United States v. Bergdoll

• Decision Date: 10 March 1976
• Docket Number: Cr. A. No. 75-164—75-166.
• Citation: 412 F. Supp. 1308
• Parties: UNITED STATES of America, Plaintiff, v. William BERGDOLL et al., Defendants. UNITED STATES of America, Plaintiff, v. John J. BURRELL et al., Defendants. UNITED STATES of America, Plaintiff, v. John J. BURRELL et al., Defendants.
• Court: U.S. District Court — District of Delaware

412 F. Supp. 1308

UNITED STATES of America, Plaintiff, v. William BERGDOLL et al., Defendants.

UNITED STATES of America, Plaintiff, v. John J. BURRELL et al., Defendants.

UNITED STATES of America, Plaintiff, v. John J. BURRELL et al., Defendants.

Cr. A. Nos. 75-164—75-166.

United States District Court, D. Delaware.

March 10, 1976.

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W. Laird Stabler, Jr., U. S. Atty., and John H. McDonald, Asst. U. S. Atty., Wilmington, Del., for plaintiff in Cr. A. Nos. 75-164, 75-165 and 75-166.

Harold Schmittinger and I. Barry Guerke, of Schmittinger & Rodriguez, Dover, Del., and Martin G. Weinberg, of Oteri & Weinberg, Boston, Mass., for defendants Burrell and Rote in Cr. A. No. 75-165 and for defendants Burrell, Rote, Moss, Crook, Haseltine, Wagoner, Freund, Topp, Smith, Lockhard, Donahue, Garner and Dombroski in Cr. A. No. 75-166.

Carl Schnee and David E. Brand, of Schnee & Castle, Wilmington, Del., and James R. Yon, Tampa, Fla., for defendants Bergdoll, Cartledge, Fleet and Peterson in Cr. A. No. 75-164 and for defendants Byerly, John Gilkes, Thomas H. Gilkes, Healy and Osgood in Cr. A. No. 75-165.

Michael L. Pritzker and David P. Schneider, of Pritzker & Glass, Ltd., Chicago, Ill., for defendants Joseph Tevebaugh, Patrick Tevebaugh, Tilton and Maxwell in Cr. A. No. 75-166.

OPINION

LATCHUM, Chief Judge.

The defendants in these three cases were arrested on July 1, 1975 in and around Dover, Delaware by various federal, state and local law enforcement agents and held on state charges arising out of an alleged scheme to import illegally and to distribute a large amount of marihuana. One week later on July 8, 1975 a grand jury of this district returned indictments against twenty-four of the twenty-six defendants named in these three cases. (Cr. A. Nos. 75-95 through 75-104). Thereafter, on November 6, 1975 the grand jury returned indictments against the original twenty-four defendants and two additional defendants. The new indictment in Criminal Action No. 75-164 (the "164 indictment") charged the defendants with (1) possession of marihuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), or (2) violation of the Travel Act, 18 U.S.C. § 1952, for the purpose of possessing with the intent to distribute marihuana, or (3) conspiracy to possess with intent to distribute marihuana contrary to 21 U.S.C. § 841(a)(1) in violation of 21 U.S.C. § 846, or some combination thereof. The defendants in Criminal Action No. 75-165 (the "165 indictment") were accused in some combination of (1) conspiracy in violation of 21 U.S.C. §§ 846 and 963 to import and distribute marihuana contrary to 21 U.S.C. §§ 841(a)(1), 952, 955, 957, 958, and 960, (2) importing marihuana, contrary to 21 U.S.C. § 952(a), in violation of 21 U.S.C. § 960(a)(1), (3) transferring marihuana from a vessel without prior approval of the Attorney General contrary to 21 U.S.C. § 954 and in violation of 21 U.S.C. § 960(a)(1), or (4) possessing marihuana on board a vessel arriving in the United States without its having been entered on a manifest, contrary to 21 U.S.C. § 955, and in violation of 21 U.S.C. § 960(a)(2). The defendants in Criminal Action No. 75-166 (the "166 indictment") were charged with (1) the possession of marihuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1), or (2) the violation of the Travel Act, 18 U.S.C. § 1952, for the purpose of possessing marihuana with the intent to distribute, or (3) engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848, or (4) conspiracy to distribute or possess with intent to distribute marihuana contrary to 21 U.S.C. § 841(a)(1), in violation of 21 U.S.C. § 846, or some combination thereof.

The defendants have filed extensive motions to dismiss,¹ and the Court now turns to consider the issues raised by these motions.²

I. Drug Control Act

Defendants contest the constitutionality of several provisions of the Comprehensive Drug Abuse Prevention and Control Act of 1970 ("Drug Control Act"), 21 U.S.C. § 801 et seq., to the extent it seeks to regulate conduct involving marihuana.³ They contend that the methods selected by Congress for controlling the importation, possession, and sale of marihuana are arbitrary and irrational, constitute an abuse of the police power and a denial of due process, and represent an unwarranted invasion of privacy in contravention of the Fourth, Fifth and Ninth Amendments. Also, defendants claim to have suffered invidious and irrational discrimination as a consequence of Congressional disregard for the equal protection concepts embodied in the Due Process Clause of the Fifth Amendment. They complain that, first, the Drug Control Act fails to recognize the distinctions between marihuana and the so-called hard drugs which are also listed on Schedule I(c), 21 U.S.C. § 812(c), and, second, Congress without a rational basis decided to punish individuals involved with marihuana without punishing individuals involved with what are perceived as substantially more harmful substances such as alcoholic beverages and tobacco. Finally the defendants invoke the Eighth Amendment and contend that the punishment prescribed for marihuana offenses amounts to cruel and unusual punishment.

