Weissman v. United States

• Citation: 373 F.2d 799
• Decision Date: 17 February 1967
• Docket Number: No. 19974.,19974.
• Parties: Sharon Jeanne WEISSMAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

373 F.2d 799 (1967)

Sharon Jeanne WEISSMAN, Appellant, v. UNITED STATES of America, Appellee.

No. 19974.

United States Court of Appeals Ninth Circuit.

February 17, 1967.

Peter J. Hughes, of Sheela, O'Laughlin, Hughes & Hunter, San Diego, Cal., for appellant.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Div., J. Brin Schulman, Asst. U. S. Atty., Asst. Chief, Crim. Div., Phillip W. Johnson, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before CHAMBERS and ELY, Circuit Judges, and TAVARES, District Judge.

TAVARES, District Judge.

Appellant was convicted by a jury of a violation of 18 U.S.C. § 1407, which provides in material part that:

"* * * no citizen of the United States who is addicted to or uses narcotic drugs * * * shall depart from or enter into * * * the United States, unless such person registers * * * with a customs official * * at a point of entry or a border customs station. * * * such customs official * * * shall issue a certificate to any such person departing from the United States; and such person shall, upon returning to the United States, surrender such certificate to the customs official * * * present at the port of entry or border customs station." (emphasis added)

The jury specifically found, however, that at the time of the commission of the offense, appellant was a user of narcotic drugs, but was not addicted to narcotic drugs.

Appellant challenges the constitutionality of 18 U.S.C. § 1407, contending:

(1) that the phrase covering one who "uses narcotic drugs" is void for vagueness;

(2) that compliance with the section would contravene the privilege against self-incrimination; and

(3) that the burdens of the section constitute cruel and unusual punishment.

As will appear later, inasmuch as our decision on the first point is dispositive of the entire case, we do not reach the last two contentions.

The constitutionality of § 1407 has been sustained against similar attack by a defendant "addicted to" narcotic drugs. United States v. Eramdjian, S.D.Cal.1957, 155 F.Supp. 914, cited with approval in Reyes v. United States, 9 Cir. 1958, 258 F.2d 774. See also Palma v. United States, 5 Cir. 1958, 261 F.2d 93. In Reyes the statute's constitutionality was unsuccessfully attacked by two defendants, one of whom had been convicted of violation of a narcotic law and the other who admitted, not only that he previously had been convicted for addiction, but also that, on the day of his entry into the United States, he had used narcotics. The effect of the section in its attempted application to a defendant alleged to be a "user" has remained undecided, expressly so in United States v. Eramdjian, supra, wherein the court wrote:

"Since no defendant in our cases has been charged merely as a `user,\' none are entitled to raise the question of the scope of the words `uses narcotic drugs\' standing alone. We will decide this problem if and when it arises." 155 F. Supp. at 931.

Although the Court has examined numerous precedents for the application of the void-for-vagueness doctrine, including those cited by counsel, precedents do not offer a sure guide to its proper application. See the excellent and extensive note entitled "The Void-for-vagueness Doctrine" 109 U.Pa.L.Rev. 67 (1960). The Supreme Court itself recognized this difficulty in Connally v. General Construction Company (1926), 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322:

"The question whether given legislative enactments have been thus wanting in certainty has frequently been before this court. In some of the cases the statutes involved were upheld; in others, declared invalid. The precise point of differentiation in some instances is not easy of statement."

But the opinion in the Connally case goes on to enunciate the following guidelines:

"* * * the decisions of the court upholding statutes as sufficiently certain, rested upon the conclusion that they employed words or phrases having a technical or other special meaning, well enough known to enable those within their reach to correctly apply them, Hygrade Provision Co. v. Sherman, 266 U.S. 497, 502, 45 S.Ct. 141, 69 L.Ed. 402; Omaechevarria v. State of Idaho, 246 U.S. 343, 348, 38 S. Ct. 323, 62 L.Ed. 763, or a well-settled common law meaning, notwithstanding an element of degree in the definition as to which estimates might differ, Nash v. United States, 229 U.S. 373, 376, 33 S.Ct. 780, 57 L.Ed. 1232; International Harvester Co. of America v. Commonwealth of Kentucky, supra, 234 U.S. 216, p. 223, 34 S.Ct. 853, 58 L.Ed. 1284, or, as broadly stated by Mr. Chief Justice White in United States v. L. Cohen Grocery Co., 255 U.S. 81, 92, 41 S.Ct. 298, 65 L.Ed. 516, `that, for reasons found to result either from the text of the statutes involved or the subjects with which they dealt, a standard of some sort was afforded.\'" 269 U.S. at 391-392, 46 S.Ct. at 127.

