Petition — Benish v. United States

MICHAEL RODAK, JR. CLERK |

SUPREME COURT OF THE

UNITED STATES

NO. A-514

TIMOTHY C. BENISH and MICHAEL GAICH

Petitioners

vs.

UNITED STATES

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Dante G. Bertani

Bertani, Myers & Makoski

Counsel for Petitioners

Room 214

Union Trust Building

Main Street

Greensburg, Pa.

ne | et OE or"

INDEX

TABLE OF CONTENTS

FELT EET OTE TEST eT Oe TTT ETT eTT TT Ee 3

ar RO ee ay 3

EE LI ee 4

Constitutional Provisions, Federal Statutes.......... 4

Rules and Regulations Involved

TERS ARS a le a a ee a 5

i oi a eee eee 6

Allowance of the Writ

ie eb a eee ER eeeneens 18

SEE cé¢tbudcdecdeeendendenabhsdenesssseuece 19

CITATIONS

Cases

Barrett vs. U.S., 322 F. 2d 292 (1963)............... 16

Ferry v. Ramsey, 277 U.S. 88 (S/14/28)............. 13

In Re: Winship, 397 U.S. 358 (1970) ................ 15

Leate ¥. U.5., See UB 6, GITBVEB) wc cc ccccccccces 13

23LEd 2d 57

Malloy v. Hogan, 378 U.S. 1, (6/15/64) ............. 15

12L d 2d 683

Morisette v. U.S., 322 U.S. 246 (1952) .............. 12

Morrison v. California, 291 U.S. 82 (1934)........... 13

Spevak v. Klein, 385 U.S. 511 (1967) ............... 15

ee Ge ee es SP FD occ ccccceccecensss 13

87 LEd 1519

Turner v. U.S., 396 U.S. 398 (1/20/70) ............. 13

24 L Ed 2 610

U.S. v. Fabsiazio, 193 F. Supp. 446... ........00008: 12

(Third Circuit, 1961)

kee RG errs 8

U.S. v. Giordano, 15 CRL 3033 (5/13/74)............ 17

U.S. v. Margraf 483 F. 2d 708 (1973)

Western & Alt. Ry. v. Henderson

279 U.S. 639 (1929)

FEDERAL STATUTES, RULES

AND REGULATIONS

Statutes

Comprehensive Drug Abuse and ..... tkeceneunans

Controi Act of 1970

Title 21 U.S.C.

Sec.

Sec

Sec.

Sec.

Sec.

SS ee Cee @ 8 @2@OCe 6.2 eeee ease @e eee ses oes ees eae eS a

Reorganization Plan No. 1 of 1968..................

Title 28 U.S.C.

Sec. 510

Sec. 1

SeCeeeeeeeese Cee aeseesee eoeegseeaeeCce ese ene ee 68 8 6.8 6 a

Pee eee |Cage 6s 62eae 6 eoeeeoee es Cee 80 Cana e © 0 6 6 eo

SBSeeegcse ee eee se ease 6 6

IN THE SUPREME COURT OF THE UNITED STATES

No. A-514

TIMOTHY C. BENISH and

MICHAEL GAICH

Petitioners

VS.

UNITED STATES

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Timothy C. Benish and Michael Gaich, petitioners pray

that a writ of certiorari issue to review the judgement of

the United States Court of Appeals for the Third Circuit,

centered in their respective cases, tried and reviewed

together and involving identical questions, entered in

this case October 15, 1975S affirming the judgement of

the United States District Court for the Western District

of Pennsylvania entered February 27, 1975.

OPINIONS BELOW

The opinions of the Court of Appeals and District Court

are not yet officially reported.

The opinions are reprinted in Appendix A & B.

JURISDICTION

The judgment of the Court of Appeals was entered on

3

October 15, 1975. On December 5, 1975, Mr. Justice

William J. Brennan, Jr., extended the time within which

to file a Petition for Writ of Certiorari to December 14,

1975. This Court has jurisdiction to review the judgment

by Writ of Certiorari pursuant to authority under 28

U.S.C. sec. 1254 (1).

QUESTIONS PRESENTED FOR REVIEW

I. Whether the procedure provided to establish a

substance as a dangerous drug violates the Constitu-

tional right of due process under the Fifth Amendment

to the Constitution of the United States?

Il. Whether the lack of effective notice of the addition of

a drug to a schedule as a controlled substance negates

the possibility of the defendants formulating a specific

intent necessary to perform an illegal act in violation of

the law?

Ill. Whether it is incumbent upon the Government to

prove the non-existence of excepting circumstances in its

case in chief where there is evidence brought forward

that the defendants may be excepted from the statute?

IV. Whether by the failure of the defendants to present

evidence of an appropriate registration or order form,

they can be presumed not to be holders of a registration

r order form?

V. Whether the establishing of phendimetrazine as a

Schedule III substance was done legally prusuant to

proper legislative authority?

CONSTITUTIONAL PROVISIONS, STATUTES

FEDERAL RULES AND REGULATIONS INVOLVED.

