, the this and in Attorney States limita Canty from the itself we also recognized that the no different lumbia most comprehensive existence of a statute prosecutors on did imposed away shy prevent to not reason enforcement of applicable no I see states,17 state criminal law. U.S.App.D.C. at enforcing it. from n.20, 117-118 at 128-129 F..2d n.20. Doctrine v. The of United States Can- entirely The separate question decided ty Canty and raised here is whether al- lowing a prosecutor federal to bring Canty, supra, In simultaneous under both federal improper United States court held local statutes Congress’ contravenes Attorney’s charge decision to the defend- purpose in establishing a “carefully robbery with ants with bank force and hierarchy crafted of penalties.” violence violation 18 U.S.C. 2113(a) dangerous and assault with a The majority recognizes that of 22 weapon violation Report House on Comprehensive prosecutor 502. The had drafted the Drug Abuse Prevention Control Act of to both local indictment and fed- 1970,under which were prose- eral rather than violations the federal cuted, “providing identified for an over- committing crime of an assault with a penalties all balanced scheme of criminal dangerous weapon while robbing a bank involving drugs” for offenses as one of (18 2113(d)) in order to U.S.C. increase the Act’s three methods for dealing with penalty. maximum va-We drug problem abuse. H.R.Rep.No. cated the conviction on the local assault 91-1444, Cong., Sess., (1970), 91st 2d charge. Finding that “[t]he majority op. quoted at 825. How- robbery bank statute establishes a com- ever, majority weight attaches no prehensive prosecuting scheme for and this statement since “there is no evi- punishing persons who federally-in- rob that Congress dence intended this lan- banks,” sured we held that the prosecu- guage anything mean other than that not, “[b]y tor could venturing outside the Act itself internally consistent.” * * * scheme, circumvent disagree. I Id. carefully the scheme’s crafted hierarchy Although the Act as it was finally en- penalties.” 152 U.S.App.D.C. at 116- acted into bill, law was a House its en- 117, 469 F.2d at 127-128. Since the forcement and penalty provisions origi- prosecutor here done what exactly nated in sponsored S. 3246 by Senator he we said could do in Canty, Dodd. As he was explaining his propos- sentences must be vacated. al, emphasized Senator Dodd the impor- majority rejects application tance of the bill’s scheme penalties: Canty primarily because the federal nar- summation, Mr. President, I believe law specifically preserves cotics state one part of S. 3246 which Majority op. narcotics laws. at 825-828 takes the biggest and best step for- & note disavowal ward with respect drug control is congressional of any preempt intent the new penalty structure we have state dealing laws with narcotics does proposed. not, however, problem deal with the Canty Cong.Rec. focuses. All that stat- Senator ute does is state emphasized federal narcot- Hruska the care with which ics law is not to prevent prose- intended the bill’s had been structured: supra.

pal legislation 17. See note 12 the federal in his discretion or allowing counterpart in a state to his bring or to defer to state au- a federal action omitted; (footnote emphasis add- thorities” ed)). with entirely circumstances changes penalty the structure ferent These diverse histories. arbitrarily, separate but upon decided were not careful examination result of the were The Subcom- relevant facts. Everyone is interested in the Delin- revised Juvenile Investigate mittee bill. Upon the years penalties followed included for several quency closely, say some enforcement has very inspection problem abuse drug the say just the persons Others testimony from been weakened.