Applying the foregoing principles to the language of the challenged statute, the conclusion is inevitable that the phrase a "user of narcotic drugs," or the phrase who "uses narcotic drugs" (both being used interchangeably herein), has no definite meaning, either technically or at common law.

It is also apparent that nothing in the text of the statute or in the subject matter with which it deals, provides a standard of any kind for the guidance of individuals seeking to comply with the statute.

No common-law meaning has been suggested for the phrase "user of narcotic drugs" and research has revealed none.

Nor does it appear that the phrase has a technical meaning.¹ The court has also examined various technical books² relating to the field of narcotic drugs, including the following which were mentioned by counsel for defendant in his cross-examination of Dr. Salerno:

(1) "Narcotics and Narcotic Addiction," by Drs. Maurer and Vogel;

(2) "Drug Addiction," by Dr. Lawrence Kolb, Assistant Surgeon General (Retired), United States Public Health Service;

(3) "The Drug Addict as a Patient," by Dr. Marie Nyswander; and

(4) "Drug Addiction — Crime or Disease? Interim and Final Reports of the Joint Committee of the American Bar Association and the American Medical Association on Narcotic Drugs."

The concensus of these and other authorities is that drug addiction is a distinct medical entity, but that there is no definite or recognizable category of "drug user."

The California District Court of Appeal reached the same conclusion in substance in the case of McMurtry v. Board of Medical Examiners, cited in note 2, supra. There the court was reviewing an order of the Board of Medical Examiners revoking a physician's license to practice, for his failure to comply with a California statute that required a physician to report his furnishing narcotics to a "habitual user." The court concluded (180 Cal.App.2d p. 770, 4 Cal.Rptr. p. 916):

"The requirement that a physician shall report the giving of a narcotic prescription to a person who frequently uses narcotics gives the physician no reasonable standard for compliance. There is no criterion by which the physician can determine how many instances of narcotics use must transpire before a patient becomes a frequent user."

Although 18 U.S.C. § 1407 by its terms exempts from its provision persons who use narcotic drugs that are furnished, prescribed or administered by a licensed physician to a patient as a result of sickness, accident or injury, the statute does not take into account the vast quantities of narcotic drugs that are legally sold without prescription. The latter include preparations containing: not more than two grains of opium per ounce; or, not more than one-fourth grain of morphine (or any of its salts) per ounce; or, not more than one grain of codeine (or any of its salts) per ounce; or, not more than one-half grain of dihydrocodeine (or any of its salts) per ounce; or, not more than one-fourth grain of ethylmorphine (or any of its salts) per ounce; or preparations in liquid or solid forms containing not more than 2.5 milograms of diphenoxylate and not less than 25 micrograms of atropine sulphate per dosage unit; plus preparations that may include unlimited quantities of: narcotine, papaverine, narceine, cotarnine or nalorphine. See "Drugs subject to Federal Narcotic Laws," General Circular No. 265, Treasury Department, Bureau of Narcotics, January 7, 1965.

In most, if not all, cases in which the question was squarely and necessarily presented and required to be decided, and in which the federal courts have refused to apply the "void-for-vagueness" doctrine to invalidate a statute, we believe that it will be found that the parties in whose behalf the unconstitutional vagueness was claimed, fell clearly within the terms of the statute, and it was also found expressly or by necessary implication, that there existed a practical possibility of drawing the line by construction at some definite point to exclude others whose inclusion might render the statute void for vagueness.

In the instant case the term "user of narcotics" is unrestricted and general.

If we attempt to ascertain the meaning of the term "user" in a standard dictionary, or in the legion of cases attempting to define that term or other forms of the word "use" in various connections, we find that the term "user of narcotics" can, not unreasonably, be considered to include any of a large number of types of use of a narcotic drug. Even if we undertake, by judicial construction (based on our surmise as to the general intent of Congress or on the context of the statute)³ to limit the term "user of narcotics" only to those who receive the narcotics internally (that is, within their own bodies) by ingestion through the mouth or by application to the mucous membranes, or by intravenous injection (thereby excluding by construction (a) persons who "use" the drug by merely buying, selling, distributing, or possessing it, and (b) persons who use some form of the drug merely...