Constitutional Provision Involved:

The due process clause of the fifth

Amendment to the United States

Constitution

Statutes involved:

(1) Comprehensive Drug Abuse

and Control Act of 1970 Title 21

U.S.C. sec. 822 (a), 841 (a) (1),

885, 201, 811 (a) (d) (e) and 871.

(3) Reorganization Plan No. 1 of

1968, Title 28 U.S.C. secs. 509,

510.

Rules and Regulations Involved:

The Federal Register, Volume 38 No. 115. These

provisions are set forth in Appendix C attached hereto.

STATEMENT

Petitioners, Timothy C. Benish and Michael Gaich,

were charged with violations of the Comprehensive Drug

Abuse and Control Act of 1970 (21 U.S.C. sec. 841 (a) 1),

knowingly and intentionally *** dispensing a controlled

substance, and 18 U.S.C. sec. 2 as principal in each

allegation) on two separate occasions; on Court I alleged

to have occurred on July 25, 1973; your petitioners were

acquited; on Count Il (the subject of this Petition)

petitioners were charged with distributing, in August 1,

1973, 9,886 capsules of ‘‘Phendimetrazine a Schedule III

controlled substance, and petitioners were found guilty

of that charge after a non jury trial on June 27, 1974

before the Honorable Judge Edward Dumbald in the

United States District Court for the Western District of

Pennsylvania’”’

Motion for New Trial and/or Arrest of Judgment with

supporting Memorandum of Law on behalf of defendant

S

was timely filed. On February 27, 1975S the Trial Judge

denied and overrules defendant’s Motions and defen-

dant was directed to present himself for sentencing.

Both Petitioners, Timothy C. Benish and Michael

Gaich, were sentenced on April 29, 1975 to make 1/3

restitution of $12.00, pay a fine of $500.00 and be placed

on Probation for 2 years.

Petitioners timely appealed their convictions to the

United States Court of Appeals for the Third Circuit and

after argument on October 15, 1975 before a panel of

that Court, that Court affirmed the judgment of the

District Court:

Petitioners file this petition and request certiorari from

that order.

REASONS RELIED ON

FOR THE ALLOWANCE OF THE WRIT

The question most vital and compelling which the

petitioners raise in the present case goes to the very

heart of a system which cannot be permitted to grow so

huge and so distant from its people as to enact criminal

laws which effect its citizen's life and liberty without fair

and reasonable notice of what laws its citizens in the

future shall be compelled to obey.

This case squarely faces the issue can a government of,

for and by the people, establish a criminal liability upon

its citizens without due process of law. Can a drug be

added to that list of controlled substances under the

Comprehensive Drug Abuse and Control Act of 1970 on

June 15, 1973 with provision that permits registration of

any person who ‘‘manufactures, distributes, dispenses

***or who proposes to engage in the manufacture,

distribution, dispensing*+** of any of those substances,”’

6

on or before August 1, 1973, and then prosecute one who

has allegedly dispensed the substance on August 1,

1973, and at the same time impose criminal liability after

the date of June 15, 1973, except for any person who is

eutitled to register under the registration section. It

appears clearly the provisions of the regulation are

contradictory on its face and without question violative of

petitioners right to due process of law.

It is illogical, unjust, unfair, incomprehensible and

unconstitutional to presume that any citizen of the

United States of America can be subject to the whim and

fancy of the Director of the Bureau of Narcotics and

Dangerous Drugs whomever he may be and whatever

may be his personal prejudices or biases without a

reasonable intelligent effective notice as to what is being

designated as an illegal act. There is no difficulty

understanding that certain acts of man, are in violation

of his fellow mans right to life liberty and the pursuit of

happiness and may be designated as criminal offenses.

Any sensible, reasoning man knows to covet they

neighbors wife or goods or to kill thy neighbor is a crime.

But does every sensible reasoning man know that

phendimetrazine, benzphetamine, chlorphentermine,

diethylpropion, or trinitrotoluene are dangerous drugs

subjecting them to prosecution for possession or

delivery. Does notice in the Federal Register distributed

to special interest groups but not to the average citizen

give proper notice to warn the average citizen of its

message. I think not. For trinitrotoluene is not a listed

controlled substance but TNT. It is well established that

everyone is entitled to due process of law under the Fifth

Amendment but under the present practice of establish-

ing a controlled substance no one is afforded that right.

As ably put by Lord Coke and carved in the Granite of

the rotunda of the University of Pennsylvania, ‘‘The

Knowe Certaintie of the Law is the Safetie of All.”’

-

Knowledge of participation in an illegal transaction is

an essential element of an offense. In the present case

the burden was on the Government to prove the

defendants knowingly violated the law by delivering an

item knowing that it was in violation of the law to deliver

that item, as in United States v. Freed, 401 U.S. 91 St.

Ct. 1112 (1971) where the defendant was charged with

possession of an unregistered firearm by reason of

possession of unregistered hand grenades in violation of

26 U.S.C. 5812, although the statute there contains no

express intent requirement, the Court held, to convict,

the Government must prove knowing possession cf the

item and also knowledge that the item possessed were

hand grenades. In the present case the Government

never proved the items (phendimetrazine) were in fact

known to be phendimetrazine, a controlled substance.

Under the reasoning of the Freed case the Government

must prove defendant knew it to be a deadly weapon (in

the present case a controlled substance) this is

particularly applicable where as in United States v.

