US v. Jacquinto
Decision Date | 02 February 1979 |
Docket Number | Crim. No. 78-322-1,78-322-2. |
Citation | 464 F. Supp. 728 |
Parties | UNITED STATES of America v. Dominic JACQUINTO. UNITED STATES of America v. Raymond TRAINOR. |
Court | U.S. District Court — Eastern District of Pennsylvania |
Theodore A. McKee, Asst. U. S. Atty., Philadelphia, Pa., for Government.
Anthony J. DeFino, Philadelphia, Pa., for Jacquinto.
Joseph M. Miller, Philadelphia, Pa., for Trainor.
On January 2, 1979, Dominic Jacquinto pleaded nolo contendere to a charge of violating 21 U.S.C. § 846, which prohibits, inter alia, conspiring to distribute controlled substances. On that same date, Raymond Trainor pleaded guilty to a charge of violating the same conspiracy statute, as well as to charges of violating 21 U.S.C. § 841, which prohibits the substantive offense of distribution. At the plea hearing, in informing the defendants of the maximum penalty to which they would be subject under § 846, I relied upon the representations of the Assistant United States Attorney that such penalty includes a mandatory special parole term.
I have since determined, mea sponte1, that § 846 does not empower me to impose a term of special parole. Accordingly, I am re-opening the Rule 11 hearing in order to inform the defendants that the lawful maximum punishment under § 846 includes only fine and/or imprisonment, but not special parole. Also, since it is apparent that both the United States Attorney's Office and the Probation Office2 have misread § 846, I will set forth my reasons for concluding that that statute does not authorize the imposition of a special parole term.
House Report No. 1444, 91st Cong.2d Sess., 3 U.S.Code Cong. and Admin.News, p. 4566, 4617 (1970) emphasis added.
Mearns, supra, 461 F.Supp. at 643 emphasis added.
The holding in Jacobson is simply erroneous, and I join Judge Stapleton in declining to follow it. I also decline to follow United States v. Burman, 584 F.2d 1354 (4th Cir. 1978). In that case, the Fourth Circuit held that the imposition of a special parole term is required when imprisonment is imposed under § 846, reasoning in essence that the "statutory scheme" requires that the penalties for conspiracy be identical to those for the substantive offense. But the "statutory scheme" indicates otherwise; in enacting 21 U.S.C. §§ 841, 845 and 846, it is clear that Congress has used the terms "fine", "imprisonment", and "special parole" to describe three distinct penalties, and that § 846 provides for the imposition of only two of them. Since § 846 is a criminal statute, it must be strictly construed. It is impermissible to read into that statute a penalty for which it makes no provision and to which it does not refer, particularly since the legislative history reveals that Congress did not mean to authorize imposition of that penalty.
For all of the above reasons I hold that I am without power to impose a term of special parole under 21 U.S.C. § 846. Therefore, I will vacate Dominic Jacquinto's plea of nolo contendere and Raymond Trainor's plea of guilty.
1 Neither defense attorney has moved to correct the error.
2 The Pre-sentence Investigation Reports prepared by the Probation Office in these two cases state that the maximum penalty available under § 846 is the "same as that for the substantive offense. 5 years and/or $15,000 plus at...
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Bifulco v. United States
...argument that "imprisonment" in § 406 plainly means a term of incarceration plus special parole. See, e. g., United States v. Jacquinto, 464 F.Supp. 728, 729-730 (ED Pa.1979). Faced with these obstacles, the Government cannot rely solely on a "plain meaning" interpretation of the term "impr......
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U.S. v. Sellers
...§ 846. They rely on United States v. Mearns, 599 F.2d 1296 (3d Cir. 1979), Aff'g 461 F.Supp. 641 (D.Del.1978); United States v. Jacquinto, 464 F.Supp. 728 (E.D.Pa.1979); Fassette v. United States, 444 F.Supp. 1245 (C.D.Cal.1978). These decisions hold that the special parole term which must ......
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U.S. v. Mearns, s. 79-1044
...persuaded by the analysis of the district courts in Fassette v. United States, 444 F.Supp. 1245 (C.D.Cal.1978), and United States v. Jacquinto, 464 F.Supp. 728 (E.D.Pa.1979), as well as Judge Stapleton's well-reasoned opinion in this case, holding that special parole does not apply to § 846......
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United States v. LATHERN
...and that circuit's law remains unclear. Although some district courts have followed Fassette's lead (see, e. g., United States v. Jacquinto, 464 F.Supp. 728 (E.D. Pa.1979)), only one circuit court of appeals, the third, has explicitly forbidden the imposition of special parole under § 846. ......