United States v. Eramdjian

• Decision Date: 07 October 1957
• Docket Number: 26721,Cr. No. 26641,26776.,26644
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Ruth ERAMDJIAN, Defendant. UNITED STATES of America, Plaintiff, v. Federico PEREZ, Defendant. UNITED STATES of America, Plaintiff, v. David Martinez GARCIA, Defendant. UNITED STATES of America, Plaintiff, v. Manuel Saldana-GARCIA, Defendant.

155 F. Supp. 914

UNITED STATES of America, Plaintiff, v. Ruth ERAMDJIAN, Defendant.

UNITED STATES of America, Plaintiff, v. Federico PEREZ, Defendant.

UNITED STATES of America, Plaintiff, v. David Martinez GARCIA, Defendant.

UNITED STATES of America, Plaintiff, v. Manuel Saldana-GARCIA, Defendant.

Cr. Nos. 26641, 26644, 26721, 26776.

United States District Court S. D. California, S. D.

October 7, 1957.

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Laughlin E. Waters, U. S. Atty., John Duncan, Asst. U. S. Atty., Los Angeles, Cal., Wm. Seavey, Asst. U. S. Atty., San Diego, Cal., for plaintiff.

McLaughlin & Casey, Los Angeles, Cal., for Ruth Eramdjian.

Gostin & Katz, San Diego, Cal., for Perez.

Richard Vaughn, San Diego, Cal., for David M. Garcia.

White & Froehlich, San Diego, Cal., for Manuel Garcia.

JAMES M. CARTER, District Judge

These are cases of first impression and concern Sec. 1407, Title 18, U.S.C.A. enacted July 18, 1956, c. 629, Title II, Sec. 201, 70 Stat. 574. The cases raise questions concerning the interpretation and constitutionality of the statute.¹

The statute reads,

"§ 1407. Border crossings—narcotic addicts and violators

"(a) In order further to give effect to the obligations of the United States pursuant to the Hague convention of 1912, proclaimed as a treaty on March 3, 1915 (38 Stat. 1912), and the limitation convention of 1931, proclaimed as a treaty on July 10, 1933 (48 Stat. 1571), and in order to facilitate more effective control of the international traffic in narcotic drugs, and to prevent the spread of drug addiction, no citizen of the United States who is addicted to or uses narcotic drugs, as defined in section 4731 of the Internal Revenue Code of 1954, as amended (except a person using such narcotic drugs as a result of sickness or accident or injury and to whom such narcotic drug is being furnished, prescribed, or administered in good faith by a duly licensed physician in attendance upon such person, in the course of his professional practice) or who has been convicted of a violation of any of the narcotic or marihuana laws of the United States, or of any State thereof, the penalty for which is imprisonment for more than one year, shall depart from or enter into or attempt to depart from or enter into the United States, unless such person registers, under such rules and regulations as may be prescribed by the Secretary of the Treasury with a customs official, agent, or employee at a point of entry or a border customs station. Unless otherwise prohibited by law or Federal regulation such customs official, agent, or employee shall issue a certificate to any such person departing from the United States; and such person shall, upon returning to the United States, surrender such certificate to the customs official, agent, or employee present at the port of entry or border customs station.

"(b) Whoever violates any of the provisions of this section shall be punished for each such violation by a fine of not more than $1,000 or imprisonment for not less than one nor more than three years, or both. Added July 18, 1956, c. 629, Title II, § 201, 70 Stat. 574."

Section 1407, 18 U.S.C.A., was part of the general revision of the narcotics laws effective July 18, 1956, known as the Narcotic Control Act of 1956.²

The court takes judicial notice of the great numbers of persons intercepted upon entering the United States at points of entry and particularly at San Ysidro, within this District, carrying quantities of narcotics and marihuana; of the number of criminal cases in the courts of the United States and in the southern division of the southern district of California, concerning narcotics and marihuana; of the large number of such persons who, prior to arrest, were either addicted to the use of narcotics, or were prior users of marihuana or had been previously convicted in state or federal courts of violation of narcotic or marihuana laws; that such classes of persons are prone to engage in illicit traffic in drugs; that one of the most disruptive factors in the effective control of the traffic in narcotics and marihuana is the smuggling of such substance across the international boundary.

It is a fair and logical conclusion from such facts, that special attention, scrutiny, registration and recording of such classes of persons most prone to smuggle such drugs into the United States, to be made upon the occasion of their leaving the United States and particularly on their return to the United States from Mexico, would materially assist in controlling the illicit traffic in narcotics and marihuana across the international boundary.