Margraf 483 F. 2d 708 (1973), the item is a pocket knife

and has a legitimate use and in the present case, where

as stated in the Federal Register Volume 38 the item is a

drug with a legal medical use and even more applicable

than in the Freed case because the criminal sanctions

section of the Act, Sec. 841 specifically requires

knowledge and intent; Sec. 841 states:

(a) Except as authorized by this

title, it shall be unlawful for any

person knowingly and inten-

tionally ***

(1) To manufacture, distribute or

dispense a controlled substance

(emphasis supplied).

The government failed to prove specific knowledge and

intent.

8

Petitioners - defendants contend that at the time of the

alleged distributions the federal regulation explicitly

permitted their alleged conduct. ;

Sec. 822 (a) of Title 21, U.S.C., the Comprehensive

Drug Abuse and Control Act of 1970, required the

registration of individuals manufacturing, distributing,

or dispensing drugs.

(a) Every person who manufactures, distributes,

or dispenses any controlled substance or who

proposes to engage in the manufacture,

distribution, or dispensing of any controlled

substance, shall obtain annually a registration

issued by the Attorney General in accordance

with the rules and regulations promulgated

by him. (emphasis added).

Failure to register subjects one to the criminal

sanctions of Sec. 841 of Title 21 U.S.C.

(a) Except as authorized by this title, it shall be

unlawful for any person knowingly and

intentionally -

(1) to manufacture, distribute, or dispense a

controlled substance. (emphasis added).

On May 9, 1973, in Volume 38, No. 89 of the Federal

Register, John E. Ingersoll, the Director of the Bureau of

Narcotics and Dangerous Drugs proposed regulations to

control phendimetrazine as a schedule III substance

pursuant to the authority of Sec. 822 (a) of Title 21,

U.S.C. On June 15, 1973, Mr. Ingersoll in Volume 38,

No. 11S of the Federal Register published his

determination to place phendimetrazine in Schedule III.

The effect of Mr. Ingersoll’s action was to make

phendimetrazine a controlled substance and thus made

activity conducted in regards to this drug subject to

possible criminal penalties. Before this date, phen-

dimetrazine was not a controlled substance and thus not

9

illegal to possess or distribute under the controlled

Substance Act Sec. 841 (a) (1), the regulation also gave

notice of the effective date of the enactment of the

regulation.

The requirement imposed upon the anoretic suustances

controlled by this order shall become effective as

follows:

1. Registration - Unless currently registered to

conduct that activity with Schedule III (or, in

the case of fenfluramine, Schedule IV) non

narcotic substances, or unless exempted from

registration by law, or pursuant to 301.24-

301.28 or 311.24-311.28 of Title 21 of the Code

of Federal Regulations, any person who

manufactures, distributes, dispenses, im-

ports, or exports benzphetamine, chlorphen-

termine, clotermine, fenfluramnne, mazindol,

and phendimetrazine, or who proposes to

engage in the manufacture, distribution, dis-

pensing, importation or exportation of any of

those substances, shall obtain a registration to

conduct that activity on or before August 1,

1973.

8. Criminal Liability - Any activity with ben-

zphetamine, chlorophentimine, clotermine,

fenfluramine, not authorized by, or in violation

of, the Controlled Substance Act or the

Controlled Substance Import and Export Act,

conducted after June 15, 1973, except that any

person who is not now registered to handle

these substances but who is entitled to

registration under those acts may continue to-

conduct normal business or professional

practice with those substances between the

date on which this order is published and the

date on which he obtains the proper registra-

tion. (emphasis supplied)

10

9. Other -In all other respects this order is

effective on June 15, 1973.

The regulation makes two substantial changes. For any

person who manufactures, dispenses, or distributes, or

who proposes to do so must register on or by August 1,

1973. Furthermore, any person who is not now

registered but who is entitled to register to handle these

substances may continue to conduct bus: -ss until he

obtains the proper registration.

From this regulation the petitioners submit two

contentions. First: the regulation expressly permits

anyone distributing these controlled substances or

proposing to distribute them to obtain a registration to

conduct such activity on or before August 1, 1973.

Second: Petitioners still had the express legal right to

obtain a registration, as of the date of their arrest or

discontinue any distribution of the controlled substance

after the registration deadline August 1, 1973.

Petitioners by an administrative decision on the part of

the Director of the Bureau of Narcotics and Dangerous

Drugs were excluded from the sanctions of the statute

until August 1, 1973. It is not a question of whether the

petitioners possess an exemption or exception and have

failed to demonstrate such an exemption. Rather the

statute is simply not applicable to them until after

August 1, 1973.

Additionally the petitioners contend that the govern-

ment failed to prove every element of the offense in

another aspect. Sec. 8 of the Effective Dates portion of

the regulations permits any person entitled to be

registered under the Act but not now registered to

continue in the normal cause of business until the proper

registration is obtained. Therefore the petitioners argue

that since no evidence to negate the fact that they are

entitled to register under the Act and therefore entitled

11

to continue to handle these substances, the Government

failed to meet its burden of proof.

