US v. Restrepo, Crim. A. No. 86-391-MA.
| Decision Date | 03 April 1987 |
| Docket Number | Crim. A. No. 86-391-MA. |
| Citation | 676 F. Supp. 368 |
| Parties | UNITED STATES of America v. Diego RESTREPO, et al. |
| Court | U.S. District Court — District of Massachusetts |
COPYRIGHT MATERIAL OMITTED
Roxana Marchosky, Robert J. Wheeler Jr., Boston, Mass., for Maria Marquez.
John C. McBride, Boston, Mass., for Jorge Restrepo.
Susan Crockin, Federal Defender's Office, Boston, Mass., for Hector Isaza.
Ignatius R. Piscitello, Lawrence, Mass., for Diego Restrepo.
Jonathan Chiel, William Kettlewell, U.S. Attys., for U.S.
Eleven persons have been indicted and charged with, among other things, violations of 21 U.S.C. § 841, as amended by the Anti-Drug Abuse Act of 1986 ("Act"). The charges include conspiracy and possession with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of cocaine, in violation of 21 U.S.C. § 841(a). The penalties for such violations are provided by 21 U.S.C. § 841(b)(1), as amended by the 1986 Act.
Four of the defendants, Jorge Restrepo, Maria Marquez, Diego Restrepo, and Hector Isaza, have now moved to dismiss all or some of the counts of the indictment on the ground that the Act's penalty clause is unconstitutional. Although Isaza is named in five of the thirteen counts, he moves to dismiss only two counts (one and nine), which are fashioned to trigger the allegedly unconstitutional penalty scheme of Section 841(b)(1) involving quantities of cocaine of at least 500 grams.1 In contrast, the joint motion filed by Jorge and Diego Restrepo and Marquez does not specify if it seeks the dismissal of only some or all of the counts against them. As the joint motion addresses only the constitutionality of the sentencing provisions of Section 841(b)(1), I will consider their joint motion as pertaining to only those counts which could trigger the challenged sentencing provisions (counts one and five).
Another defendant, Charles Yarid, moves to dismiss on an entirely separate constitutional ground. He claims that count one of the indictment violates the prohibition against ex post facto laws, and asks for dismissal of the relevant portion of that count.
The Anti-Drug Abuse Act of 1986, Pub.L. No. 99-570, was signed by President Reagan on October 27, 1986. Subtitle A of the Act, entitled the Narcotics Penalties and Enforcement Act of 1986, is at the heart of the defendants' challenge to the indictment. Section 1002 of that subtitle amends 21 U.S.C. § 841(b) by creating substantial penalties for violations of 21 U.S.C. § 841(a).
21 U.S.C. § 841(b)(1)(B).2
The defendants challenge the constitutionality of this penalty scheme on several grounds. They claim that it violates the due process and equal protection principles of the fifth amendment because the penalty provisions are inconsistent and focus on the quantity, rather than the purity, of the substance involved. Defendant Isaza also attacks the validity of the statute on eighth amendment grounds, charging that the minimum mandatory penalties violate the cruel and unusual punishment prohibition. Defendant Yarid claims that the portion of the indictment fashioned to trigger the penalty provisions violates the prohibition against ex post facto laws. I consider each of these challenges separately.
Brief for Defendant Isaza at 3. The three defendants presenting the joint motion to dismiss also press that argument and further assert that the statute's ambiguity will lead to the imposition of penalties in an arbitrary and capricious manner. They urge the Court to find the statute's penalty provisions unconstitutionally vague and overbroad.
The government concedes in its memorandum in opposition to the motions to dismiss that the statute possibly "contains a minor error in syntax." However, it asserts that the disputed language is "simply one instance of inartful drafting in a very long, and complex, piece of legislation." Government's Brief at 2, 3. It claims that the abundant statutory language and legislative history leave no doubt that those convicted under Section 841(a) face mandatory prison terms, so there is no irreconcilable conflict within the statute.
Because these provisions were enacted so recently, and I have not discovered any cases construing the constitutionality of the amendments, the defendants' challenges require a detailed analysis.
A criminal statute does not satisfy due process notice requirements if it "fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden." United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 2203, 60 L.Ed. 2d 755 (1979) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954)). In a similar fashion, "vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute." Batchelder, 442 U.S. at 123, 99 S.Ct. at 2204.
A criminal statute is to be strictly construed against the government, see United States v. Bass, 404 U.S. 336, 347-48, 92 S.Ct. 515, 522-23, 30 L.Ed.2d 488 (1971), and I am to apply the "rule of lenity" where there is statutory ambiguity. Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980). However, I must not construe the criminal statute so strictly as to defeat the obvious intention of the legislature. Barrett v. United States, 423 U.S. 212, 218, 96 S.Ct. 498, 502, 46 L.Ed.2d 450 (1976). Nor may I manufacture ambiguity to invoke the rule of lenity so as to defeat that intent. Bifulco, 447 U.S. at 387, 100 S.Ct. at 2252. In interpreting the penalty section of a federal criminal statute, I may discern Congress' intent by looking to the language and structure, legislative history, and motivating policies of the statute in question. Id. I now undertake that examination to determine whether the language of the statute is hopelessly inconsistent and void or merely inartfully drafted and clear enough to pass constitutional muster.
In seeking to construe this statute, I keep in mind the basic axiom that "courts should construe all legislative enactments to give them some meaning," rather than to render them ineffective. United States v. Lamp, 606 F.Supp. 193, 196 (W.D.Tex. 1985) (quoting Rosado v. Wyman, 397 U.S. 397, 415, 90 S.Ct. 1207, 1219, 25 L.Ed.2d 442 (1970)). As Mr. Chief Justice Marshall noted:
It is undoubtedly a well-established principle in the exposition of statutes, that every part is to be considered, and the intention of the legislature to be extracted from the whole. It is also true, that where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain....
United States v. Fisher, 6 U.S. (2 Cranch) 358, 386, 2 L.Ed. 304 (1805), quoted in United States v. Lamp, 606 F.Supp. at 198 (emphasis added). Yet I am also mindful that where there is true inconsistency among the tentative possibilities put forward, and there is no greater consistency with the section's wording implicit in one of the interpretations, then the statute is void for vagueness. See United States v. Evans, 333 U.S. 483, 495, 68 S.Ct. 634, 640, 92 L.Ed. 823 (1948).
The language in Section 841(b)(1)(B) which imposes a sentence of "a term of imprisonment ... a fine ... or both" does indeed imply that a court could consider a prison term or a fine to be alternatives. The defendants claim that the language found at the end of that subparagraph is fundamentally inconsistent with the description of possible sentences:
Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person sentenced under this subparagraph. No person sentenced under this subparagraph shall be eligible for parole during the term of imprisonment imposed therein.
Read fairly, this language indicates that Congress intended that every person sentenced under this subparagraph would have to serve a mandatory prison term. The suggestion thus arises that the words "or both" have a meaning different from that which would have been ascribed to them had the sentence in which they appear stood alone. The words "such person shall be sentenced to a term of imprisonment ......
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