United States v. Collier, 47977.

• Decision Date: 26 April 1973
• Docket Number: No. 47977.,47977.
• Citation: 358 F. Supp. 1351
• Parties: UNITED STATES of America, Plaintiff, v. Leroy Frank COLLIER et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

358 F. Supp. 1351

UNITED STATES of America, Plaintiff, v. Leroy Frank COLLIER et al., Defendants.

No. 47977.

United States District Court, E. D. Michigan, S. D.

April 26, 1973.

Robert P. Hurlbert, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

Neil H. Fink, S. Allen Early, Jr., Detroit, Mich., for defendants.

MEMORANDUM OPINION

RALPH M. FREEMAN, District Judge.

Defendant Leroy Frank Collier seeks in this motion to quash Count II of the Indictment which charges defendant with violating 21 U.S.C. § 848, the continuing criminal enterprise section of the Comprehensive Drug Abuse, Prevention and Control Act. Under § 848 it is unlawful for any person to engage in a continuing criminal enterprise. Subsection (b) of this statute defines continuing criminal enterprise as follows:

"A person is engaged in a continuing criminal enterprise if —

(1) he violates any provision of this subchapter or subchapter II of this chapter the punishment for which is a felony, and

(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter —

(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(B) from which such person obtains substantial income or resources." (emphasis added)

Defendant claims that the terms "continuing series" and "substantial income" italicized above are so vague that they fail to warn an individual of the criminal consequences of his conduct and thus deprive him of due process of law. Count II of the Indictment incorporates Counts I and III of the Indictment and charges in the language of the statute that the violations listed in Counts I and III are a part of "a continuing series of violations of subchapters I and II . . ." In addition Count II charges that defendant obtained substantial income from said continuing series of violations.

Count I charges defendant with violating 21 U.S.C. § 963. That section provides

"Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy."

Allegedly the defendants in this case conspired to violate sections 952(a) and 960 which provide that it is illegal to import controlled substances into the customs territory of the United States or into the United States.

Count III alleges that defendant Leroy Collier, on or about May 31, 1972, did knowingly and intentionally unlawfully possess with intent to distribute approximately eight kilograms of cocaine in violation of §§ 841(a) and 841(b)(1)(A).

The parties disagree as to the parameters of this Court's examination of the statute. Defendant contends that the Court must view the statute on its face, while the Government maintains that we must view the statute in light of evidence presented on the Government's case. In other words the Government views the motion as being premature. We do not agree with either of the positions presented for the reasons set forth below.

As discussed in the briefs submitted by the parties, a criminal statute must adequately warn an individual of the criminal consequences of his conduct. Jordan v. De George, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886 (1951). However, not every ambiguity in a statute renders it unconstitutional. Thus the mere fact that the exact parameters of the statute are unclear does not prevent proper application of the statute to conduct clearly within the bounds of the statute. Thus, in United States v. National Dairy Products Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 597, 9 L.Ed.2d 561 (1963) the Court said:

The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language . . . In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged.

In that case the defendants were charged with violating § 3 of the Robinson-Patman Act which prohibits sale of goods at "unreasonably low prices" for the purpose of destroying competition. The indictment charged the defendants specifically with selling "below cost". The court said that in light of the principles set forth heretofore if § 3 gave defendants "sufficient warning that selling below cost for the purpose of destroying competition is unlawful, the statute is constitutional as applied to them." (emphasis added) Thus a statute is not always viewed on its face alone. See also United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960).

In United States v. Raines, supra, at p. 22, 80 S.Ct. p. 523 the court reached this same conclusion, stating that a defendant is limited to his own situation in determining constitutionality. The court went on to list, however, the exceptions to that rule as follows:

a) Where the rights of others not before the court would be impaired and where there is no way to preserve these rights;

b) Where the statute inhibits free speech;

c) Where a statute has been declared unconstitutional as to so many situations that it is no longer vital.

None of these situations covers the case at bar. See also Daulton v. United States, 474 F.2d 1248 (6th Cir. 1973).

Thus it is true as defendant points out that in many cases the Supreme Court has viewed statutes on their face. But the cases cited by defendant involved statutes that fell within the exceptions listed in Raines, supra. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); Coates v. City of Cincinnati, 402 U.S. 611, 91 S. Ct. 1686, 29 L.Ed.2d 214 (1971); Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L.Ed.2d 22 (1965); N.A.A. C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963); and Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), cases cited by defendant, were all cases in which the statutes were alleged to infringe on the First Amendment rights of individuals. Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926), another case relied upon by defendant clearly discussed the facts underlying the declaratory judgment action. The statute was viewed in light of the fact situation before the Court. It is true that in Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966), the court viewed a statute on its face which did not involve First Amendment problems. But the statute in question involved the right of the jury on a misdemeanor trial to assess costs against an acquitted defendant. There was no conduct to review. The evidence presented at trial had no bearing on the statute. The only manner in which the statute could ever be reviewed was on its face.

Thus, the court in National Dairy, supra, stated where First Amendment rights are not involved and where the statute is directed only at

"activity which is neither constitutionally protected nor socially desirable. We are thus permitted to consider the warning provided by § 3 not only in terms of the statute `on its face' but also in the light of the conduct to which it is applied."

See also Coates v. City of Cincinnati, supra, at p. 618 of 402 U.S., 91 S.Ct. 1686 (dissent of J. White) and Boyce Motor Lines v. United States, 342 U.S. 337, 343, 72 S.Ct. 329, 96 L.Ed. 367 (1952).

Under these circumstances this Court finds that it may look at the conduct charged in the Indictment and determine whether the language of the statute advised the defendant that this particular conduct violated the statute. We note, however, that we find no authority to look beyond the Indictment to facts which may be proved at trial. The cases we have reviewed talk in terms of conduct charged and not conduct which may be proved on the trial of the case.

In the case of Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 72 S.Ct. 329, 96 L.Ed. 367 (1952) the defendant tried to introduce certain facts not contained in the Indictment in its motion to dismiss the Indictment because of the unconstitutionality of the statute in question. The Supreme Court said at page 343, 72 S.Ct. at 332,

But that is plainly a matter for proof at the trial. We are not so conversant with all the routes in that area that we may, with no facts in the record before us, assume the allegations of the indictment to be false.

In a footnote to this section the court stated

This case is here to review the granting of a motion to dismiss the indictment. It should not be necessary to mention the familiar rule that, at this stage of the case, the allegations of the indictment must be taken as true.

This case seems to make clear that only the Indictment may be viewed by the court in determining the conduct allegedly in violation of the statute. Under these circumstances the statements in the Government's brief of facts that will be shown at trial or which appear in depositions are not properly before the court at this time on this motion.

However, where the Indictment merely sets forth the charge in the language of the statute, the statute can only be viewed on its face. In United States v. Cohen Grocery Company, 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 516 (1921), a case distinguished, but not overruled in National Dairy Products, supra, the court held a statute unconstitutional where the Indictment merely named the price collected and charged in the exact language of the statute that defendant had charged an "unjust or unreasonable rate." The court held that no specific or definite act was proscribed by the statute or alleged in the Indictment. Moreover, the court found no standard which could be impliedly encompassed...