Once evidence was adduced before the Trial Court

concerning the July 25, and August 1, 1973 dates, the

issue was raised in the petitioners behalf that they come

within the express permission of the regulations either to

obtain an appropriate registration or to continue to

handle the drug until the registration was obtained as

pointed out in United States v. Fabrizzio, 193 F. Supp.

446 (1961):

*** When evidence appears which tends to bring

the defendant within an exception, ***the burden

is upon the prosecution, on the whole case, to

overcome that evidence beyond a reasonable

doubt.

Petitioners argue that once the issue was raised that

circumstances existed which may except them from the

acts santions, it was incumbent on the government to

negative those excepting circumstances by showing an

intent not to obtain a registration or the fact that they

were not entitled to obtain a registration. No

presumption can be assumed by the Court that because

of a controlled substance, petitioners were not in fact

intending to obey the law. Such a presumption wouid

conflict with the overriding presumption of innocence

with which the law endows the accused and which

extends to every element of the crime, Morisette v.

United States, 322 U.S. 246, (1952).

IV

The very concept that petitioners can be presumed not

to be holders of a registration form flies in the face of the _

constitutional presumption of innocence, and presumes

an illegal act rather than petitioners constitutional right

to a presumption of a lega! act and conduct innocent

within the law and the confines of the Act.

12

Sec. 885 of Title 21, U.S.C. provides that the failure of

an accused to demonstrate that he possesses a proper

registration order form shall cause a presumption to

arise that the accused possessed no proper registration

or order form.

(b) In the absence of proof that a person is the

duly authorized holder of an appropriate

registration order form issued under this

subchapter, he shall be presumed not to be

the holder of such registration or form, and

the burden of going forward with evidence

with respect to such registration or form shall

be upon him.

The existence of a presumption in a criminal prosecu-

tion has been subject to various constitutional tests. In

Ferry v. Ramsey, 277 U.S. 88 the Court there created the

“greater includes the lesser’ test. If the legislature

could act to make the act itself a crime, then the

legislature could make the proof of the act presumptive

proof of an element of an offense. A second test

developed in Morrison v. California 291 U.S. 82 (1934)

held that based on the showing that a fact was more

convenient for the prosecution or for the defense to

produce, a statutory presumption could be placed on the

party for whom the production of such fact was more

convenient. Tot v. United States, 319 U.S. 463,

however, placed constitutional limitations upon both

these tests.

Furthermore, the more recent decisions of Leary v.

United States, 395, U.S. 6, and Turner v. United States,

396 U.S. 398, have completely overturned the former

standards for determining the constitutional validity of a

criminal presumption.

In the instant case the petitioners submit that proof of

the distribution of phendimetrazine cannot constitu-

13

tionally cause a presumption to arise so that it can be

said with substantial assurance that it is more likely than

not that the distributor is not the holder of the

appropriate registration or order form.

Petitioners contend the probable inference is that a

distributor of phendimetrazine would have the proper

registration, since it had medically accepted uses. The

Federal Register, Volume 38, No. 115 publishes the

conclusions of the Secretary of Health, Education, and

Welfare and the Director of the Bureau of Narcotics and

Dangerous Drugs concerning phendimetrazine.

The Director has concluded from his review of

the current situation that control of anorectic

including phendimetrazine, is desirable, at this

time to insure that they will not become widely

abused.

The Ayerst Laboratories has fully cooperated

with the Bureau and has consented to the place-

ment of phendimetrazine in Schedule III to insure

that it does not become subject to abuse in the

future. (emphasis added).

Thus the information now available in that phend-

imetrazine is not now known to be abused.

The Government's own chemist testified to the use of

phendimetrazine as a means to control weight.

Unlike the possession of marijuana or strictly halluc-

inogenic drugs for which there is no medical use and no

justification for possession except for infrequent

instances of scientific investigation, phendimetrazine

does have an accepted use.

Clearly then the real fact is that the distributor of

phendimetrazine is generally done in a legally accept-

able fashion. It is a drug not widely abused, and

therefore it must be presumed to be distributed for

medical reasons and not in violation of the law.

14

The presumption of Sec. 885 fails to pass constitutional

muster in other respects. the statute first causes the

presumption to arise not by proof but by the absence of

proof.’’ ‘‘In the absence of proof (a person)...shall be

presumed not to be the holder of such registration or

order form.’’ Thus the statute shifts the burden to the

petitioners to produce evidence and causes a presump-

tion to arise where the petitioners fail to present a

defense. The defendants argue that the presumption of

Sec. 885 violates their right not to incriminate them-

selves and their constituticnal right to due process.

Untess petitioners prepare a defense and explain their

legal right to a registration or order form, they suffer a

legal penalty. The penalty consists of a jury instruction

they are presumed not to be holder of the appropriate

registration or order form. This directly violates the rule

of Malloy v. Hogan, 378 U.S. 1, that the Fifth

Amendment guarantees that ‘‘the right of a person to

remain silent unless he chooses to speak in the

unfettered exercise of his own will and to suffer no pen-

alty...for his silence.’’ Spevak v. Klein, 385 U.S. 511

(1967) and Garrity v. New Jersey explained the penalty

consists of the “‘imposition of any sanction which makes

the assertion of the Fifth Amendment privilege

‘‘costly’’. ‘‘In the instant case the petitioners silence

causes them to be presumed to lack the proper regist-

ration and virtually assures their conviction.