The Drug Control Act as it applies to marihuana has withstood diverse constitutional attacks. United States v. Horsley, 519 F.2d 1264 (C.A.5, 1975); United States v. Kiffer, 477 F.2d 349 (C.A.2, 1973), cert. denied, 414 U.S. 831, 94 S.Ct. 62, 38 L.Ed.2d 65 (1973); United States v. Rodriquez-Camacho, 468 F.2d 1220 (C.A.9, 1972), cert. denied, 410 U.S. 985, 93 S.Ct. 1512, 36 L.Ed.2d 182 (1973). Because there is no colorable claim of a fundamental constitutional right to import or to distribute marihuana, United States v. Kiffer, supra, 477 F.2d at 352, the statutory scheme will be upheld unless it either has no rational relationship to a proper legislative purpose, Marshall v. United States, 414 U.S. 417, 427, 94 S.Ct. 700, 706, 38 L.Ed.2d 618, 626 (1974); Williamson v. Lee Optical Co., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563, 572 (1955), or violates a narrow and specific constitutional provision because of the manner in which it is implemented, e. g., if punishment mandated by the statute were inconsistent with the Eighth Amendment.

When it determined that marihuana should be classified as a Schedule I(c) controlled substance, 21 U.S.C. § 812(c), Congress was keenly aware that "the extent to which marihuana should be controlled is a subject upon which opinions diverge widely." 1970 U.S.Code Cong. & Admin.News, p. 4577. It is, however, obvious that Congress had a rational basis for classifying marihuana as a Schedule I controlled substance. United States v. Rodriquez-Camacho, supra, 468 F.2d at 1222; United States v. LaFroscia, 354 F.Supp. 1338, 1341 (S.D.N.Y.1973), aff'd, 485 F.2d 457 (C.A.2, 1973). Furthermore, it should be emphasized that defendants are not charged with mere possession of marihuana destined for personal consumption; instead, it is alleged that they participated in a massive effort to import and distribute marihuana. Thus, defendants' contentions addressed to individual freedom and privacy also are misplaced. Cf. United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971).

In addition, defendants' arguments based on equal protection considerations also lack merit. First, the Congressional decision to prohibit use of marihuana while allowing consumption of alcohol and tobacco does not deprive defendants of any constitutional rights because, "if Congress decides to regulate or prohibit some harmful substances, it is not thereby constitutionally compelled to regulate or prohibit all." United States v. Kiffer, supra, 477 F.2d at 355. Second, inclusion of marihuana with the so-called hard drugs on Schedule I cannot be considered irrational, id. at 356-57, and in light of the very limited constitutional interests asserted by defendants, it is clear that they have not been denied equal protection of law.

Similarly, the contention that the sanctions imposed by the Drug Control Act on individuals convicted of marihuana offenses constitute cruel and unusual punishment within the scope of the Eighth Amendment must be rejected.⁴ United States v. Lozaw, 427 F.2d 911, 917 (C.A.2, 1970) (applying predecessor section).

In conclusion, defendants' broadside assault on the Drug Control Act as it relates to marihuana has not convinced the Court of any constitutional defects in the statutory plan.

II. Travel Act

Twenty-one of the defendants have been charged with violating 18 U.S.C. § 1952⁵ (the "Travel Act") by traveling in interstate commerce "with intent to promote, manage, or carry on, or to facilitate the promotion, management or carrying on of an unlawful activity, that is, the distribution or possession of marihuana with intent' to distribute same." These defendants assert that the Travel Act is unconstitutional for a variety of reasons,⁶ but these contentions are without merit because the Travel Act is not (1) void for vagueness, United States v. Cerone, 452 F.2d 274, 286 (C.A.7, 1971), cert. denied, 405 U.S. 964, 92 S.Ct. 1168, 31 L.Ed.2d 240 (1972); United States v. Cozzetti, 441 F.2d 344, 348 (C.A.9, 1971); Gilstrap v. United States, 389 F.2d 6, 8 (C.A.5, 1968), cert. denied, 391 U.S. 913, 88 S.Ct. 1806, 20 L.Ed.2d 652 (1968); United States v. Barrow, 363 F.2d 62, 65 (C.A.3, 1966), cert. denied, 385 U.S. 1001, 87 S.Ct. 703, 17 L.Ed.2d 541 (1967); Bass v. United States, 324 F.2d 168, 173 (C.A.8, 1963); (2) beyond the power conferred on Congress by the Commerce Clause, Art. I, § 8, cl. 3, or violative of the Tenth Amendment, Gilstrap v. United States, supra, 389 F.2d at 8; United States v. Barrow, supra, 363 F.2d at 65; Marshall v. United States, 355 F.2d 999, 1004 (C.A.9, 1966), cert. denied, 385 U.S. 815, 87 S.Ct. 34, 17 L.Ed.2d 54, reh. denied, 385 U.S. 964, 87 S.Ct. 388, 17...