Petition — Fry v. United States

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1977

No:

ROGER ALLSTAIR WILLIAMS FRY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF

CERTIORARI TO THE

9g

Supreme Court, U. S.

FiuLED

SEP 26 1977

MICHAEL ROD:

ERK

Wz" 475 *

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Law Offices of

BARRY TARLOW

911 Sunset Boulevard

Los Angeles, California 90069

(213) 278-2111

Attorneys for Petitioner

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1977

No:

ROGER ALLSTAIR WILLIAMS FRY,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF

CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Law Offices of

BARRY TARLOW

911 Sunset Boulevard

Los Angeles, California 90069

(213) 278-2111

Attorneys for Petitioner

TOPICAL INDEX

Table of Authorities

OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS

STATUTORY PROVISIONS

STATEMENT

1. Proceedings Below

2. Jurisdiction

3. Facts

ARGUMENT

CONCLUSION

APPENDIX A (ORDER OF THE

COURT OF APPEALS)

APPENDIX B (TEXT OF 21 U.S.C.

§812)

TABLE OF AUTHORITIES

Federal

Bridges v. United States 36

346 U.S. 209 (1952)

Brown v. Board of Education 29

347 U.S. 483 (1954)

Carmona v. Ward 18

F, Supp. (S.D.N.Y¥. 1977)

(21 Crim L. Rptr. 1085)

Chastleton Corp. v. Sinclair 28

264 U.S. 543 (1924)

Downey v. Perini 15

518 F.2d 1288 (6th Cir. 1975)

(vacated and remanded sub.

nom. Perini v. Downey, 96

S. CT. 419 (1975)

Harper v. Virginia Board of Elections 3292

383 U.S. 663 (1966)

Leary v. United States 28

396 U.S. 6 (1969)

Milnot Company v. Richardson 13

350 F. Supp. 221 (S.D. Ill. 1972)

Milnot Company v. Arkansas State Board j3

of Health

338 F. Supp. 901 (E.D. Ark. 1975)

ii

Skinner v. Oklahoma

316 U.S. 535 (1942)

UnitedStates v. Carolene Products

304 U.S. 144 (1938)

UnitedStates v. Carolene Products

323 U.S. 18 (1944)

United States v. Kiffer

477 F.2d 349 (2nd Cir. 1973)

United States v. Maiden

355 F. Supp. 743 (D. Conn. 1973)

United States v. Provenzano

423 F. Supp. 662 (S.D.N.Y. 1976)

Warden v. Marrero

417 U.S. 653 ( 1974)

Weems v. United States

217 U.S.-349 (1910)

State

Hogan v. Bohan ;

113 N.Y¥.S. 2d 280 (1952)

In re Foss

10 Cal. 3d 1 (1974)

In re Grant

18 Cal. 3d 910 (1976)

iii

23

13, 30

13

25

15, 25

36

35-36

15

33

15

15

People v. Lorentzen

387 Mich. 167, 194 N.W. 2d 827 (1972) ‘3

People v. McCabe 30

Ill. 275 N.E. 2d 407(1971)

People v. Ruiz 15

49 Cal. App. 3d 730 (1975)

State v. Broadie

N.Y.S. 2d , 332 N.E. 24 338 (1993)

State v. McCoy 32

94 Idaho 236 (1971)

Statutes

5-36

1 U.S.C. §109 so~9

18 U.S.C.§3651 3

-36

18 U.S.C.§4202 34

-24

21 U.S.C.§812 21

21 U.S.C.§848 passin.

iv

IN THE

SUPREME COURT

OF THE UNITED STATES

October Term, 1977

No:

ROGER ALLSTAIR WILLIAMS FRY,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF

CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Roger Fry respectfully petitions for

a writ of certiorari to review the judg-

ment of the United States Court of Appeals

for the Sixth Circuit in this case.

OPINION BELOW

The judgment of the United States

Court of Appeals for the Sixth Circuit in

this case was delivered by written Order,

not reported, a copy of which is appended

to this petition.

JURISDICTION

The judgment of the Court of Appeals

was entered on June 27, 1977; a petition

for rehearing and suggestion for rehear-

ing in banc was denied on August 25,

1977. The jurisdiction of this Court is

invoked under 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

he Is 21 U.S.C. §848 unconstitu-

tional as APPLIED TO CONDUCT INVOLVING

ONLY MARIJUANA?

A. Is due process violated

by the application of the criminal sanc-

tions contained in 21 U.S.C. §848 to con-

duct involving only marijuana?

B. Was petitioner denied due

process of law by the trial court's

denial of petitioner's motion to hold an

evidentiary hearing to demonstrate the

absence of harmful medical or social

effects of marijuana, where petitioner's

motion was accompanied by an offer of

proof which, if unrebutted, would have

established the absence of any rational

basis for including marijuana offenses

within the reach of 21 U.S.C. §848.

2. IS 21 U.S.C. §848 UNCONSTITU-

TIONAL IN THAT ITS PENALTY PROVISION IN-

FLICTS CRUEL AND UNUSUAL PUNISHMENT WHEN

APPLIED TO CONDUCT INVOLVING ONLY MARI-

JUANA?

A. Is the punishment provided

for by 21 U.S.C. §848 cruel and unusual

as applied to marijuana offenses, given

the nature of the offense and the lack

of danger to society.

B. Is the penalty provision

of 21 U.S.C. §848 disproportionate to the

penalties imposed for similar offenses

in other jurisdictions?

