United States v. DiLaura, Crim. A. No. 74-133-M.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Writing for the Court: MURRAY
• Citation: 394 F. Supp. 770
• Parties: UNITED STATES of America, Plaintiff, v. Mark DiLAURA, Defendant.
• Decision Date: 11 December 1974
• Docket Number: Crim. A. No. 74-133-M.

394 F. Supp. 770

UNITED STATES of America, Plaintiff,
v.
Mark DiLAURA, Defendant.

Crim. A. No. 74-133-M.

United States District Court, D. Massachusetts.

December 11, 1974.

394 F. Supp. 771

Charles E. Chase, Asst. U. S. Atty., for plaintiff.

Norman S. Zalkind, Boston, Mass., for defendant.

Memorandum and Order

MURRAY, District Judge.

The defendant DiLaura has moved to dismiss an indictment returned April 18, 1974 charging him in Count I with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and in Count II with possession of cocaine with intent to distribute and the distribution of it in violation of 21 U.S.C. § 841(a)(1). He alleges that Count II is duplicitous; that 21 U.S.C. § 841 penalizes a state of mind

394 F. Supp. 772

in violation of the Fifth Amendment; and that 21 U.S.C. §§ 802, 812 and 841 deny the defendant due process of law and equal protection of the laws because the classification of cocaine in the same category as opium and opiates, and the salts thereof, is arbitrary and irrational, and therefore Counts I and II may not constitutionally be enforced against him. In support of the motion defendant has submitted the affidavits of physicians, and other persons, all of the general tenor that cocaine has been misclassified as a narcotic drug, and an extensive brief of argumentation with an appendix. The Government opposes the motion. Upon consideration of the motion and the affidavits in support thereof, the Government's opposition and the references in its statement of opposition, and the case law, an order shall enter denying the motion on all grounds alleged therein

I

There is no merit to defendant's contention that Count II is duplicitous on the ground the acts alleged constitute two separate and distinct offenses. An indictment is not defective because it is framed in conjunctive allegations which follow substantially the language of the statute on which the indictment is based. Crain v. United States, 162 U.S. 625, 636-37, 16 S.Ct. 952, 40 L.Ed. 1097 (1896); United States v. Isabella, 210 F.Supp. 281, 282-83 (D. Mass.1962).

II

There is no merit to defendant's contention that 21 U.S.C. § 841 penalizes a state of mind in violation of the Fifth Amendment. Congress could reasonably find a distinction between the mere act of possession of a Schedule II drug, 21 U.S.C. § 844, and possession of the drug with intent to distribute it, 21 U.S.C. § 841, as related to personality, social and economic factors. Thus Congress could rationally provide for different penalties in seeking to control distribution and traffic in Schedule II drugs.

III

The defendant has submitted numerous affidavits in support of the principal ground on which his motion to dismiss rests, viz., the arbitrary and irrational classification of cocaine as a narcotic drug and the consequent denial of his right to due process and equal protection of the laws, and therefore no evidentiary hearing is required. United States v. Smaldone, 484 F.2d 311, 319-20 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974); United States v. Brookins and Gueche, 383 F.Supp. 1212 (D.N.J.1974). The constitutional attack here upon the statute depends upon the existence of facts which are neither matters of common knowledge nor within the sphere of specialized judicial notice. The fields of inquiry, rather, are medical and scientific. The...