United States v. Umentum
| Decision Date | 19 September 1975 |
| Docket Number | No. 75-Cr-103.,75-Cr-103. |
| Citation | 401 F. Supp. 746 |
| Court | U.S. District Court — Eastern District of Wisconsin |
| Parties | UNITED STATES of America, Plaintiff, v. Clark J. UMENTUM et al., Defendants. |
William J. Mulligan, U. S. Atty. by Randall J. Sandfort, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff.
Shellow & Shellow by James M. Shellow, Milwaukee, Wis., for Umentum & Piechota.
Dominic H. Frinzi, Milwaukee, Wis., for Winkka.
Robert J. Lerner of Lerner & Adelman, Milwaukee, Wis., for Mittelstaedt & Gibbons.
DECISION AND ORDER
The defendants in this action have filed motions to dismiss the first two counts of the indictment, to compel the government to elect between counts and between offenses within counts, to compel disclosure of exculpatory evidence, for a bill of particulars, and to suppress certain physical evidence and statements. An evidentiary hearing was held on September 12, 1975, in connection with the defendants' motions to suppress as evidence certain property seized from an automobile; the latter motions to suppress were denied. The other motions are before me now for decision.
The defendants Clark J. Umentum, Marilyn Josetta Piechota, John O. Mittelstaedt, and Cheryl Gibbons have moved to dismiss counts I and II of the indictment, in which they are charged with conspiracy to possess with intent to distribute and with distribution of cocaine on the ground that cocaine is misclassified as a narcotic drug.
The premise of the defendants' argument is that as a matter of scientific fact, cocaine (unlike heroin) is not a narcotic drug and that it has no properties or effects which justify classifying it as a narcotic rather than a nonnarcotic stimulant. For the purpose of these defendants' motions to dismiss, this court will assume that as a matter of scientific fact cocaine is not a narcotic drug even though Congress has defined it as such. Accordingly, the request of the defendants Umentum and Piechota for an evidentiary hearing to prove such fact will be denied.
Notwithstanding any medical classification of cocaine as nonnarcotic, the federal courts in this district and elsewhere have consistently upheld the legal classification of cocaine as a Schedule II narcotic drug controlled substance for the purpose of establishing criminal penalties for its possession or distribution. See my opinion of September 5, 1975, in United States v. Gill, 75-CR-113, and cases cited therein. I believe those cases applied the proper standard for review, the "rational basis" test articulated in United States v. Carolene Products Co., 304 U.S. 144, 153-154, 58 S.Ct. 778, 82 L.Ed. 1234 (1938), since neither a fundamental interest nor a suspect classification is involved. Defendants admit that even if cocaine were classified as a nonnarcotic drug, loss of liberty would be possible under 21 U.S. C. § 841(b)(1)(B). Compare Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), and Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Accordingly, the defendants' motions to dismiss counts I and II because of the misclassification of cocaine will be denied.
The defendants Umentum and Piechota have moved to dismiss counts I and II of the indictment for failure to allege an offense. Each of those counts refers to "cocaine, a Schedule II narcotic drug controlled substance." The defendants argue that cocaine does not appear in 21 U.S.C. § 812(c) Schedule II, which reads in part:
"(a)(4) Coca leaves and any salt, compound, derivative, or preparation of coca leaves, and any salt, compound, derivative or preparation thereof which is chemically equivalent or identical with any of these substances, except that the substances shall not include decocainized coca leaves or extraction of coca leaves, which extractions do not contain cocain or ecgonine."
I take judicial notice that cocaine is a derivative of coca leaves. See United States v. Amidzich, 396 F.Supp. 1140 (E.D.Wis.1975), and United States v. Orzechowski, 75-CR-83 (E.D.Wis. August 21, 1975). See also Webster's Third New International Dictionary, at 434 (G & C Merriam Co. 1966); 4 Gray's Attorneys' Textbook of Medicine, Ch. 132, at 132-181 (3d ed. 1974). The court of appeals for the seventh circuit has held that in a similar situation a court should take judicial notice that heroin is a "salt, compound, derivative, or preparation of opium." United States v. Chiarelli, 192 F.2d 528 (7th Cir. 1951), cert. denied 342 U.S. 913, 72 S.Ct. 359, 96 L.Ed. 683. Accordingly, the defendants' motion to dismiss counts I and II will be denied.
