United States v. Moore, 71-1252.
Citation | 486 F.2d 1139 |
Decision Date | 14 May 1973 |
Docket Number | No. 71-1252.,71-1252. |
Parties | UNITED STATES of America v. Raymond MOORE, Appellant. |
Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Patricia Wald, Washington, D. C. (appointed by this court), for appellant.
Roger M. Adelman, Asst. U. S. Atty. with whom Thomas A. Flannery, U. S. Atty. at the time the brief was filed, and John A. Terry, Philip L. Cohan and Richard L. Cys, Asst. U. S. Attys. were on the brief, for appellee. Henry F. Greene, Robert C. Crimmins, Oscar Altshuler and John D. Aldock, Asst. U. S. Attys., also entered appearances for appellee.
George P. Lamb, Jr., Washington, D. C., filed a brief on behalf of the Washington Area Council on Alcoholism and Drug Abuse as amicus curiae.
Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.
Certiorari Denied October 23, 1973. See 94 S.Ct. 298.
Circuit Judge Wilkey, with whom Circuit Judges MacKinnon and Robb join, filed an opinion voting to affirm all convictions and the sentences in the District Court. Circuit Judge Leventhal, with whom Circuit Judge McGowan concurs, filed an opinion voting to affirm all convictions and to remand to the District Court for further consideration of NARA disposition on resentencing. Circuit Judge MacKinnon concurred in Part IV of Circuit Judge Leventhal's opinion, and Chief Judge Bazelon in Part V thereof. Circuit Judges MacKinnon and Robb filed separate opinions voting to affirm all convictions and the sentences in the District Court.
Chief Judge Bazelon filed a dissenting opinion, stating he would extend the possibility of this defense of lack of capacity to crimes other than narcotics possession.
There being a majority of five judges of the court voting to affirm all convictions, but there being no majority in favor of any specific disposition, Circuit Judges MacKinnon, Robb and Wilkey, without intimating any dissatisfaction with the sentences originally imposed by the District Judge, vote to join Circuit Judges McGowan and Leventhal in affirming defendant Moore's conviction on all counts, vacating the sentences imposed, and remanding to the District Court for resentencing.
So ordered.
This is an appeal from a conviction under two federal statutes for possession of heroin. Appellant contends that his conviction was improper because he is a heroin addict with an overpowering need to use heroin and should not, therefore, be held responsible for being in possession of the drug. After careful consideration, we must reject appellant's contention and affirm the conviction by the trial court.
During January 1970 the Metropolitan Police began an investigation into a heroin trafficking operation allegedly being conducted in a Northwest Washington hotel. Through an informant, investigating officers learned that two men, identified simply as "Crip Green" and "Jumbo," were selling the drugs from two rooms in the hotel; acting under police supervision, the informant made heroin purchases from both of the suspects.
Based upon this information, search warrants for the two hotel rooms were obtained and executed on 29 January 1970. After knocking and announcing their identity and purpose, and receiving no reply, the officers forced their way into the room. The scene that greeted the officers was accurately described in appellant's own brief as follows:
Upon this evidence a four-count indictment was returned charging appellant with violations of the Harrison Narcotics Act, 26 U.S.C. § 4704(a) (1964), and the Jones-Miller Act, 21 U.S.C. § 174 (1964).2 Advancing his argument that he was a hopelessly dependent addict and could not, therefore, be held responsible for possession of heroin, appellant sought to have the indictment dismissed under the authority of this court's opinion in Watson v. United States.3
At the hearing on this motion appellant stated and the Government stipulated that appellant was indeed a heroin addict. Appellant further testified that he was not a heroin pusher, had never engaged in drug trafficking, and had simply come to the hotel room where he was arrested in order to purchase the illicit drug.
Relying on our opinion in Watson, appellant argued that he was a mere non-trafficking addict and that the indictment should be dismissed for any one of three reasons. First, appellant argued that it is unconstitutional to hold a non-trafficking addict guilty of simple possession of heroin. This position rests on an amplification and extrapolation of the Supreme Court's interpretation of the Eighth Amendment advanced in the admittedly confused and divergent opinions in Robinson v. California4 and Powell v. Texas.5 The second ground, an extension of the common law principle that there cannot be the requisite free will if the illegal act is performed because of overpowering compulsion, asserts that a narcotics addict is excused from any criminal penalties for the illegal acts of purchase, possession, and use of narcotics to satisfy his personal addictive needs. The third is appellant's construction and interpretation of the series of four congressional acts, which not once since 1909, neither in black letter statute nor in committee report, have specifically exempted the non-trafficking addict from criminal penalties for purchase, possession, and use.
The Government responded by arguing first that there was no constitutional, common law, or statutory rationale for permitting a non-trafficking addict a defense to a charge of possession of heroin. Secondly, it contended that in any event Moore was not a non-trafficking addict but was in fact engaged in pushing the drug and, even if there were a defense available to mere addicts, such a defense should not be permitted here.
Following a hearing, the trial court denied appellant's motion to dismiss. The trial judge, however, reserved his judgment on whether evidence of addiction could be introduced to the jury by the defense.
At trial the principal prosecution witness was the arresting officer who testified to the facts described above. In addition he testified that he had no personal knowledge that appellant was engaged in drug trafficking, that no tests had been conducted to determine if appellant's fingerprints were on the paraphernalia in the room, that no tests were conducted to determine if heroin powder was present on appellant's hands, and that he had not checked the hotel register and had no way of knowing whether appellant was in any way connected with the room in which he was arrested. On cross-examination the officer admitted that some addicts' habits require 50 to 100 capsules per day, and that having that many capsules in his pockets would not necessarily be inconsistent with appellant being a mere non-trafficking addict. Finally, the officer agreed on cross-examination that in his opinion appellant Moore was a heroin addict.
During the Government's presentation, the court heard out of the presence of the jury the testimony of Dr. Kaufman, an expert on drug addiction. Dr. Kaufman...
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