The presumption of Sec. 885 also violates the consti-

tutional due process of petitioner by shifting the burden

of proof to the petitioners and effectively destroying

their presumption of innocence. Western and Atl. Ry v.

Henderson 279 U.S. 639 (1929). In re Winship, 397 U.S.

358, (1970). held, ‘‘that the Due Process Clause protests

the accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute

1S

the crime with which he is charged.’’ The (reasonable

doubt) standard provides concrete and substance for the

presumption of innocence, the bedrock axiomatic and

elementary principle whose enforcement lies at the

foundation of the administration of justice.”’

The presumption of innocence means that the defend-

ant cannot be required to take any affirmative action to

defend himself. Despite all the prosecution’s evidence,

he is entitled to do nothing in his own defense. As noted

by Judge Wisdom in Barrett v. United States, 322 F. 2d

292 (1963).

A person accused of a crime has more than the

right to present evidence. He has the consti-

tutional right to sit on his hands 322 F. 2d at 296.

In a criminal prosecution, non-action of the

defendant cannot be substituted for action upon

the part of the state’s case. Neither the burden of

proof nor the burden of proceeding with any

evidence to prove such case can be imposed upon

upon a party charged with a crime. Judge

Peaslee in State v. Lapointe, 81 N.H. 227, 123 A.

692, 696, 31 A.L.R. 1212 (1924).

Sec. 885 of Title 21, U.S.C. clearly violates ‘‘the un-

questioned policy of the criminal law...”’ that the burden

of proving beyond a reasonable doubt all facts necessary

to the defendants guilt’’ is upon the prosecution and not

one iota of burden is upon the defendant.

Vv

Did the Congress of the United States in enacting Sec.

201 (a) of the Comprehensive Drug Abuse Prevention

and Control Act of 1970 wherein it specifically delegated.

authority to the Attorney General of the United States to

place drugs on the controlled drug schedules intend that

authority to be exercised by anyone else or was its

language specific enough to evidence a desire that only

the Attorney General may add to the schedules of con-

16

trolled substances, as stated in the Act, at Section 811

(a), ‘‘The Attorney General shall***. Except as providec

in subactions (d) and (e) of this Section, The Attorney

General may by rule

(1) add te such a schedule or transfer between

such schedules any drugs or substance**s.

(emphasis supplied).

It is particularly enlightening to read this specific

delegation of authority since it was enacted after Sec.

871 of Title 21 U.S.C. and after Sec. 510 of Title 28

U.S.C. and after the Reorganization Plan No. 1 of 1968

(28 U.S.C. Sec. 509) which the Government contends

vested The Attorney General to delegate his authority to

‘any officer, employee, or agency of the Department of

Justice***, Can it be the Governments contention that

the Attorney General was even authorized to delegate,

this authority which Congress specificaily gave only to

him under the Act, to a janitor an employee of the

Department of Justice. The Supreme Court specifically

held in an analygous csituation in United States v.

Giordano, 15 CRL 3033 8/13/74) that notwithstanding a

section of the law giving general delegating authority, 28

U.S.C. Sec. 510 which authorized the Attorney General

to delegate his functions to any other officer, employee

or agency of the Justice Department that Section

2516 (1), dealing with wiretapping, fairly read, was

intended to limit the power to authorize wiretap applica-

tions to the Attorney General himself and to any

Assistant Attorney General.

It seems clear that in the instant case that a

Comprehensive Act designed to control drugs the

Congress was again limiting the Attorney Generals

delegative authority. The Court in Giordano held the

Governments argument that the general delegative

authority was sufficient to permit the Attorney General

17

to delegate his authority in that matter unexceptable and

went on to say that despite such a general delegative

section ‘Congress does not always contemplate that the

duties assigned to the Attorney General may be freely

delegated.”’

Congress could be no clearer than in the case at bar, it

gave that authority specifically to the Attorney General,

therefore the drug phendimetrazine was never legally

and properly established as a controlled substance.

CONCLUSION

For aii the foregoing reasons and primarily to prevent

the further and continued violation of every citizens right

to due process of law, so that every citizen may be

properly advised of the ‘‘known certaintie of the law,’’

this petition for a Writ of Certiorari should be granted.

Respectfully submitted

ut. Ste

DANTE G. BERTANI

Counsel for Petitioners

18

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Nos. 75-1578/1579

UNITED STATES OF AMERICA

Vv,

TIMOTHY C. BENISH

ROBERT H. SISCO

MICHAEL GAICH

TIMOTHY C. BENISH, Appellant in No. 75-1578

MICHAEL GAICH, Appellant in No. 75-1579

Appeal from the United States District Court

for the Western District of Pennsylvania

(District Court Criminal Action No. 73-280)

Argued October 15, 1975

Before: ALDISERT, FORMAN and ADAMS,

Circuit Judges.

