State v. Dunn

• Decision Date: 06 September 1990
• Docket Number: No. 2,CA-CR,2
• Citation: 166 Ariz. 506,803 P.2d 917
• Parties: The STATE of Arizona, Appellee, v. Gerald Dean DUNN, Appellant. 89-0646.
• Court: Arizona Court of Appeals

Page 917

803 P.2d 917

166 Ariz. 506

The STATE of Arizona, Appellee, v. Gerald Dean DUNN, Appellant.

No. 2 CA-CR 89-0646.

Court of Appeals of Arizona,

Division 2, Department A.

Sept. 6, 1990.

As Corrected Sept. 13 and Sept. 28, 1990.

Reconsideration Denied Oct. 16, 1990.

Review Denied Feb. 5, 1991.

[166 Ariz. 507] Robert K. Corbin, Atty. Gen. by Jessica Gifford Funkhouser and Crane McClennen, Phoenix, for appellee.

Robert Arentz, Cochise County Public Defender by James L. Conlogue, Bisbee, for appellant.

OPINION

ROLL, Presiding Judge.

Gerald Dean Dunn appeals from his conviction for importation of cocaine, arguing that A.R.S. § 13-3408(A)(7) is unconstitutional because it impinges upon the federal government's exclusive domain of regulating foreign commerce. For the reasons set forth below, we find the statute constitutional and affirm.

FACTS

Viewing the evidence in the light most favorable to the state, State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989), the evidence at trial established that on June 21, 1989, Dunn took cocaine into Mexico and then re-entered Arizona with the cocaine. Upon re-entry into the United States, he was detained at a border inspection station, where it was discovered that he possessed 1.8 grams of cocaine.

PROCEDURAL BACKGROUND

The United States Attorney's Office declined prosecution and the state initiated prosecution of Dunn for importing cocaine, transporting cocaine for sale, and selling, transferring, or offering to sell or transfer a narcotic drug. When the matter was submitted to the grand jury, the grand jury struck from the indictment the terms "transport for sale," "offer to transport for sale," and "sold, transferred, and offered to sell a narcotic drug." The remaining charge was importing or offering to import cocaine. A jury found Dunn guilty and he was sentenced to 5.25 years' imprisonment.

ISSUES ON APPEAL

On appeal, Dunn argues that the Arizona statute prohibiting importation of cocaine violates the United States Constitution. He argues that (1) Article 1, Sec. 8, cl. 3 of the United States Constitution gives the federal government exclusive and plenary power over foreign commerce and any attempt by a state to regulate foreign commerce is unconstitutional; and (2) because the Arizona statute punishes importation more severely than its federal counterpart, an impermissible conflict exists.

DISCUSSION

The issues presented require that we rule upon whether the commerce clause of the United States Constitution precludes the State of Arizona from outlawing the importation of drugs.

Commerce Clause

The Constitution states that Congress shall "regulate commerce with foreign nations...." Art. I, § 8, cl. 3. The purpose of this clause is to prohibit states from impeding federal uniformity in an area where federal uniformity is essential. Japan Line, Ltd. v. County of Los Angeles, 441 U.S. 434, 448, 99 S.Ct. 1813, 1821, 60 L.Ed.2d 336, 347 (1979).

Congress has plenary power to prohibit the importation of narcotics. See, e.g., Brolan v. United States, 236 U.S. 216, 35 S.Ct. 285, 59 L.Ed. 544 (1915); Daut v. United States, 405 F.2d 312 (9th Cir.1968), cert. denied, 402 U.S. 945, 91 S.Ct. 1624, 29 L.Ed.2d 114 (1971). This power originates from Congress's authority to regulate commerce with foreign nations. U.S. Const., art. I, § 8, cl. 3; Buttfield v. Stranahan, 192 U.S. 470, 492, 24 S.Ct. 349, 354, 48 L.Ed. 525 (1904); United States v. LaFroscia, 354 F.Supp. 1338, 1340 (S.D.N.Y.1973). In Board of Trustees v. United States, 289 U.S. 48, 56, 53 S.Ct. 509, 509, 77 L.Ed. 1025, 1028 (1933), the Supreme Court stated that this clause comprehends "every species of commercial intercourse between the United States and foreign nations." The Court further stated that the federal government's power to regulate foreign commerce is "exclusive and plenary." Id. The exercise of this power may not be limited, qualified, or impeded to any extent by state action. Id. at 56-57, 53 S.Ct. at 509, 77 L.Ed. at 1028; Williams v. Finley, 71 Ariz. 27, 30, 222 P.2d 997, 999 (1950).

