US v. Severich, 87-556-Cr-ARONOVITZ.
Decision Date | 12 January 1988 |
Docket Number | No. 87-556-Cr-ARONOVITZ.,87-556-Cr-ARONOVITZ. |
Parties | UNITED STATES of America, Plaintiff, v. Victoria SEVERICH, Defendant. |
Court | U.S. District Court — Southern District of Florida |
Robert Ciaffa, Asst. U.S. Atty., Miami, Fla., for U.S.
Faith Mesnekoff, Asst. Federal Public Defender, Miami, Fla., for defendant.
Defendant Victoria Severich was charged in a two-count Indictment with importation of at least 500 grams of cocaine in violation of Title 21 U.S.C. §§ 952(a) and 960(a)(1), as well as intent to distribute at least 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. This was an airport arrest at the Customs Enclosure wherein the defendant was found with packages of cocaine secured to her body. She entered a guilty plea to Count II of the Indictment, subject to a Plea Agreement. Thereafter, she filed an extensive Motion for an Order Declaring Amendments to Sentencing Provisions of 21 U.S.C. Sections 841 and 960 As Applied To Section 952 Invalid. This matter was referred to the Honorable Samuel J. Smargon, United States Magistrate, who received and examined extensive memoranda of law submitted by both sides.
The United States Magistrate has submitted a Report and Recommendation dated December 23, 1987 wherein he recommends that the Motion be denied. Defendant has filed Objections to that Report. As the United States Magistrate points out, this is a case of first impression, at least in this Circuit. Accordingly, the Court has, on its own initiative, carefully reviewed the Motion and memoranda of law submitted by the parties, the Court file herein, and has conducted its own independent review of the law. This Court concludes that the Report of the United States Magistrate is well-taken and clearly analyzes the law applicable and pertinent to the Motion. It correctly reflects that the attacked provisions are Constitutional. Accordingly, it is
ORDERED and ADJUDGED that the Report and Recommendation of the United States Magistrate, dated December 23, 1987, a copy of which is hereby appended to this Order, is hereby RATIFIED, AFFIRMED, APPROVED and ADOPTED as the Order of this Court. The Motion is DENIED and the attacked Sections of the Anti-Drug Abuse Act of 1986, Public Law # 99-570, are hereby found and declared to be Constitutional and valid, notwithstanding the attacks made thereon by the subject Motion.
Sentencing of the defendant Victoria Severich shall proceed at a sentencing hearing to be set by separate Order entered under even date herewith.
Defendant's Objections to the Report and Recommendation of the United States Magistrate be and they are hereby DENIED and OVERRULED.
December 23, 1987.
SAMUEL J. SMARGON, United States Magistrate.
This cause is before the Court upon defendant's motion for an order declaring unconstitutional the substantial assistance and minimum sentence provisions of the Anti-Drug Abuse Act of 1986. This cause was referred by the Honorable Sidney M. Aronovitz, United States District Judge, for a report and recommendation in accordance with 28 U.S.C. § 636.1
Defendant was charged by indictment returned in this District on August 18, 1987 with violation of 21 U.S.C. §§ 952(a), 960(a)(1) and 18 U.S.C. § 2 (Count I) and 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count II). Those charges stemmed from the August 9, 1987 discovery at the Miami International Airport by a United States Customs Inspector of four packages secured to defendant's stomach following her deplaning a Bolivia to Miami flight. The packages contained approximately eight pounds of cocaine.
On October 26, 1987, defendant agreed to plead guilty to Count II and in exchange the government agreed to dismiss Count I. Sentencing is scheduled for December 28, 1987, in anticipation of which defendant filed the instant motion. Her claims focus upon two sections of the Act which are reproduced, in relevant part, below:
Defendant contends that the Act is unconstitutional facially and as applied. A LEXIS search conducted on December 21, 1987 confirmed that defendant presents a case of first impression. We consider her arguments in turn.
The Supreme Court recently considered a facial challenge to Congress' Bail Reform Act. The Court's observation is instructive here.
Federal statutes, this Circuit has recognized, "are presumptively valid unless it be shown that the statute in question bears no rational relationship to a legitimate legislative purpose (citations omitted)." United States v. Middleton, 690 F.2d 820, 822 (11th Cir.1982), cert. denied, 460 U.S. 1051, 103 S.Ct. 1497, 75 L.Ed.2d 929 (1983). Those principles provide the standard against which defendants three grounds for invalidating the Anti-Drug Abuse Act of 1986 will be measured.
First, defendant contends that the substantial assistance provision is irreconcilably inconsistent with the Act's mandatory minimum sentencing provisions. She relies upon legislative history for expressions that mandatory minimum sentencing affords certainty by closing hatches from which major drug offenders formerly escaped prison terms, Motion at 4, and that judges are no longer permitted to suspend sentences once professional criminals are convicted, id. at 5. Instead, she asserts, the substantial assistance provision is a loop-hole to those expressions which permits a convicted drug offender to avoid the minimum mandatory penalty.
The government argues that rewarding assistance is crucial to the Act. It relies upon the President's recognition of the practical impossibility of prosecuting those at the highest level of the drug industry without such cooperation. Memorandum In Opposition at 5 ( ).
The Act's preamble expresses Congress' desire "to improve enforcement of Federal drug laws and enhance interdiction of illicit drug shipments," yet the legislative history appears silent as to any appropriate and articulated rationale for the substantial assistance feature. Nonetheless, the choice of enabling the courts to impose a sentence below a statutory minimum is not a wholly irrational means of accomplishing the declared objective of improved drug enforcement because Congress may have agreed with the President that effective prosecution of high level drug offenders is enhanced by inducing cooperation of lower level offenders. Under these circumstances, the substantial assistance and minimum mandatory sentence provisions of the Act are internally consistent, with the former operating as a Congressionally prescribed and limited means for avoiding the latter.2
Second, defendant contends that Congress' failure to define "substantial assistance" impermissibly confers upon the United States Attorney unreviewable discretion. Motion at 8. Similarly, the provision places an inherently judicial function in the executive. Id. at 9. Defendant argues, therefore, that the Act violates the doctrine of separation of powers.
Defendant relies for precedent principally upon Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). In Bowsher, the Supreme Court declared that the Balanced Budget and Emergency Deficit Control Act of 1985 violated the doctrine of separation of powers where the Congress reserved to itself the power of removal of the Comptroller General, an executive branch officer. The Court explained:
"To permit the execution of the laws to be vested in an officer answerable only to Congress would," the Court concluded, "in practical terms, reserve in Congress control over the execution of the laws." Id. at 3188.
It is unclear from defendant's argument why Congress is not perfectly free to permit the courts, upon motion filed by the United States Attorney pursuant to § 3553(e), to impose a sentence below the minimum which Congress itself prescribed for the offense. Neither Bowsher nor any other cases relied upon by defendant advance her proposition that the recommendation of the United States Attorney to impose a sentence below the minimum for a defendant who offered substantial assistance impermissibly permits executive interference in the sentencing...
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