JUDGMENT ORDER

After considering the contentions raised by appellants,

to-wit, that the court erred: (1) in that the Government

failed to prove the non-existence of excepting circum-

stances in its case in chief whete there is evidence

brought forward that the appellants may be excepted

from the statute; (2) in presuming that appellants were

not holders of an appropriate registration or order form;

(3) in permitting establishing of phendimetrazine as a

Schedule III substance without proper legislative

19

authority; (4) in permitting a conviction when the

Government failed to prove every essential element of its

case against the appellants; (5) in permitting a

conviction in the face of lack of effective notice of the

addition of a drug to a schedule as a controlled substance

which negated the possibility of the appellants for-

mulating a specific intent necessary to perform an illegal

act in violation of the law and (6) in permitting a con-

viction in the face of a procedure provided to establish a

substance as a dangerous controlled drug contended to

violate appellants’ right to due process under the Fifth

Amendment to the Constitution of the United States; it is

ADJUDGED AND ORDERED that the judgment of the

district court be and is hereby affirmed.

BY THE COURT

/s/ Aldisert

Circuit Judge

Attest:

/s/ Thomas F. Quinn

Thomas F. Quinn, Clerk

DATED: Oct. 15, 1975

Certified as a true copy and issued in lieu

of a formal mandate on November 6, 1975.

Test: Thomas F. Quinn

Clerk, United States Court of Appeals

for the Third Circuit

20

n>

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA

Plaintiff,

Criminal No. 73-280

Vv

TIMOTHY C. BENISH and

MICHAEL GAICH

Defendants.

OPINION

Dumbauld, J.

Defendants, following a non-jury trial, were con-

victed of the charges contained in Count 2 of the Indict-

ment (but acquitted under Count 1, relating to trans-

actions on a different date). Count 2 charged violation of

21 U.S.C. 841 (a) (1) on or about August 1, 1973, in that

defendants distributed 9,886 capsules of ‘*‘Phendime-

trazine, a Schedule III controlled substance.’’ Motions

in arrest of judgment, or for new trial, are pending.

The so-called ‘‘Comprehensive Drug Abuse Pre-

vention and Control Act of 1970’’ established five classes

of ‘controlled substances.’’ Schedule III included drugs

having less ‘‘potential for abuse’ than those specified in

Schedules I and II. 21 U.S.C. 812 (c) established an in-

itial list of Schedule III drugs, and by 21 U.S.C. 811(a)

the Attorney General was empowered “‘by rule’’ to add

to any Schedule ‘‘any drug or other substance’’ if he

finds ‘‘that such drug or other substance has a potential

for abuse.’’ Such ‘‘rules’’ must be formulated pursuant

to the rulemaking procedures of the Administrative

21

Procedure Act (5 U.S.C. 551 et seg.) which require due

notice, hearing, and the like (5 U.S.C. 553).

Defendants contend that the Attorney General must

act personally in order to add a new substance, such as

phendimetrazine, to Schedule III, relying upon U.S. v.

GIORDANO, 416 U.S. 50S, 510, 513-16 (1974). At the

request of the Court this issue was briefed by the

parties.

However, we are confirmed in our initial impression

that GIORDANO is inapplicable here. That case related

to the authorization of wire-tapping, which is commonly~

regarded as an improper ‘‘dirty business’’ except under

unusual conditions. Accordingly Congress insisted that

such activities be engaged in only pursuant to ‘‘the

mature judgment of a particular, responsible Depart-

ment of Justice official.’’ Hence 18 U.S.C. 2516

specified that authority to permit wire-taps should be

vested in a smail circle of specifically enumerated

officials, namely ‘‘the Attorney General, or any Assis-

tant Attorney General specially designated by the

Attorney General.’’

In the case at bar, however, we do not confront a

situation involving delicate policy issues of law enforce-

ment. We face a technical chemical problem. It would

truly be incongruous to trust the personal professional

opinion of any lawyer on such a question’rather than the

judgment of a qualified hearing examiner in a unit estab-

lished to deal with such technical questions. This is

especially true when the action must be taken ‘‘by rule”’

under the requirements of the Administrative Procedure

Act. It would be strange if Congress had meant to

1 Either immoral, illegal, or unconstitutional, as the case may be.

See OLMSTEAD v. U.S., 277 U.S. 438, 470 (1928); IN RE

MARCUS, 491 F. 2d 901, 903-904 (C.A. 1, 1974); KATZ v. U.S.

389 U.S. 347, 353 (1967).

22

-

require a Cabinet officer to devote his days to protracted

hearings on technical questions, such as the proper

amount of peanuts to be included as an ingredient of

peanut butter? or the potentiality for abuse of particular

varieties of drugs (or even their safety or efficacy).

We therefore conclude that phendimentrazine is

indeed a Schedule III controlled substance. It became

such on June 15, 1973, pursuant to an order, dated June

12, 1973, signed by John E. Ingersoll, Director of the

Bureau of Narcotics and Dangerous Drugs in the Depart-

ment of Justice‘ and published in the Federal Register of

June 15, 1973 (Vol. 38 No. 115, pp. 18719-22).

Paragraph | of the provisions in the order of June 15,

1973, regarding effective dates, required persons

distributing or proposing to distribute phendimentrazine

to ‘‘obtain a registration to conduct that activity on or be-

fore August 1, 1973.”’