receiving changes the idea of the aspects of The opposite. in all knowledgeable ** * in the han- flexibility more to create problem. and those of first offenders dling the we have re- which evidence The actually salvaged, while might be who penalties that the severe shows ceived bearing great intensity with down existing laws have imposed peddler. the and the pusher upon fact, drug abuse. deter failed to * * * is true. opposite the Cong.Rec. Simi noted Representative Bush that larly, are penalties bill not “[t]he President, that I hasten add Mr. other, consistent with each but with the provisions contained penalty while rest of Federal criminal law—some also tough, they are are in this bill be thing present which cannot said for penalties The and credible. rational Congressman laws.” at drug Id. 33314. the crime and to fit are tailored pointed to the reduction in penal Boland that crime. who committed person possession:19 ties em other senators at Several Id. 1664. sys of the bill’s significance phasized of One the. most striking features of their penalties and approach to tematic the new penalty structure is that ille- rationalizing penalty hope that gal possession of a controlled drug for * * improve law enf bill would structure one’s own is a use misdemeanor. orcement.18 This simple section on possession viola- tions reflects the judgment of most (cid:127) H.R. considered When the House authorities that harsh have Act, the central became little deterrent value and often ruin rationalization importance the life of an individual involved. It pen- and reduction of penalties, criminal is unfortunate that the Federal Gov- simple received possession, alties rarely ernment has cases of simple in the greater stress than Senate. even possession within jurisdiction its so emphasized the Springer Representative that this kind of sensible statute could of rationalization: importance apply. hoped It is may serve no there has been though It is not example as an to the as they big- drug up point. to this reform their drug own abuse laws. by the may be caused gest problem drug many added).20 there have been at (emphasis fact that Id. Repre about under dif- explained have come laws which sentative Weicker law en- See, Cong.Rec. g., (1970) (re- imprisonment e. years up and a fine of Young); $20,000. (remarks marks of Sen. id. at 1183 Second offenders to be sen- Dole); (remarks Sen. id. at 1323 of Sen. Mon- tenced to than not less ten or more than 40 toya); (remarks Cook). $20,000. id. at 1666 years, up of Sen. also be could fined law, majority appears of the 1970 20. to enactment to believe that con- 19. Prior unexplained gressional expressions provided hope that the states U.S.C. § drug support suffi- of a would be would follow the federal narcotic lead its con- illegal- joinder to allow a conviction for clusion that the cient evidence ly this case importing drug Congress. States. into does violate the See intent majority op. provided first of- a sentence for 825-828. 1 cannot Section 174 under- logic transmogrification less five or more than stand of this of not than fenders Act great rationalization times as as the benefit which and a half forcement cannot, we consistently provides, secure: penalties would their sentences under Canty, allow me, however, the areas of this bill To count to stand. emphasis deserve are primary which respectfully I dissent. penalty provi- and enforcement sions, areas since these are the of

have been most in need reform. penalty structure has been de-

signed types to accommodate all of offenders,

drug casual drug from the experimenter organ- and to the

user syndicates engaged criminal

ized importation

unlawful and distribution drugs. of illicit But what is most im- et KERR-McGEE CORPORATION penalty about this structure is portant- al., Appellants, it is credible in penalties that that the fit crimes and the persons who being credible, By commit crimes. Rogers MORTON, Secretary B.C. of enforceable, law will be which is Interior, et al. today existing case law. No. 74-2088. every at 33631. Virtually congress Id. States Court of Appeals, United who spoke man on the bill sounded one of District Columbia Circuit. more or of these themes.21 Argued Nov. 1975. it is clear that attached Congress Thus “carefully craft importance to the great Decided Dec. 1975. penalties” of hierarchy by ed established Comprehensive Drug Abuse Preven espe Control Act of cially to the reduction penalties

simple possession of narcotics.22 Canty that it is duty preserve teaches our congressionally structure established rejecting prosecutor’s attempt sentencing provi

circumvent the Act’s

sions. Since in this case were to maximum terms two prison

sentenced congressional (remarks id. desire for to rational- derson); Rep. the states at 33654 of Dono- drug along (remarks hue); id. their laws established Rep. Hogan); ize the lines at 33656 of support id. at (remarks Rep. Cohelan); id. at 33658 the new for the federal statute into of Attorney’s disruption Pickle). (remarks Rep. of the or- of derly of scheme the federal law. majority notes, Congress 22. As the al- did not See, (1970) (re- g., Cong.Rec. e. ter the D.C. statute when it enacted the Com- (remarks Rep. Madden); id. prehensive Drug of at 33297 marks Abuse Prevention Con- id. at Rep. Smith); (remarks Rep. of of trol Act of and the same session of Con- Jarman); Rep. Rog- id. at 33304 (remarks gress penalties provided of revised the also ers); Robison); id. at 33307 (remarks Rep. However, suggest of the D.C. law. these facts id. at (remarks Clancy); id. Rep. Congress prosecutor at 33311 of wished the id. at (remarks Beall); choice; Rep. they way 33313-33314 of have a no indicate (remarks MacGregor); id. Rep. Congress single wished a sub- individual to be id. at 33647 (remarks Rep. Skubitz); ject conflicting penalty provisions to the Rep. Sisk); (remarks id. at 33650 (remarks noteworthy, both statutes. It is in this con- Rep. Keith); Rep. id. at 33651 (remarks nection, Congress same which revised Brotzman); Rep. id. at 33652 (remarks the D.C. law’s also left untouched 33 Broomfield); id. at 33653 (remarks Rep. An- D.C.Code §

Case Details

Case Name: United States v. Gary E. Jones, United States of America v. Robert Bryant

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

Date Published: Dec 23, 1975

Citation: 527 F.2d 817

Docket Number: 74-1466, 74-1468

Court Abbreviation: D.C. Cir.