U.S. v. Picklesimer, s. 78-1253

• Decision Date: 02 November 1978
• Docket Number: 78-1287 and 78-1288,Nos. 78-1253,s. 78-1253
• Citation: 585 F.2d 1199
• Parties: UNITED STATES of America, Appellee, v. Eric PICKLESIMER, Appellant. UNITED STATES of America, Appellee, v. Emanuel VOLINO, Appellant. UNITED STATES of America, Appellee, v. Jeffrey BUCKLEY, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1199

585 F.2d 1199

UNITED STATES of America, Appellee, v. Eric PICKLESIMER, Appellant.

UNITED STATES of America, Appellee, v. Emanuel VOLINO, Appellant.

UNITED STATES of America, Appellee, v. Jeffrey BUCKLEY, Appellant.

Nos. 78-1253, 78-1287 and 78-1288.

United States Court of Appeals, Third Circuit.

Argued Sept. 8, 1978.

Decided Nov. 2, 1978.

James J. West, Asst. U. S. Atty., Pittsburgh, Pa., for appellee.

Charles F. Scarlata, Pittsburgh, Pa., for appellant Picklesimer.

Michael D. Berlin, Pittsburgh, Pa., for appellant Volino.

Maury D. Nusbaum, Pittsburgh, Pa., for appellant Buckley.

Before ALDISERT and HIGGINBOTHAM, Circuit Judges, and STERN, District Judge ^*.

OPINION

STERN, District Judge.

Defendants Picklesimer, Volino and Buckley appeal their convictions for conspiracy to possess with intent to distribute phencyclidine (PSP), a drug enumerated in Schedule III of the Controlled Substances Act of 1970, 21 U.S.C. §§ 801 Et seq. (1972), in violation of 21 U.S.C. § 846, and for possession of this same drug with intent to distribute, in violation of 21 U.S.C. § 841. All three defendants urge this Court to construe Schedule III of 21 U.S.C. § 812 to require the government to prove possession of a sufficient quantity of the drug to have a depressant effect upon the central nervous system. For reasons we discuss at greater length, we decline to adopt defendants' construction of the statute as contrary to the clear intention of Congress, and we join the Courts of Appeals for the Fifth and the Seventh Circuits in holding that any quantity of the substances enumerated in Schedule III is proscribed by the statute.

Defendants raise other challenges to their convictions. All three defendants challenge the admission into evidence of testimony that a gun was found in the vehicle which transported the PSP tablets. Defendants Buckley and Volino also claim that the evidence was insufficient to support their conviction for constructive possession of the PSP tablets, and they claim that the district court improperly denied their motions to dismiss the indictment based on the pendency of state firearms charges against them. We find these contentions to be without merit and we affirm defendants' convictions in all respects.

I.

Commencing October 17, 1977, defendants Picklesimer, Volino and Buckley, separately represented and having waived their right to trial by jury, were tried before the Honorable William W. Knox. The facts as they emerged at trial are as follows.

On the evening of January 23, 1977, Officer Edward Williams of the Drug Enforcement Joint Narcotics Task Force was taken by an informant to the home of Eric Picklesimer (Tr. 7-8) where Picklesimer furnished him samples of marijuana and PSP. (Tr. 9-12). The following day, the informant arranged for Williams to purchase from Picklesimer 50,000 tablets of PSP for $25,000. The purchase was scheduled to take place that evening at the parking lot of Traveler's Paradise Bar on Route 30 in Finley Township. (Tr. 12-13).

Surveillance having been pre-arranged, Williams and the informant went to the parking lot as planned. Picklesimer arrived several minutes later in a red Dodge. He entered Williams' vehicle, demanded the money, and told Williams that the "stuff" would arrive shortly in another vehicle. Several minutes later Volino and Buckley drove up in a van. Picklesimer again demanded the money and Williams went to the trunk of his car. (Tr. 15-17).

This was the signal for the surveillance agents. Detective Duffy and Sergeant Miles approached the van on foot. Volino attempted to flee, but Detective Sharpie and Agent Sorace blocked his van with their car. (Tr. 29-30). At this point, Buckley, who was seated on the passenger side of the van, reached toward his feet. When the officers finally entered the van, they discovered a .45 caliber, fully loaded, on the floor where Buckley had been seated; a loaded .38 caliber was found on the floor by Volino's seat. When Buckley was searched, the police found extra clips for his gun in Buckley's shirt pocket. (Tr. 30-38). In the rear of the van, behind the driver's seat, the police found a total of 59,000 tablets of a drug, later identified as PSP. (Tr. 38-39; 52). Defendants were apprehended and arrested.

