United States v. Lewallen, 72-CR-94.

• Decision Date: 19 December 1974
• Docket Number: No. 72-CR-94.,72-CR-94.
• Citation: 385 F. Supp. 1140
• Parties: UNITED STATES of America, Plaintiff, v. David LEWALLEN, Defendant.
• Court: U.S. District Court — Western District of Wisconsin

385 F. Supp. 1140

UNITED STATES of America, Plaintiff, v. David LEWALLEN, Defendant.

No. 72-CR-94.

United States District Court, W. D. Wisconsin.

December 19, 1974.

David C. Mebane, U. S. Atty., by Warren W. Wood, Asst. U. S. Atty., Madison, Wis., for plaintiff.

Stuart Richter, Madison, Wis., for defendant.

OPINION AND ORDER

JAMES E. DOYLE, District Judge.

This case was tried to the court without a jury. At the close of the evidence offered by the government, and again at the close of all the evidence, defendant moved for a judgment of acquittal, and rulings were reserved. Applying to the government the burden of proving beyond a reasonable doubt the essential elements of the offense, I find the facts set forth hereinafter under the heading "Facts."

Facts

On or about September 28, 1972, in Dane County, in the Western District of Wisconsin, the defendant knowingly and intentionally, that is, voluntarily and purposely and not because of mistake or accident, and with the intention to violate the law, did possess with intent to distribute about 2,212 grams of a certain substance, specifically government exhibit 3.

At the time of the possession of it by the defendant on September 28, 1972, government exhibit 3 consisted of crushed green-plants; that is, it consisted of portions of parts of green-plants, including portions of leaves and stems. None of the leaves was intact. The moisture content was relatively low. The portions of the green-plants could be crumbled.

The green-plants belonged within a family known in the field of study called taxonomy as "Cannabaceae." Within the family Cannabaceae, the green-plants belonged within a genus known in taxonomy as "Cannabis."

Within the field of study known as taxonomy, it has been established that within the genus known as Cannabis are at least two distinct species, Cannabis sativa L. and Cannabis indica Lam., and probably a third distinct species, Cannabis ruderalis Jan. The taxonomic decision whether to dignify distinctions among plants within a genus by categorizing them as separate species involves an exercise of judgment, but it is an informed and disciplined judgment based upon well recognized factors, such as the geographical area in which the plant is found, its gross form (such as its height), its internal structure, its chemical characteristics, and so on.

All species of the genus Cannabis contain tetrahydrocannabinol, which is psycho-active or intoxicating.

The Cannabis in the possession of the defendant on or about September 28, 1972, was in a condition which rendered it impossible for anyone, however expert in the field, to determine whether it was Cannabis sativa L., Cannabis indica Lam., or Cannabis ruderalis Jan.

The existence of two species of Cannabis, namely Cannabis sativa L. and Cannabis indica Lam., has been known and published since about 1783, and the probable existence of the third species, Cannabis ruderalis Jan., has been published since about 1924. Despite these publications from which it has been clear that the genus Cannabis is polytypic (that is, that the genus includes more than one species), until about 1973, and specifically in 1938 and 1970, the genus Cannabis had been generally considered monotypic. Many people, including chemists, pharmacologists, physicians, and agronomists had shared the view that the genus Cannabis is monotypic, and there had been some acquiescence by taxonomists in expressions of this view. The question whether the genus is monotypic or polytypic had not been addressed and investigated in a deliberate and conscious manner within the community of taxonomists until about 1973. Presently, within the community of taxonomists, the weight of opinion is that the genus Cannabis is polytypic.

Among the physicians and pharmacologists who have expressed over the years the view that the genus Cannabis is monotypical, there have been frequent references to Cannabis as Cannabis indica.

OPINION

I have based the above findings upon the record in this case. I am aware that there are botanical taxonomists who might have testified that genus Cannabis is monotypic. But none did. Nor was there anything in the examination or cross-examination of defendant's expert, William M. Klein, to persuade me that his testimony should not be accepted.

I am also aware that the Courts of Appeals in at least three circuits have...