United States v. Ward

• Decision Date: 26 December 1967
• Docket Number: No. 16269.,16269.
• Citation: 387 F.2d 843
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lewis WARD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

387 F.2d 843 (1967)

UNITED STATES of America, Plaintiff-Appellee, v. Lewis WARD, Defendant-Appellant.

No. 16269.

United States Court of Appeals Seventh Circuit.

December 26, 1967.

William F. McNagny, Fort Wayne, Ind., Lewis Ward, pro se, for appellant.

Alfred W. Moellering, U. S. Atty., Joseph F. Eichhorn, Asst. U. S. Atty., Fort Wayne, Ind., for appellee.

Before HASTINGS, Chief Judge, and MAJOR, Senior Circuit Judge, and CUMMINGS, Circuit Judge.

HASTINGS, Chief Judge.

This is an appeal from an order of the district court denying the motion of defendant-appellant Lewis Ward to vacate a judgment of conviction and sentence of that court under which he is now in custody, such motion having been filed pursuant to the provisions of Title 28, U.S.C.A. § 2255.

Ward is presently serving two 12-year sentences concurrently as a result of his conviction, following a trial by jury, of both counts of a two-count indictment.

In Count I, Ward was charged with being a transferee of marihuana required to pay the tax imposed by 26 U.S.C.A. § 4741(a), who did acquire and obtain approximately 418.720 grams of marihuana without having paid such tax, in violation of 26 U.S.C.A. § 4744 (a) (1) of the United States Code.¹

In Count II, Ward was charged with transferring such marihuana to Ernest B. Jamison not in pursuance of a required written order, in violation of 26 U.S.C.A. § 4742(a) of the United States Code.²

After Ward's conviction, but before the pronouncement of sentence, pursuant to the provisions of 26 U.S.C.A. § 7237 (c) (2), the trial court was advised that the conviction was Ward's third offense, which Ward affirmed in open court.

Ward was sentenced to twelve years on each count, to be served concurrently, pursuant to Title 26, U.S.C.A. § 7237(a) and (b).³

On appeal, we affirmed Ward's judgment of conviction. United States v. Ward, 7 Cir., 360 F.2d 909 (1966).

Ward was represented by privately employed counsel at all stages of the proceeding through his prior appeal.

Ward filed a pro se motion in the district court, properly considered by that court as one seeking to vacate the judgment of conviction under 28 U.S.C.A. § 2255. This motion was denied by the district court, without a hearing, on the grounds that the motion, files and records conclusively showed that petitioner was entitled to no relief.

We granted Ward's petition for leave to proceed on appeal in forma pauperis, and ordered counsel appointed to represent him on appeal.

Prior to appointed counsel's appearance, Ward filed a brief pro se charging inadequate representation by his counsel at the original trial and that he was denied the right to compulsory process when certain witnesses were not subpoened by his counsel. We have considered these claims and find they are without merit, a view shared by Ward's court-appointed counsel in oral argument herein.

Ward's able appellate counsel filed an additional brief, raising a ground for reversible error not heretofore presented to the district court nor raised by Ward pro se. Because this issue embraces a somewhat new and novel approach to an Eighth Amendment⁴ question and suggests a substantial question of law, we have determined to consider it here without further reference to the district court. The Government has responded to the issue on brief and in oral argument.

The issue is precisely stated by appellant: "Does 26 U.S.C.A. § 7237 the sentencing statute impose a cruel and inhuman punishment upon marihuana offenders in view of current knowledge regarding marihuana?"

The summary of appellant's argument reads:

"The statute under which Defendant was sentenced, namely, 26 U.S. C.A. § 7237(a) and (b), is unconstitutional insofar as it equates opium and marihuana offenses which, in view of current knowledge regarding marihuana, is an unreasonable classification. Said statute, therefore, imposes a cruel and inhuman punishment upon marihuana offenders as opposed to opium offenders. Such a punishment was imposed upon Defendant in violation of his rights as guaranteed by the 8th Amendment to the Constitution of the United States, and his sentence is, therefore, invalid and should be set aside.

"If the statute under which Defendant was sentenced is unconstitutional, then the Indictment did not charge criminal offenses."

Appellant points out that the substantive section of the statute charged to have been violated, §§ 4744(a) (1) and 4742(a), are to be found in Subpart A of Part II of Subchapter A of Chapter 39 of the Internal Revenue Code of 1954, as amended. That Chapter 39 imposes regulatory taxes on certain items and Subchapter A distinguishes between and is entitled "Narcotic Drugs and Marihuana." That Part I of Subchapter A deals with "Narcotic Drugs" such as opium, isonepecaine, coca leaves, and opiate, the raw materials from which heroin and cocaine are derived. That Part II of Subchapter A deals solely with marihuana.