I.

The Questions Raised.

The statute provides in part, that "no citizen of the United States who is addicted to or uses narcotic drugs * *" etc. We pause to note that this provision as to the addict or user applies only to narcotic drugs and not to marihuana. The statute incorporates the definition of narcotic drugs from Sec. 4731, Internal Revenue Code of 1954, 26 U.S.C.A. § 4731. The omission here of marihuana is apparently because marihuana itself is not a substance causing physical addiction thereto, although psychological addiction may result. However, marihuana has a definite relationship to the narcotic and crime problem.³

The statute then excepts the person using such narcotic drugs under the care of a physician. The words, "a person using" is probably broad enough to cover a person addicted, who also uses narcotics under the care of a physician. But that problem is not involved in our cases.

It is contended that the words, "who is addicted to or uses narcotic drugs," are too uncertain to be used in stating a public offense and that therefore the statute violates the Fifth Amendment.

The statute next refers to one "who has been convicted of a violation of any of the narcotic or marihuana laws of the United States, or of any State thereof * * *". Here marihuana laws have been included and properly so, because of the relationship of marihuana to the drug problem.

The statute proceeds, "the penalty for which is imprisonment for more than one year." One of the cases at bar presents questions of interpretation of the statute, where the actual sentence imposed by a state court was less than one year. Contention is made that "penalty" applies to the punishment actually imposed and that the word "is" has some controlling significance. We hereafter discuss these problems.

The statute next states, "shall depart from or enter into or attempt to depart from or enter into the United States unless such person registers" with a designated official "at a point of entry or a border customs station."

Here the contention of defendants is that the statute abridges a constitutional right to travel or to leave or enter the United States and therefore violates the Fifth Amendment. We likewise discuss the problem. Finally, the statute requires the surrender of the certificate upon returning to the United States.

These cases also raise a question as to whether or not the requirement of registration violates the provisions of the Fifth Amendment in requiring a party to be a witness against himself, allegedly requiring him to confess a crime, and the related question as to whether the information supplied would constitute a "link in the chain" leading to incrimination.

II.

The Constitutional Basis for Congressional Action—the Treaty References and Foreign Commerce.

Although a State has generally power to enact criminal statutes under the broad authority of its police power, no similar authority exists under the United States Constitution. The constitutional authority for enactment of penal statutes in the Federal system must be found in the constitution itself.

Generally and without limiting the classifications, the types of crimes within Congressional authority are as follows:

1. Crimes penalizing an interference with a function of the Federal government art. I, Sec. 8, Par. 18, United States Constitution, "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers * * *" etc., for example, a false claim to a government agency or conspiracy to defraud the government;

2. Crimes involving subject matters expressly stated in the Constitution as within the power of Congress, such as to the power to set up a monetary system (crimes against the currency), power to set up and maintain the postal system (theft of mail, robbery of Post Offices, etc.), art. I, Sec. 8, Par. 18, U.S. Constitution. This second category overlaps the first category and likewise includes acts interfering with essential government functions;

3. Crimes involving interstate or foreign commerce, art. I. Sec. 8, Par. 3;

4. Crimes arising on government land, art. I, Sec. 8, Par. 17;

5. Crimes arising under the taxing power, art. I, Sec. 8, Par. 1;

6. Crimes of piracy and felonies on the high seas, art. I. Sec. 8, Par. 10;

7. Crimes against the law of nations, art. I, Sec. 8, Par. 10;

It is not ordinarily necessary for the Congress to set forth in the statute the constitutional authority it invokes to justify the statute.

Here the statute first makes reference to the Hague convention in 1912, proclaimed as a treaty on March 3, 1915, 38 Stat. 1912, and the limitation convention of 1931 proclaimed as a treaty on July 10, 1933 (48 Stat. 1543, 1571). The treaty of 1912 made particular reference to opium, morphine and cocaine. Neither treaty mentions marihuana.

The treaty reference is not an essential part of the statute and we believe the statute, if otherwise constitutional, would be equally valid if it began with the words, "no citizen of the United States * * *" and did not contain the preamble reference to treaties. In any event the preamble to the statute states a three-fold purpose, (1) "to give effect to the (treaty) obligations of the United States," and (2) "to facilitate more effective control of the international traffic...