At the time of their arrest, Buckley and Volino were also charged with possession of firearms and drugs in violation of the laws of Pennsylvania. One week later both of these charges were dismissed. However, Following the federal drug indictment, the state authorities revived the firearms, but not the drug, charges. (Mem. Order Denying Motion to Dismiss). Buckley and Volino moved pre-trial to dismiss the indictment based on the pendency of state firearms charges arising out of the same occurrence. The motion was denied.

Judge Knox found all three defendants guilty on both counts. Volino and Buckley were sentenced concurrently on both counts to three years followed by a special parole term of three years. Picklesimer received concurrent sentences of two years followed by a special parole term of two years.

II.

Defendants raise an interesting interpretation of the Controlled Substances Act of 1970, 21 U.S.C. §§ 801, Et seq. ¹ They claim that the substances enumerated in Schedule III of the Act, 21 U.S.C. § 812, are not proscribed unless they are possessed in sufficient quantity to have a depressant effect on the central nervous system. ² In support of this interpretation, defendants argue that the phrase "having a depressant effect on the central nervous system" modifies the phrase "any quantity":

(b) Unless specifically excepted, or unless listed in another schedule, any material, compound, mixture, or preparation which contains Any quantity of the following substances Having a depressant effect on the central nervous system :

(7) Phencyclidine.

(Emphasis supplied). We find this argument unpersuasive.

Schedule III has been construed by two other Courts of Appeals and one state court has construed identical language in a state statute. In United States v. Nickles, 509 F.2d 810 (5th Cir. 1975), defendant advanced an argument related but not identical to that which defendants advance here: he argued that the government was required to provide that PSP In fact has a depressant effect on the central nervous system. ³ The Fifth Circuit summarily rejected this argument We think the phrasing of the statute clearly evinces a Congressional determination of the actual depressant effect of the specifically listed substances, including phencyclidine.

Id., at 811.

In United States v. White, 560 F.2d 787 (7th Cir. 1977), the argument presented in Nickles was advanced as to amphetamines: the defendants argued that the government must prove that the particular amphetamine found in the defendant's possession in fact has a stimulant effect on the central nervous system. ⁴ The Seventh Circuit rejected this argument, noting that "every substance listed appears generically" and, therefore, that the language in question was not superfluous. Id., at 789. ⁵

Defendants rely on Commonwealth v. Teada, 235 Pa.Super. 438, 344 A.2d 682 (1975), which, over two strong dissents, adopted the precise construction they advance here with respect to a state statute, 35 P.S. § 780-113(a)(30), with language identical to 21 U.S.C. § 812. The court there looked to the state statute as a whole and concluded that "the intent of the legislature is to prohibit possession . . . of compounds containing a quantity of the enumerated substance that is sufficient to be potentially abused by use as a depressant of the central nervous system . . . " Id., at 443-444, 344 A.2d at 684. It reasoned that the substances set forth in the first two schedules were intended to be proscribed in any quantity because of their high potential for abuse, but that "greater proof requirements (are imposed) on the prosecution as the criminal inquiry moves from the most dangerous substances to the least dangerous ones." Id., at 442-443, 344 A.2d at 684. It further reasoned that the phrase "having a depressant effect on the central nervous system" would be superfluous were defendants' interpretation not adopted and it raised the possibility that, it if held otherwise, then "the sale, delivery or possession of many non-prescription drugs such as aspirin, anacin, some cough syrups, etc., could be the subject of criminal prosecution if they contained even minute quantities of some of the substances enumerated in Schedule III . . . ." Id., at 444, 344 A.2d at 685.

We agree with the Courts of Appeals for the Fifth and Seventh Circuits, and we disagree with the Superior Court of Pennsylvania as to the proper interpretation of the language in question. ⁶ We reach this result by examining the statutory purpose and scheme of the Controlled Substances Act and the particular language in question.

The purpose of the Controlled Substances Act of 1970 was to control the illegal manufacture and distribution of substances which, while they may have legitimate medical purposes, are subject to abuse and have a "substantial and detrimental effect on the health and general welfare of the American people." 21 U.S. § 801(2) (Congressional findings and declarations). See also, H.Rep.No. 1444, 91st Cong., 2nd Sess. (1970), Reprinted in 3 U.S.Code & Admin.News, pp. 4601, 4566 (1970). Towards that end, Congress divided the controlled substances into five categories, ranging from Schedule I substances, which have no medical use and are subject to serious abuse, to Schedule V substances, which do have a medical use and are less susceptible of abuse. The Act further gives the Attorney General the right to revise these schedules by deletion, revision or transfer among schedules upon recommendation of the Secretary of Health, Education and Welfare and upon consideration of eight enumerated criteria set forth at 21 U.S.C. § 811. ⁷

Defendants argue that not to adopt their construction would render...