United States v. Chapman, Crim. No. 174-70-A.

• Decision Date: 18 January 1971
• Docket Number: Crim. No. 174-70-A.
• Citation: 321 F. Supp. 767
• Parties: UNITED STATES of America v. Richard Earl CHAPMAN, aka Dean Gardner.
• Court: U.S. District Court — Eastern District of Virginia

321 F. Supp. 767

UNITED STATES of America v. Richard Earl CHAPMAN, aka Dean Gardner.

Crim. No. 174-70-A.

United States District Court, E. D. Virginia, Alexandria Division.

January 18, 1971.

Justin Williams, Asst. U. S. Atty., Alexandria, Va., for plaintiff.

Paul G. Varoutsos, North Arlington, Va., James M. Shellow, Milwaukee, Wis., for defendant.

MEMORANDUM

WALTER E. HOFFMAN, Chief Judge.

On June 9, 1970, the defendant was arrested by U.S. Park Police at the Washington National Airport and was charged and prosecuted in federal court for illegal posseession of marihuana in violation of the Code of Virginia, sections 54-488 and 54-516, under the Assimilative Crimes Act, 18 U.S.C., section 13. At his trial, the defendant moved to dismiss contending that Congress has enacted laws which prohibit his alleged crime and, therefore, he should not have been prosecuted under the Virginia statute but rather under the applicable federal law. The Government, on the other hand, contended that no federal law has been enacted covering the crime under which the defendant was charged and thus he was properly prosecuted under the Virginia statute by virtue of the Assimilative Crimes Act. Although the defendant's motion to dismiss was overruled and he subsequently entered a plea of guilty, the court allowed the defendant's counsel to submit a brief in support of his motion which might dissuade the court from its earlier ruling. After due consideration, we again find the defendant's argument without merit and adhere to the former ruling.

The issue presented and ably argued by defendant's counsel is whether one who is found in possession of marihuana at the Washington National Airport can be prosecuted in the federal court under the Code of Virginia, section 54-488, by virtue of the Assimilative Crimes Act, 18 U.S.C., section 13, for unlawful possession of a narcotic drug.

The Code of Virginia, section 54-488 states:

"It shall be unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drug, except as authorized in this article."

"Narcotic drugs" are defined by the Code of Virginia, section 54-487(14) as "coca leaves and opium, cannabis and isonipecaine and every substance not chemically distinguishable from them." "Cannabis" is further defined in section 54-487(19) as "all parts of the plant Cannabis Sativa L.," including the seeds, resin, and other derivatives of the plant but not including the mature stalks or derivatives thereof. In other words, cannabis is a synonym for marihuana as they both mean and include the flowering tops of the hemp plant.

The Assimilative Crimes Act, 18 U. S.C., section 13, states in part:

"Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State * * * in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment." (Emphasis added.)

It may be noted that 18 U.S.C., section 7(3) demonstrates that the Washington National Airport is one of the areas within the scope of the Assimilative Crimes Act.

A study of the applicable statutes cited above brings our issue into focus. Simply stated, if Congress has enacted a statute which prohibits possession of marihuana, a person charged with such a crime committed at Washington National Airport must be prosecuted under the federal law and not under a similar state law. If, however, Congress has not enacted such a law, the person charged with possession of marihuana at Washington National Airport may be prosecuted under the applicable Virginia statute.

In contending that Congress has enacted laws prohibiting the possession of marihuana, the defendant has cited 26 U.S.C., section 4744, et seq., and 21 U. S.C., section 176a. An analysis of these two statutes will reveal, however, that possession of marihuana is nowhere specifically prohibited.

Title 26, U.S.C., section 4744, provides in part:

"It shall be unlawful for any person who is a transferee required to pay the transfer tax imposed by section 4741(a)—

(1) to acquire or otherwise obtain any marihuana without having paid such tax, or

(2) to transport or conceal, or in any manner facilitate the transportation or concealment of, any marihuana so acquired or obtained." (Emphasis added.)

The statute then goes on to establish the following presumption:

"Proof that any person shall have had in his possession any marihuana and shall have failed * * * to produce the order form * * * shall be presumptive evidence of guilt under this subsection * * *."

It may be noticed that although the word "possession" does not appear in the prohibitory part of the statute, it is included in the presumption. It must first be emphasized, however, that this is a tax statute and the crime is not for possession of marihuana, but rather the acquisition, transportation, or concealment of untaxed marihuana. Secondly, the presumption enacted to facilitate prosecution under the statute does not make it unlawful to possess even untaxed marihuana but merely presumptive evidence of guilt of obtaining, transporting, or concealing untaxed marihuana where the order form, which must accompany the marihuana, cannot also be produced.

The second federal statute which the defendant contends could have been used by the Government against him is 21 U.S.C., section 176a. Generally, that law proscribes smuggling marihuana into the United States. In order to constitute smuggling, the contraband must be illegally brought into the United States. No evidence was presented that the marihuana in this case was ever outside the United States, or was otherwise "smuggled" therein. To the contrary, the only evidence presented shows that the marihuana in question was shipped from California aboard American Airlines to Washington National Airport. Thus, it is clear that the defendant could not in fact have been prosecuted for smuggling the marihuana under 21 U.S.C., section 176a. It may be noted in passing that, as under 26 U.S.C. section 4744, 21 U. S.C., section 176a, includes a presumption to facilitate the prosecution which mentions the word "possession." In addition to the fact that the statute is a smuggling statute under which the defendant could not have been prosecuted on these facts, the short answer to any contention that the defendant would make relating to the word "possession" appearing in the presumption is that this presumption was declared unconstitutional and invalid in ...