Paragraph 8 subjected to criminal liability any

activity with said drug not authorized by, or in violation

of, the Act of 1970, occuring after June 15, 1973, except

that any person not registered ‘‘but who is entitled to

registration ‘‘may’’ continue to conduct normal business

or professional practice with those substances between

the date on which this order is published and the date on

which he obtains the proper registration.”’

2 Although judges must decide patent cases. See Henry J.

Friendly, FEDERAi JURISDICTION: A GENERAL VIEW

(1973) 156-57.

3 Joseph C. Goulden, THE SUPERLAWYERS (1972) 186-87;

Richard A. Merrill and Earl M. Collier, Jr., ‘‘Like Mother Used

to Make’’: An Analysis of FDA Food Standards of Identity,’’ 74

Col. L.R. (May, 1974) 561, 585-91; CORN PRODUCTS CO. v.

DEPT. OF H.E.W., 427 F. 2d Sil (C.A. 3, 1970). The

administrative proceedings began in 1959 and ended in 1968.

23

Defendants contend that this ‘‘grandfather clause’

made their dealings in phendimetrazine legal up until

August 1, 1973.

Disregarding complexities regarding computation of

time it suffices to point out that the Indictment alleges

that the offense occurred on or about August 1, 1973,

and that the regulation required registration ‘‘on or

before August 1, 1973."’ There is no evidence in the

record either that defendants had obtained (or had even

applied for) registration before August 2 succeeded

August 1 in history. Nor is there any evidence that

defendants during the period between June 15, 1973,

and August 1, 1973, were ‘‘entitled to registration’’ per-

mitting them to handle phendimetrazine ©

THE DIRECTOR’S AUTHORITY IS ESTABLISHED BY 21

U.S.C. 871, 28 U.S.C. 510, Reorganization plan No. 2 of 1973 (28

U.S.C. 209, pocket part); and Section 0.100 of Title 18 CFR,

which provides:

$0.100 General Functions |

Subject to the general supervision of the Attorney General,

and under the direction of the Deputy Attorney general, the

following described matters are assigned to, and shall be

conducted, handled, or supervised by, the Administrator of

the Drug Enforcement Administration:

(a) Functions vested in the Attorney General by sections 1

and 2 of Reorganization Plan No. 1 of 1968.

(b) Functions vested in the Attorney General by the

Comprehensive Drug Abuse Prevention and Control Act of

1970.

(c) Functions vested in the Attorney General by section 1 of

Reorganization Plan No. 2 of 1973 and not otherwise

specifically assigned.

5 See Rule 45 (a) FRCrP, and the common law rule that fractions of

a day are to be disregarded.

6 By the time of trial in 1974 the existence VEL NON of registra-

tion by August 1, 1973, should have been easy to prove.

24

Defendants contend that it was the burden of the

Government ot establish their non-entitlement as part of

the crime.

The Act of 1970 provides that a person distributing or

proposing to distribute a controlled substance must ob-

tain a registration, which authorized them to engage in

such activity. 21 U.S.C. 822. Knowingly and intention-

ally to distribute a controlled substance except as

authorized by the Act is made criminal by 21 U.S.C. 841

(a).

It is provided in 21 U.S.C. 885 (a) (1) that the Govern-

ment need not negative any statutory exemption or

exception in any indictment or in any trial, but that ‘‘the

burden of going forward with the evidence with respect

to any such exemption or exception shall be upon the

person claiming its benefit.’’

It will be noted that this is a purely procedural pre-

sumption. It places on the defendants (who are pre-

sumably most familar with and best able to demonstrate

their own qualifications and efforts to obtain registra-

tion) to go forward with the evidence. It does not estab-

lish any irrebuttable presumption, which might be re-

garded as a substantive rule of law like the ‘‘parol

evidence rule.’’

Hence this fully rebuttable and procedural presump-

tion is not subject to the due process condemnation of

the types of presumption involved in the cases on which

defendants rely: TOT v. U.S., 319 U.S. 463, 466-68

(1943); Leary v. U.S., 395 U.S. 6, 36-37 (1969). Cf.

Turner v.U.S., 396 U.S. 398, 408, 423 (1970). See also

‘The Irrebuttable Presumption Doctrine in the Supreme

Court’’, 87 Harv. L.R. (May, 1974) 1534-56.

Accordingly, defendants’ motions are overruled, and

they are directed to present themselves for sentence in

due course.

25

ORDER

AND NOW, this 27th day of February, 1975, upon

consideration of defendants’ motions in arrest of judg-

ment and for new trial, for the reasons set forth in the

foregoing opinion.

IT IS ORDERED that said motions be and they

hereby are denied and overruled, and defendants are

directed to present themselves in due course for

sentence.

/s/ Dumbauld

United States District Judge

Richard L. Thornburgh, Esq.

United States Attorney

Pittsburgh, Pa. 15219

Bertani, Myers & Makoski

Attorneys-at-Law

Union Trust Building

100 North Main Street

Greensburg, Pa. 15601

26

Pe

APPENDIX C

AMENDMENT V

CONSTITUTION OF THE UNITED STATES

‘‘No person shall***be deprived of life, liberty or

property without due process of law.’’

