United States v. Lindelow, Crim. No. 77-81.

• Citation: 435 F. Supp. 367
• Decision Date: 23 August 1977
• Docket Number: Crim. No. 77-81.
• Parties: UNITED STATES of America, Plaintiff, v. Craig William LINDELOW, Defendant.
• Court: U.S. District Court — District of Puerto Rico

435 F. Supp. 367

UNITED STATES of America, Plaintiff, v. Craig William LINDELOW, Defendant.

Crim. No. 77-81.

United States District Court, D. Puerto Rico.

August 23, 1977.

José A. Quiles, San Juan, Puerto Rico, for plaintiff.

Robert J. Griswold, San Juan, Puerto Rico, Wm. J. Sheppard, Jacksonville, Fla., for defendant.

OPINION AND ORDER

TOLEDO, Chief Judge.

Defendant herein has been charged with two counts. The first of said counts charges him with knowingly and intentionally possessing with the intention to distribute approximately 816.5 grams of cocaine, "a Schedule II Narcotic Controlled Substance" in violation of Title 21, United States Code, Section 841(a)(1). The second count charges defendant with knowingly and intentionally importing into the United States approximately 816.5 grams of cocaine, "a Schedule II Narcotic Controlled Substance", in violation of Title 21, United States Code, Section 952(a).

Defendant has filed several motions in the instant case. We will now consider them in chronological order.

I. First Motion to Dismiss for Failure to Comply with the Jury Selection and Service Act of 1968.

Defendant challenges the provision in the Amended Plan for the Random Selection of Grand and Petit Jurors pursuant to the Jury Selection and Service Act of 1968, as amended of the United States District Court for the District of Puerto Rico, which allows "a woman with custody and care of a child or children under five years of age" to be excused from grand jury service upon request. He alleges that this provision fails to insure his right to a grand jury selected at random from a fair cross-section of the community.

Title 28, United States Code, Section 1863(b)(5), allows district courts' plans to excuse from jury service groups of people or occupational classes for which attendance would be an extreme inconvenience or undue hardship. See also: House Judiciary Committee Report No. 1076, U.S.Code Cong. & Admin.News 1968, pp. 1792, 1800.

Besides the fact that defendant has failed to show that the excuse granted women with children, if any has been given, results in a substantial underrepresentation of women, the constitutionality of similar provisions in other districts' plan has been already upheld. See: United States v. Eskew, 460 F.2d 1028 (9th Cir., 1972); United States v. Briggs, 366 F.Supp. 1356, 1363 (N.D.Fla., 1973); United States v. Armsbury, 408 F.Supp. 1130, 1144 (D.Oregon, 1976).

Defendant's reliance in the case of Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975) is misplaced. The Taylor case involved a provision which automatically excluded all women because of sex from jury service unless she affirmatively requests to be subject to jury service. The Supreme Court stated in this case that:

"The States are free to grant exemption from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community's welfare. (citations omitted). It would not appear that such exemptions would pose substantial threats that the remaining pool of jurors would not be representative of the community." Ibid, at p. 534, 95 S.Ct. at p. 700.

Therefore, defendant's motion to dismiss is denied.

II. Second Motion to Dismiss Because of the Unconstitutionality of Schedule II of Title 21, United States Code, Section 812(c).

In his second motion to dismiss the indictment defendant alleges that the charges are invalid because the underlying criminal statute, Schedule II of Title 21, United States Code, Section 812(c), is unconstitutional due to violations of due process and equal protection. Specifically, it is urged that said legislation is arbitrary and capricious in that cocaine is not, as a matter of scientific or medical fact, a drug or substance which has characteristics or properties which could validly justify the findings necessary in order for it to be classified as a narcotic in Schedule II of Title 21, United States Code, Section 812(c). The constitutional attack to that section is further expanded and defendant alleges that said legislation invalidly interferes with private activities and personal rights without there being any valid legislative purpose or objective, and that insofar as said legislation involves cocaine, the statutory penalties there prescribed are unconstitutional in that the penalties are violative of the prohibitions of the Eighth Amendment of the United States Constitution against the imposition of cruel and unusual punishment.