A.R.S. § 13-3408(A)(7), prohibiting the importation of narcotics, is contained in Title 13, Chapter 34 of the Arizona Criminal Code. Obviously, this chapter is designed to promote the health and welfare of Arizona inhabitants. In Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 442, 80 S.Ct. 813, 815, 4 L.Ed.2d 852, 855 (1960), the Supreme Court recognized a municipality's right to exercise its police power by adopting a code prohibiting vessels from emitting excessive pollutants, even though the code placed an additional burden upon interstate commerce.

State regulation of interstate commerce is permissible if it is even-handed, effectuates a legitimate public interest, and is not pre-empted by federal action. Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 847, 25 L.Ed.2d 174, 178 (1970); Huron, 362 U.S. at 443, 80 S.Ct. at 815, 4 L.Ed.2d at 856. In Huron, the Supreme Court stated:

[T]he Constitution when "conferring upon Congress the regulation of com merce,, ... never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons engaged in it without constituting a regulation of it, within the meaning of the Constitution."

362 U.S. at 443-44, 80 S.Ct. at 816, 4 L.Ed.2d at 856, quoting Sherlock v. Alling, 93 U.S. 99, 103, 23 L.Ed. 819, 820 (1876).

The commerce clause analysis of interstate commerce differs from analysis of permissible regulation of foreign commerce. When state regulation of foreign commerce is presented, a more extensive constitutional inquiry is required. Japan Line, Ltd., supra, 441 U.S. at 446, 99 S.Ct. at 1820, 60 L.Ed.2d at 346.

State Regulation of Foreign Commerce

Undeniably, Congress's power to regulate foreign commerce is unchecked by considerations of federalism and state sovereignty, Id. at 448-49 n. 13, 99 S.Ct. at 1821-22 n. 13, 60 L.Ed.2d at 348 n. 13, and foreign commerce is a matter of national concern requiring uniformity. Id. at 448-49, 99 S.Ct. at 1821-22, 60 L.Ed.2d at 348. From these principles, Dunn argues that any attempted state regulation of foreign commerce is unconstitutional. It is clear, however, that not every such attempt is forbidden by the Constitution. L.H. Tribe, American Constitutional Law § 6-21 (2d ed. 1988); Japan Line, Ltd., supra, 441 U.S. at 446, 99 S.Ct. at 1820, 60 L.Ed.2d at 346. ¹ While state imposition of duties and the placement of other burdens on foreign commerce have generally been declared impermissible, decisions in this area are of limited application. The Arizona statute prohibiting the importation of drugs into Arizona differs in kind and purpose from regulations adopted by other states merely designed to thwart competition or raise revenue. Rather, the Arizona statute is directly related to the exercise of police power aimed at the smuggling of illegal drugs into Arizona. Arizona's importation statute is even-handed--it forbids any importation of illegal drugs. Furthermore, as is discussed below, it is designed to effectuate a legitimate public interest.

Pre-Emption by Federal Regulation

Dunn argues that federal legislation pre-empts the field of regulation.

Before pre-emption occurs, Congress's intent to supersede the exercise of the state's police power must be clearly manifested. Kelly v. Washington, 302 U.S. 1, 12, 58 S.Ct. 87, 92, 82 L.Ed. 3, 11-12 (1937). In Louisiana Public Serv. Comm'n v. F.C.C., 476 U.S. 355, 368-69, 106 S.Ct. 1890, 1898, 90 L.Ed.2d 369, 381-82 (1986), the Supreme Court described pre-emption as follows:

Pre-emption occurs when Congress, in enacting a federal statute, expresses a clear intent to pre-empt state law, when there is outright or actual conflict between federal and state law, where compliance with both federal and state law is in effect physically impossible, where there is implicit in federal law a barrier to state regulation, where Congress has legislated comprehensively, thus occupying an entire field of regulation and leaving no room for the States to supplement federal law, or where the state law stands as an obstacle to the accomplishment and execution of the full objectives of Congress. [Citations omitted.]

Japan Line, Ltd., supra, relied upon by Dunn, is inapposite to the matter before us. There, the Supreme Court held that California's taxation of Japanese cargo containers which were merely in transit through the state, were taxed in Japan, and were exempt from import taxes under the Customs Convention on Containers, was unconstitutional. The Court reasoned that the containers could not be taxed on an apportioned basis and the tax would frustrate the achievement of federal uniformity. 441 U.S. at 447-50, 99 S.Ct. at 1821-22, 60 L.Ed.2d at 347-49. ² Here, no taxation issues are presented and, as is discussed below, the Arizona statute does not frustrate the achievement of federal uniformity in the regulation of drug importation.

Title 21, Chapter 13, subchapter I of the Comprehensive Drug Control Act, encompasses control and enforcement of drug abuse. 21 U.S.C. § 903 states:

No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.

The dissent correctly points out that the importation provisions of the Code, however, appear in subchapter II at 21 U.S.C. §§ 951-966. ³ On the other hand, subchapter II contains no recitation that Congress intended...