STATUTES

Comprehensive Drug Abuse and Control Act of 1970.

Title 21 U.S.C.

Sec. 822 (a)

(a) Every person who manufactures,

distributes, or dispenses ANY CON-

TROLLED SUBSTANCE or who pro-

poses to engage in the manufacture,

distribution, or dispensing of ANY

CONTROLLED SUBSTANCE, shall

obtain annually a registration issued

by the Attorney General in accord-

ance with the rules and regulations

promulgated by him. (emphasis

added).

Sec. 841 (a) (1)

(a) EXCEPT as authorized by this title, it

shall be unlawful for any person

KNOWINGLY AND _ INTENTION-

ALLY

(1) to manufacture, distribute, or dis-

pense a CONTROLLED SUBSTANCE

(emphasis added).

27

Sec. 885

(a) (1) It shall NOT be necessary, for the

(b)

(a)

United States to negative any

exemption or exception set forth

in this subchapter in any com-

plaint, information, indictment, or

other pleading or IN ANY TRIAL,

hearing, or other proceeding un-

der this subchapter and the

BURDEN OF GOING FORWARD

WITH THE EVIDENCE WITH

RESPECT TO ANY SUCH EX-

EMPTION OR EXCEPTION

SHALL BE UPON THE PERSON

CLAIMING ITS BENEFIT.

IN THE ABSENCE OF PROOF THAT

A PERSON IS THE DULY AUTHOR-

IZED HOLDER OF AN APPROPR-

IATE REGISTRATION OR ORDER

FORM ISSUED UNDER THIS SUB-

CHAPTER, HE SHALL BE PRE-

SUMED NOT TO BE THE HOLDER

OF SUCH REGISTRATION OR

FORM, AND THE BURDEN OF

GOING FORWARD WITH THE

EVIDENCE WITH RESPECT TO

SUCH REGISTRATION OR FORM

SHALL BE UPON HIM. (emphasis

added)

Sec. 811 (a)

THE ATTORNEY GENERAL SHALL

APPLY the provisions of this sub-

chapter to the controlled substances

listed in the schedules established by

28

section 812 of this title and to any

other drug or other substance

ADDED to such schedules under this

subchapter. Except as provided in

subsection (d) and (e) of this section,

THE ATTORNEY GENERAL MAY

BY RULE --

(1) ADD TO SUCH A SCHEDULE or

transfer between such _ schedules

ANY DRUG OR SUBSTANCE IF

HE-.-

(A_ find that such drug or other sub-

stance has a potential for abuse, and

(B_ makes with respect to such drug

or other substance the findings pre-

scribed by subsection (b) of section

812 of this title for the schedule in

which such drug is to be placed; or

(2) remove any drug or other sub-

stance form the schedule if he finds

that the drug or other substance

does not meet the requirements for

inclusion in any schedule.

Rules of the Attorney General under this

subsection shall be made on the record

after opportunity for a hearing pursuant

to the rulemaking procedures prescribed

by subchapter II of chapter 5 of Title S.

Proceedings for the issuance, amend-

ment, or repeal of such rules may be

initiated by the Attorney General (1) on

his own motion, (2) at the request of the

Secretary, or (3) on the petition of any

interested party. (emphasis added)

29

es SE Ea

Sec. 871 metrizine, or who proposes to engage

(a) The Attorney General may delegate in the manufacture, distribution, dis-

any of his functions under this sub- pensing, importation, or exportation

chapter to any officer or empioyee of | of any of those substances, shall

Department of Justice. obtain a registration to conduct that

Reorganization Plan No. 1 of 1968 activity on or before August 1, 1973.

Title 28 U.S.C. (emphasis supplied)

8. CRIMINAL LIABILITY - Any activity

Sec. 510

The Attorney General may from time

to time make such provisions as he

considers appropriate authorizing the

performance by any officer, employee

or agency of the Department of

Justice of any function of the At-

torney General.

The Federal Register Volume 28, No. 115

Sec. 1, 8,9

with benzphetamine, chlorphenter-

mine, clortermine, fenfluramine,

mazindol, and phendimetrizine, not

authorized by, or in violation of the

Controlled Substances Act or the

Controlled Substances Import and

Export Act, conducted after June 15,

1973, shall be unlawful, except that

any person who is not now registered

to handle these substances but who is

entitled to registration under those

acts may continue to conduct normal

The requirements imposed upon the

a pmo baa nd om those substances between the date

order shall become effective as folows: on which this order is published and

1. REGISTRATION - Unless currently the date on which he obtains the

business or professional practice with

registered to conduct that activity

with Schedule III (or in the case of

fenfluramine, Schedule IV) non-nar-

cotic substances, or unless exempted

from registration by law, or pursuant

to 301.24 - 301.28 or 311.24 - 311.28

of Title 21 of the Code of Federal

Regulations, anv person who manu-

factures, distrioutes, dispenses, im-

ports, or exports benzphetamine,

chlorphentermine, clortermine, fen-

fluramine, mazindel, and phendi-

30

proper registration.

. OTHER - In all other respects, this

order is effective on June 15, 1973.

Dated June 12, 1973.

31