ANALYSIS

The Comprehensive Drug Abuse Prevention and Control Act of 1970, Title 21, United States Code, Section 801 et seq., establishes five schedules of controlled substances. The substances are grouped according to their potential for abuse, their medical usefulness, and the consequences of their use, Title 21, United States Code, Section 812. Cocaine has been classified as a Schedule II substance for regulatory purposes based upon the aforementioned criteria.

Controlled substances listed in Schedules I and II of the 1970 Drug Act designated as narcotic drugs are grouped together under Title 21, United States Code, Section 841(b)(1)(A) for penalty purposes. Cocaine's inclusion within the "narcotic drug" penalty classification of Section 841(b)(1)(A) subjects a person upon conviction to a maximum of 15 years imprisonment and $25,000.00 plus a period of special parole. By contrast, those drugs in Schedule I and II which are considered non-narcotic under Section 841(b)(1)(B), carry a maximum of only 5 years imprisonment and $15,000.00 fine.

Defendant alleges that cocaine is not a narcotic in the pharmacological sense and that it does not have the known properties and effects of a narcotic drug and that Congress' failure to so classify cocaine within Section 841(b)(1)(B) resulted in a violation of defendant's right to due process because there exists no actual rationale underlying the present penalty classification and that the more severe penalty for cocaine in relation to other drugs violates the guarantees of equal protection and freedom from cruel and unusual punishment. Based on the above contentions defendant has moved for the dismissal of the indictment filed in the present case.

Although defendant's contentions in this case are not to be lightly taken, the First Circuit has already ruled authoritatively on the matter and we are bound to follow the same.

In United States v. Foss, 501 F.2d 522 (1 CA, 1974) the Court faced the same arguments raised by defendant herein, albeit in the context of a revision of the sentences imposed in that case. The First Circuit Court of Appeals in affirming the imposed sentences faced the misclassification argument and held:

". . . Cocaine was made a Schedule II controlled substance by Act of Congress. Title 21, United States Code, Section 812(c) II (a)(4). It may be removed but only by administrative procedures spelled out in the legislation. Title 21, United States Code, Section 811(a)(2). The criminalization of cocaine reflects a societal policy binding upon the courts; the district court was neither bound nor authorized to delve into the policies underlying the drug laws except as might be appropriate to exercise fairly its individual sentencing discretion." Id at 530.

Subsequent to Foss, supra, two other district courts within the First Circuit have considered the same arguments and ruled contrary to defendant's contentions. In United States v. Hobbs, 392 F.Supp. 444 (1975) the Honorable Judge Tauro of the United States District Court for the District of Massachusetts held the following:

"4 The Government does not challenge the initial premise of defendants' argument—that cocaine is a stimulant not a narcotic. `The issue then . . . is whether Congress can rationally classify cocaine, a non-narcotic central nervous stimulant, as a narcotic for penalty and regulatory purposes.' United States v. Brookins D.C., 383 F.Supp. 1212 at 1214. Whether couched in due process or in equal protection terms, the appropriate standard of review for this challenge, is the minimum rationality test articulated in United States v. Carolene Products Co., 304 U.S. 144, 153, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938). `Whether any state of facts either known or which could reasonably be assumed affords support for (the classification).' See McGinnis v. Royster, 410 U.S. 263, 270, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1974). Defendants' argument that a higher standard of review is required because their liberty is at stake is without merit. Even if classified as a non-narcotic they would still be subject to loss of liberty. Since penal classification are tested under the rational basis test, the argument must be rejected. United States v. Brookins, 383 F.Supp. at 1216.

In classifying cocaine as a narcotic drug, Title 21, United States Code, Section 802(16), Congress was not required to accept the pharmacological definition of a narcotic. Thus, the numerous affidavits submitted by defendants' experts are of limited relevance since they tend to establish only that cocaine is not a narcotic in pharmacological classifications. The sole question presented is whether there is some rational basis for the statutory classification of cocaine as a narcotic. In United States v. Brookins, the court pointed out that there was some evidence that Congress was aware of the discrepancy between the legal and pharmacological classifications of cocaine at the time of the hearings immediately preceding the 1970 Act, but retained the `narcotic' classification of cocaine for control and penalty purposes because of `its established capacity as a dangerous drug, (and) its long association with heroin in the illicit market.' 383 F.Supp. at 1216.

There are any number of rational bases which can be assumed under the Carolene test in upholding the congressional classification of cocaine as a narcotic for penalty purposes. Congr

...