United States v. Leslie, Crim. A. No. 76-7.

• Decision Date: 01 April 1976
• Docket Number: Crim. A. No. 76-7.
• Parties: UNITED STATES of America, Plaintiff, v. Edward R. LESLIE, Defendant.
• Court: U.S. District Court — District of Delaware

411 F. Supp. 215

UNITED STATES of America, Plaintiff, v. Edward R. LESLIE, Defendant.

Crim. A. No. 76-7.

United States District Court, D. Delaware.

April 1, 1976.

John H. McDonald, Asst. U. S. Atty., Wilmington, Del., for plaintiff.

Richard Allen Paul and Paul M. Lukoff of Paul & Lukoff, Wilmington, Del., for defendant.

OPINION

WALTER K. STAPLETON, District Judge:

Section 843(b) of Title 21 of the United States Code provides:

It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony under any provision of Title 21, respecting Drug Abuse Prevention and Control. Each separate use of a communication facility shall be a separate offense under this subsection. For purposes of this subsection, the term "communication facility" means any and all public and private instrumentalities used or useful in the transmission of writing, signs, signals, pictures, or sounds of all kinds and includes mail, telephone, wire, radio, and all other means of communication.

Defendant Leslie stands charged with nine separate violations of Section 843(b). The counts differ among themselves only with respect to dates and times, and each charges in essence that the defendant participated in a telephone conversation between Wilmington, Delaware, and Toronto, Ontario, Canada, in order to facilitate a distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1).

The defendant has moved to dismiss the information and in the course of the briefing and argument on this motion, it has been conceded by the United States that the evidence it will produce at trial will tend to show the following, and no more than the following:

1. Defendant is a Canadian national.

2. With respect to all of the telephone calls, defendant was on the Canadian end of the line.

3. The other party to the telephone calls was a government informant.

4. The single distribution of methamphetamine allegedly contemplated in the conversations between defendant and the informant was to have occurred in Pittsburgh, Pennsylvania, but, in fact, never took place.

5. Neither the defendant, nor any agent of his, nor any methamphetamine originating from the defendant, came into the United States as a result of the telephone conversations.¹

Upon this stipulation of what the trial evidence will show, there are three questions before the Court for decision:

1. In order to obtain a conviction under 21 U.S.C. § 843(b) where the felony allegedly facilitated was distribution of drugs, must the government prove an actual distribution of the drugs?

2. Did Congress, when it enacted 21 U.S.C. § 843(b), intend to reach international phone calls concerned with contemplated drug distributions within the United States?

3. If the answer to question 2 is yes, did Congress have the power under international law to so legislate in a case where the defendant is a foreign national, never enters the United States, and where no acts, much less any distribution of drugs, occur in the United States?

I believe that the first question should be answered in the affirmative, thus rendering 21 U.S.C. § 843(b) unavailable to the government in the present case. Because of that disposition, I decline to reach the second and third questions.

Prior to the 1970 enactment of the narcotics laws in their present form, the "use of communications facilities" statute (18 U.S.C. § 1403) read as follows:

Whoever uses any communication facility in committing or in causing or facilitating the commission of, or in attempting to commit, any act or acts constituting an offense or a conspiracy to commit an offense the penalty for which is provided in —

various statutory sections specified, including principal provision of narcotics law

shall be imprisoned not less than two and not more than five years, and, in addition, may be fined not more than $5,000. Each separate use of a communication facility shall be a separate offense under this section.

This statute made it a federal crime to use a communications facility:

1. "in committing" any acts constituting one of the specified narcotics offenses,

2. "in causing or facilitating the commission of" any such acts,

3. "in attempting to commit" any such acts, or

4. in "a conspiracy to commit" any such acts.

The statute, as does its present-day counterpart, further provided that each separate use would constitute a separate offense.

Given the language and structure of this statute, the most natural construction of the phrase "in causing or facilitating the commission of" a narcotics offense is one which brings within its scope any communications activity resulting in or assisting in the commission of a narcotics offense.² The phrase thus refers to something more than an unsuccessful effort to commit an offense, which would rather be encompassed by the third or fourth clauses.

As is apparent from a comparison of the text of old Section 1403 with the 1970 revision now contained in 21 U.S.C. § 843(b) and quoted at the commencement of this Opinion, the draftsman of the revision in most respects closely tracked the language of the existing statutory provision. The first two clauses were left intact; the third and fourth clauses, relating to criminal conduct short of a consummation of the substantive offense, however, were excised. The reasonable inference to be drawn is that Congress intended to deprive the government of the use of Section 843(b) in cases of this kind. While one might be reluctant to draw this inference if the result were to relieve of all criminal responsibility those who use communications facilities in attempts and conspiracies to violate the narcotics laws, Congress, at the same time it deleted the third and fourth clauses of the old statute, also inserted a new statutory section dealing solely with attempts and conspiracies to violate the narcotics laws. 21 U.S.C. § 846...