On the other hand, appellant observes that the statute imposing penalties for violations of Parts I and II of Subchapter A of Chapter 39 does not preserve the distinction between "narcotic drugs" and "marihuana," but, rather imposes mandatory minimum sentences for violations regardless of whether they involve opium or marihuana. 26 U.S.C.A. § 7237(a) and (b), supra. That under subsection (a) of § 7237, a person who unlawfully possesses either opium or marihuana faces a mandatory minimum sentence of two years, five years or ten years, dependent upon whether it is his first, second or subsequent offense, to which additional fines may be imposed. That under subsection (b) of § 7237, a person who sells or transfers either opium or marihuana without the required written "order" faces a mandatory minimum sentence of five or ten years dependent upon whether it is his first, second or subsequent offense, to which additional fines may be imposed. That subsection (d) of § 7237 prohibits suspension of sentence or granting probation if it is a second or subsequent offense punishable under subsection (a), but if punishable under subsection (b) the prohibition of suspension or probation is applicable to first offenders as well as second or subsequent offenders.

Treating the constitutional issues generally, in Sperling v. Willingham, 7 Cir., 353 F.2d 6 (1965), cert. denied, 384 U.S. 962, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966), we summarily held: "We find no merit in petitioner's further contention that § 7237(d) is unconstitutional as a denial of equal protection of the laws, or other civil rights, or cruel and unusual punishment to persons convicted under that statute as contrasted with persons convicted of other offenses who may be eligible for parole. Stewart v. United States, 8 Cir., 1964, 325 F.2d 745, 746 cert. denied, 377 U.S. 937, 84 S.Ct. 1344, 12 L.Ed.2d 301 (1964), and cases there cited."

In Stewart v. United States, supra, Chief Judge Johnsen, writing for the eighth circuit, considered the Eighth Amendment question with reference to the prohibition of parole in § 7237(d). Referring to the legislative history of the Act, he concluded that "no question of cruel and unusual punishment is involved from the closing of a narcotic sentence to parole privilege," citing with approval Gallego v. United States, 9 Cir., 276 F.2d 914 (1960); Lathem v. United States, 5 Cir., 259 F.2d 393 (1958). See, also, Black v. United States, 9 Cir., 269 F.2d 38 (1959), cert. denied, 361 U. S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357 (1960); and Hagan v. United States, 5 Cir., 256 F.2d 34, cert. denied, 358 U.S. 850, 79 S.Ct. 77, 3 L.Ed.2d 84 (1958). We agree.

However, in the instant case, appellant argues at length, citing Brown v. Board of Education, 347 U.S. 483, at 494, 74 S. Ct. 686, 98 L.Ed. 873 (1954), that courts may properly consider current knowledge and opinion in determining the constitutionality of a particular statute.

Starting from this premise, appellant then turns to "The Challenge Of Crime In A Free Society," a report by the President's Commission on Law Enforcement and Administration of Justice, a document published by the United States Government Printing Office, February, 1967. Chapter 8 of this report is entitled "Narcotics and Drug Abuse," pp. 211-237. This chapter presents a brief summary of various narcotics and related drugs and problems concerning regulation, enforcement, abuse and crime penalties, treatment and civil commitment.

A statement concerning marihuana, in relevant part, reads:

"Marihuana has no established and certainly no indispensable medical use. Its effects are rather complicated, combining both stimulation and depression. Much of its effect depends on the personality of the user. The drug may induce exaltation, joyousness and hilarity, and disconnected ideas; or it may induce quietude or reveries. In the inexperienced taker it may induce panic. Or, one state may follow the other. Confused perceptions of space and time and hallucinations in sharp color may occur; the person\'s complex intellectual and motor functions may be impaired. These effects may follow within minutes of the time the drug is taken.

The influence usually wears off within a few hours but may last much longer in the case of a toxic dose. The immediate physiological effects may include nausea and vomiting, but there are no lasting physical effects, and fatalities have not been noted. Tolerance is very slight if it develops at all. Physical dependence does not develop.

"There is no reliable estimate of the prevalence of marihuana use. To the limited extent that police activity is an accurate measure, use appears to be increasing. Bulk seizures of marihuana by Federal enforcement authorities totaled 5,641 kilograms in 1965 as against 1,871 kilograms in 1960. Bureau of Narcotics arrests for marihuana offenses about doubled over the same period of time. So did the number of arrests by California authorities.

"Marihuana use apparently cuts across a larger segment of the general population than does

...