United States v. Rothberg, 71-CR-164.

• Decision Date: 30 November 1972
• Docket Number: No. 71-CR-164.,71-CR-164.
• Parties: UNITED STATES of America v. Mitchell ROTHBERG et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

351 F. Supp. 1115

UNITED STATES of America v. Mitchell ROTHBERG et al., Defendants.

No. 71-CR-164.

United States District Court, E. D. New York.

November 30, 1972.

Robert A. Morse, U. S. Atty., E. D. N. Y., for plaintiff; Guy Heinemann, Asst. U. S. Atty., of counsel.

Michael Metzger, San Francisco, Cal., for defendant Mitchell Rothberg.

Maurice Brill, New York City, for defendant William F. Wilson.

Ivan Fisher and Michael J. Gillen, New York City, for defendant Gary Brittman.

BARTELS, District Judge.

Defendants Rothberg, Wilson, and Brittman have been indicted for transporting, concealing and selling marihuana, in violation of 21 U.S.C. § 176a. The term "marihuana" as used in that section, is defined in 26 U.S.C. § 4761 (Internal Revenue Code) as ". . . all parts of the plant Cannabis sativa L. . . .." Defendants contend that the Government must prove beyond a reasonable doubt that the specific subject matter of the indictment was Cannabis sativa L. and that, as a matter of law, this will be impossible because what the defendants imported into the United States came from Afghanistan and was Cannabis indica Lam. Accordingly, they made an offer of proof to establish that genus Cannabis is polytypic (having more than one species) and that Cannabis indica, being a separate species, fell without the statutory definition. It is the defendants' position that if, after viewing the proof offered, the court were to find that Cannabis indica was a species separate from Cannabis sativa, the evidence examined by the court would be submitted before the jury and a motion to acquit would thereafter be made pursuant to Rule 29 of the Federal Rules of Criminal Procedure.

The Government moved to reject the offer of proof, and to strike any expert testimony relating to the mono- or polytypic nature of Cannabis, contending (1) that the meaning of "Cannabis sativa L." as it is used in 26 U.S.C. § 4761, is clear, in that Congress intended to include in the definition all forms of Cannabis, not excluding Cannabis indica, wherever grown and however typed by professional taxonomists, and (2) that in all events Cannabis sativa L. is and always was a monotypic species.

To establish that there are at least two scientific and recognizable species in the genus Cannabis (sativa L. and indica Lam.) which are morphologically distinct in growth habit, form, and other attributes, defendants tendered the testimony of Dr. R. E. Schultes, Professor of Biology and Director of the Botanical Museum at Harvard University, and Dr. William Klein, Jr., Assistant Director of the Missouri Botanical Gardens.¹ In essence, they testified that from their studies of the genus Cannabis in its natural habitat in Afghanistan and in experimental sites in Mississippi, and from an examination of all botanical taxonomic literature treating the nature of the Cannabis plant, it was their conclusion that genus Cannabis was polytypic with three recognizable separate species, C. sativa L., C. indica Lam., and C. Ruderalis Jan., and that the Cannabis coming from Afghanistan (the place of origin alleged by the Government in this case) was C. indica Lam. and not C. sativa L.² Both admitted, however, that when Congress enacted 26 U.S.C. §§ 4741 and 4742 (predecessors of the present statute), containing the definition of marihuana as Cannabis sativa L., it was the generally accepted opinion among botanical taxonomists in the English speaking world that Cannabis sativa L. was monotypic, that Cannabis indica was simply a part or variety of Cannabis sativa, and that moreover such is the generally accepted opinion of botanists and taxonomists in America today. Indeed, both experts testified that they themselves had subscribed to this opinion although with some doubts up until they travelled to Afghanistan for a field study of the Cannabis in 1971 at the instance and expense of counsel for the defendants in United States v. Honeyman, N.D.Cal.Cr. 71-1035, September, 1972, who is also counsel for defendant Rothberg in the present case.

The Government's position is simply the opposite. It contends that Cannabis sativa is monotypic and that Cannabis indica is only a part or variety of the species and not a separate species. In support of its position the Government offered the testimony of Dr. Ernest Small, a botanical taxonomist associated with the Canadian Department of Agriculture. Dr. Small testified that under the criteria of both biological and morphological³ schools of thought, Cannabis indica was not a separate species of the genus Cannabis sativa.⁴ It was his opinion that in 1937 (the year of the enactment) Cannabis was thought to be a monotypic species by botanists in the English speaking world. He agreed that the subject matter is a somewhat subjective and arbitrary art, and that taxonomists frequently change their judgments about the classification of species.

In this battle of experts the court felt compelled to call its own witness and did so by calling Dr. Arthur Cronquist, Director of Botany of the New York Botanical Gardens and the author of many texts upon botanical subjects. Dr. Cronquist questioned the reliability of the Russian botanists, Zhukovski, Vavilov, and Janischevsky, and the French botanist, Lamarck, upon whom both Dr. Schultes and Dr. Klein heavily relied in reaching their conclusion, and categorically disagreed with both Dr. Schultes and Dr. Klein, concluding unequivocally that there was only one species of Cannabis, and that the experts have not found any taxonomical difference between sativa and indica but only variations which in such a wide species as Cannabis were taxonomically insignificant. He subscribed to the conclusion of all the other experts that in 1937 the general consensus of opinion among botanical taxonomists was that Cannabis was monotypic.

The crux of the dispute is the meaning of Cannabis sativa L. as used in the statute when enacted by Congress in 1937. At that time there were hearings before the House Committee on Ways and Means at...