United States v. Nichols

• Decision Date: 26 September 1975
• Docket Number: Cr. A. No. 5-80070.
• Citation: 401 F. Supp. 1377
• Parties: UNITED STATES of America, Plaintiff, v. Carlton NICHOLS et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

401 F. Supp. 1377

UNITED STATES of America, Plaintiff, v. Carlton NICHOLS et al., Defendants.

Cr. A. No. 5-80070.

United States District Court, E. D. Michigan, S. D.

September 26, 1975.

Ralph B. Guy, Jr., U. S. Atty., Richard L. Delonis, Asst. U. S. Atty., Detroit, Mich., for plaintiff.

Edward Wishnow, Bornstein & Wishnow, Southfield, Mich., Paul D. Muller, Highland Park, Mich., N. C. Deday LaRene, Burdick & Fink, Detroit, Mich., for defendants.

MEMORANDUM OPINION

FEIKENS, District Judge.

Diane Morford and her co-defendants, Carlton Nichols and Charles Jefferson Hines, have been charged by a Grand Jury of the United States with violations of 21 U.S.C. § 841(a)(1), part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Counts Six and Seven of the indictment charge defendant Morford with (1) aiding and abetting the possession of 23 grams of heroin on or about October 23, 1974 with intent to distribute the same, and (2) aiding and abetting the distribution of 23 grams of heroin on or about October 23, 1974. In the belief that the government will seek to establish both Count Six and Count Seven by proving but a single transaction, namely the sale and delivery of 23 grams of heroin to an undercover agent, and that Congress did not intend in enacting 21 U.S. C. § 841(a)(1) to create separate and independent offenses of possession with intent to distribute and distribution, at least insofar as such offenses may be predicated upon a single sale and delivery at a single time and place, defendant Morford brings this motion to dismiss Counts Six and Seven in whole or in part, or alternatively to compel the government to elect between these counts.

21 U.S.C. § 841 provides in relevant part:

"(a) Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally—

"(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance."

The present motion requires the court to determine the intent of Congress in enacting this provision. Did Congress intend with the above language to make a single delivery of narcotics punishable as two separate offenses of possession with intent to distribute and distribution, or did it define alternative offenses, one requiring proof of fewer elements than the other? Since the legislative history is silent on this point, the court must turn to general principles of statutory construction. Guidance is provided by a consistent line of Supreme Court decisions involving analogous issues.

In Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955), the Court reversed the defendant's consecutive sentences on two counts of violating the Mann Act, where two women had been transported in a single transaction. The Court recognized that separate convictions would be proper if Congress so intended, but found that the Congressional purpose was left unclear in this regard. A principle of lenity was declared:

"When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or anti-social conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. . . .

Doubt will be resolved against turning a single transaction into multiple offenses, when we have no more to go on than the present case furnishes." 349 U.S. at 83-84, 75 S.Ct. at 622 (emphasis added).

In Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), the Court held that consecutive sentences were improper on separate counts of (1) bank robbery and (2) entering a bank with intent to commit a felony. Accordingly, the Court reversed and remanded for resentencing. While the Supreme Court's disposition required no express ruling on the validity of the separate conviction (as opposed to sentence) for entering a bank with intent to commit a felony, the Court's opinion indicates that it did not regard the two counts as stating independent offenses. The Court stated:

"The Government asks us to interpret this statute as amended to make each a completely independent offense. It is unnecessary to do so in order to vindicate the apparent purpose of the amendment. The only factor stressed by the Attorney General in his letter to Congress was the possibility that a thief might not commit all the elements of the crime of robbery. It was manifestly the purpose of Congress to establish lesser offenses. But in doing so there was no indication that Congress intended also to pyramid the penalties." 352 U.S. at 327, 77 S.Ct. at 406 (emphasis added).