Defendants Umentum and Piechota have moved for the dismissal of count I of the indictment on the ground that the conspiracy statute, 21 U.S.C. § 846, is unconstitutional for failing to require the allegation or proof of overt acts. The defendants claim that the statute infringes on first amendment rights by imposing criminal sanctions upon thought and speech, upon fifth amendment rights by failing to give proper notice of the charge, and upon eighth amendment rights by creating crimes of status. I believe the defendants' claims must be rejected.
Section 846 subjects to punishment "any person who attempts or conspires to commit any offense defined in this subchapter . . . ." The statute involves no regulation of free expression, but instead prohibits the act of attempting or agreeing to commit one of the substantive offenses defined in the subchapter. Although the act of agreement may have some "pure speech" aspects, the government interest in illegal drug transactions is sufficient to justify such incidental restriction on first amendment rights. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
The defendants argue that an overt act is necessary in order to define or delimit the crime, "so that before the act is done either one or all of the parties may abandon their design, and thus avoid the penalty described by the statute." However, the statute requires the act of agreement with intent to agree to commit the substantive offense, and once this agreement has occurred, the crime of conspiracy is complete. The crime defined by the statute does not differ from crimes generally, in that once it is done, it cannot be undone.
The defendants also contend that § 846 is unconstitutional for failing to recognize the "free will of the defendants." It is asserted by the defendants in this regard that the statute creates a crime of status. See Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968). This argument has previously been rejected by Judge Reynolds in United States v. Amidzich, 396 F. Supp. 1140 (E.D.Wis.1975):
"The `status' of being coconspirators bears no resemblance to either narcotics addiction, Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), or alcoholism, Powell v. Texas, supra."
Accordingly, the defendants' motion to dismiss count I on the ground of the unconstitutionality of 21 U.S.C. § 846 will be denied.
The defendants Umentum and Piechota have moved for the dismissal of count I of the indictment on the ground that it fails to allege an offense. Specifically, paragraph 2 of that count alleges that the defendants were to "unlawfully procure and arrange for the unlawful procurement of quantities of cocaine" as part of the conspiracy, and the defendants assert that the procurement of cocaine is not unlawful.
Like Judge Reynolds in Amidzich, I find the defendants' contention to be without merit. The essence of procurement is to obtain possession, and possession of controlled substances is an offense under 21 U.S.C. § 844. The purported distinction between a conspiracy to possess and a conspiracy to obtain possession violates both common sense and the accepted rule that an indictment is to be tested by practical and not technical considerations. Robbins v. United States, 476 F.2d 26 (10th Cir. 1973); United States v. Miller, 491 F.2d 638 (5th Cir. 1974). In my opinion, the language of paragraph 2 of count I is unobjectionable. Accordingly, the defendants' motion to dismiss count I for referring to "unlawful procurement" will be denied.
Defendants Umentum, Piechota, Mittelstaedt, and Gibbons have moved to dismiss count I for failure to allege an offense, on the ground that overt acts are an essential element of a § 846 conspiracy and that no such acts are alleged in Count I of the indictment.
The premise of the defendants' argument, that § 846 requires that an indictment allege more than an agreement to commit certain substantive offenses, is incorrect. United States v. Deviteri, 350 F.Supp. 550 (E.D.N.Y.1972); United States v. Miller, 387 F.Supp. 1097 (D.Conn.1975). United States v. Lawson, 507 F.2d 433 (7th Cir. 1974), cert. denied, 420 U.S. 1004, 95 S.Ct. 1446, 43 L.Ed.2d 762 (1975), is not to the contrary, holding only that it is not error for the government gratuitously to prove that an overt act was in fact committed. Accordingly, the defendants' motions to dismiss count I for failure to allege overt acts will be denied.
The defendants Mittelstaedt and Gibbons have moved for an order compelling the government to elect between trying count I or count II of the indictment on the ground that the conspiracy charge of count I and the substantive charge of count II are merged into a single offense.
The defendants acknowledge that unless the congressional intent is otherwise, an indictment can charge a substantive offense and a conspiracy to commit that offense. Pereira v. United States, 347 U.S. 1, 74 S.Ct. 358, 98 L.Ed. 435; Pinkerton v. United States, 328 U. S. 640, 66...
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§ 44.03 TYPES OF FACTS SUBJECT TO NOTICE: FRE 201(B)
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