In Heflin v. United States, 358 U.S. 415, 79 S.Ct. 451, 3 L.Ed.2d 407 (1959), the Court reversed a conviction on separate counts for bank robbery and receiving stolen property. The Court stated:

"We held in Prince v. United States, supra, that the crime of entry into a bank with intent to rob was not intended by Congress to be a separate offense from the consummated robbery. . . . We gave the Act that construction because we resolve an ambiguity in favor of lenity when required to determine the intent of Congress in punishing multiple aspects of the same criminal act." 358 U.S. at 419, 79 S.Ct. at 453 (emphasis added).

In Milanovich v. United States, 365 U.S. 551, 81 S.Ct. 728, 5 L.Ed.2d 773 (1961), the Court set aside a conviction on separate counts of violating 18 U.S.C. § 641 by (1) stealing government property and (2) receiving and concealing that same property, where concurrent sentences were imposed. Relying upon its decision in Heflin v. United States, supra, the Court held that the trial judge erred in failing to instruct the jury "that a guilty verdict could be returned upon either count but not both". 365 U.S. at 555, 81 S.Ct. at 730. As pointed out by Mr. Justice Frankfurter in dissent, the two counts were not based upon a single act by the defendant, but upon "two clearly severed transactions". The theft count was based upon the defendant's act as an accessory in bringing the thieves to the scene of the crime, whereas the receiving and concealing count was based upon the defendant's act in taking possession of part of the stolen currency seventeen days later.

It thus appears that the principal of lenity established by the Supreme Court in resolving issues of multiple punishment for a "single act" may be applied to bring together transactions that are separate in time, place and manner of accomplishment. It must a fortiori be applicable to charges based upon a single transaction. In construing the statutory provisions involved on the instant motion, the Prince case is most closely analogous. It established a rule of construction for statutory provisions that proscribe increasing stages in the accomplishment of a single basic offense. If the defendant is convicted of the ultimate offense, the "lesser" offense may not also be punished.

The Prince Court's characterization of entering a bank with intent to commit a felony as a "lesser offense" cannot have meant that it carried a lower potential punishment. As the Court was aware, both that offense and the "greater" offense of robbery were contained within a single subsection and carried the same potential fine and/or prison term. See 18 U.S.C.A. § 2113 (1970); Prince v. United States, 352 U.S. at 323 n. 1, 77 S.Ct. 403. Rather, the Court must have used the term "lesser" to mean that the crime of entering a bank with intent to commit a felony covered transactions with a lesser number of accomplished elements than a consummated robbery. In other words, "even if the culprit should fall short of accomplishing his purpose, he could be imprisoned for 20 years for entering with the felonious intent". 352 U.S. at 329, 77 S.Ct. at 407.

This analysis is readily applicable to the statutory scheme involved in the instant case. The offense of possession with intent to distribute is not "lesser" in the usual sense of involving a lower potential punishment. As with the statute in Prince, both offenses charged are contained within a single subsection and carry the same potential fine and/or prison term. However, it is "lesser" in the Prince Court's sense of describing a criminal act that falls short of the actor's ultimate purpose. By creating the offense of possession with intent to distribute, "it was manifestly the purpose of Congress" to reach those transactions that fell short of distribution, not to create a separate offense in cases in which the distribution was actually consummated. If, therefore, the government proves nothing more than a single sale of 23 grams of heroin, the court holds that conviction on only one count is authorized by 21 U.S.C. § 841(a)(1).

The government urges that a contrary result is compelled by other Supreme Court decisions. In Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), the Court affirmed the defendant's convictions and consecutive sentences on separate counts deriving from a single sale of morphine. The counts were predicated, respectively, upon § 1 of the Harrison Narcotic Act, which prohibited the sale of narcotics except in or from the original stamped package, and § 2 of the same statute, which prohibited the sale of narcotics except pursuant to a written order of the purchaser. The Court stated:

"The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." 284 U.S. at 304, 52 S.Ct. at 182 (emphasis added).

In Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958), the Court, expressly adhering to its ...