C. Is the penalty provision

of 21. U.S.C. §848 as. applied to mari-

juana offenses grossly disproportionate

to penalties applicable to other federal

crimes?

Se Does 21 U.S.C. §848 violate

equal protection guarantees in that its

penalty provision inflicts the same extre-

mely severe punishment for conduct invol-

ving only marijuana as provided for heroin,

cocaine and other narcotic drugs.

A. Have marijuana offenses

been arbitrarily and irrationally classi-

fied with heroin and other narcotics

offenses for prosecution and punishment

under §848?

B. Should marijuana be classi-

fied, if at all, as a schedule V drug,

outside the reach of 21 U.S.C. §848?

Cc. Did the trial court erron-

eously deny petitioner's motion for an

evidentiary hearing to demonstrate the

existing misclassification of marijuana,

where petitioner's motion was accompanied

by an offer of proof which, if unrebutted,

3.

would have established the arbitrariness

of the inclusion of marijuana offenses

within the reach of §848?

4. Did the trial court's denial of

an evidentiary hearing regarding the

medical and social effects of marijuana,

when such motion was accompanied by an

extensive offer of proof, constitute a

denial of due process in that petitioner

was foreclosed from establishing the fac-

tual basis for the constitutional attacks

on 21 U.S.C. §848, as set forth in ques-

tions No. 1-3 above.

S. Is 21 U.S.C. §848 unconstitu-

tional in that its sentencing provision

violates the separation of powers mandate

by foreclosing both judicial and execu-

tive exercises of their probation or

parole authority?

6. As a matter of statutory con-

struction, wherever statute 21 U.S.C.

§848 refers to a specific separate stat-

ute (18 U.S.C. §4202) and excludes its

application, what effect does the repeal

of the referenced statute (18 U.S.C.

§4202) have on the subsequent operation

of the referring statute (21 U.S.C. §848).

A. Is the "no parole” provi-

sion of petitioner's sentence invalid in

that 18. U.S.C. §4202, the parole provi-

sion was declared inapplicable to sen-

tences imposed under §848, and was re-

pealed prior to the imposition of appel-

lant's sentence?

B. The repealed statute, 18

4.

U.S.C. §4202 did not inflict a "penalty

liability of forfeiture" and was there-

fore not "saved" by the provisions of

1 U.S.C. §109, nor in the holdings of

Warden v. Marrero, 417 U.S. 653, (1974)

oF paper: United States, 410 U.S. 605

(1973).

on The repealed statute (18

U.S.C. §4202) had not been incorporated

by reference into 21 U.S.C. §848.

CONSTITUTIONAL PROVISIONS

The Fifth Amendment to the United

States Constitution provides in pertinent

part:

"No person shall...

be deprived of life, liberty,

Or property without due pro-

cess of law; ....”"

The Eighth Amendment of the United

States Constitution provides in pertinent

part:

"Excessive bail shall not

be required, nor excessive fines

imposed, nor cruel and unusual

punishments inflicted.”

STATUTORY PROVISIONS

21 U.S.C. §848 provides:

"(a) (1) Any person who

engages in a continuing crim-

inal enterprise shall be sen-

5.

tenced to a term of imprison-

ment which may not be less than

10 years and which may be up

tc life imprisonment, to a

fine of not more than $100,000,

and to the forfeiture prescribed

in paragraph (2); except that

if any person engages in such

activity after one or more

prior convictions of him under

this section have become final,

he shall be sentenced to a term

of imprisonment which may not

be less than 20 years and which

may be up to life imprisonment,

to a fine of not more than

$200,000, and to the forfeiture

prescribed in paragraph (2).

(2) Any person who is

convicted under paragraph (1)

of engaging in a continuing ~

criminal enterprise shall for-

feit to the United States --

(A) the profits

obtained by him in such enter-

prise, and

(B) Any of his in-

terest in, claim against, or

property or contractual rights

of any kind affording a source

of influence over, such enter-

prise.

(b) For purposes of subsection

(a) of this section, a person

is engaged in a continuing

criminal enterprise if --

(1) he violates any

provision of this subchapter

or subchapter II of this

chapter the punishment for

which is a felony, and

(2) such violation is a

part of a continuing series of

violations of this subchapter

Or subchapter II of this chap-

ter --

(A) which are under-~*

taken by such person in concert

with five or more other persons

with respect to whom such per-

son occupies a position of or-

ganizer, a supervisory position,

Or any other position of man-

agement, and

(B) from which such

person obtains substantial in-

come or resources.

(c) In the case of any sen-

tence imposed under this sec-

tion, imposition or execution

of such sentence shall not be

suspended, probation shall not

be granted, and section 4202

of Title 18 and the Act of July

15, 1932 (D.C. Code, secs. 24-

203 to 24-207), shall not apply.

(d) The district courts of the

United States (including courts

in the territories or posses-

sions of the United States hav-

ing jurisdiction under sub-

7.

section (a) of this section)

shall have jurisdiction to

enter such restraining or-

ders or prohibitions, or to

take such other actions, in-

cluding the acceptance of

satisfactory performance bonds,

in connection with any property

or other interest subject to

forfeiture under this section,

a as they shall deem proper."

1 U.S.C. §109 provides:

"The repeal of any sta-

tute shall not have the effect

to release or extinguish any

penalty, forfeiture or lia-

bility incurred under such

statute.”

Former Section 18. U.S.C. §4202 pro-

vided, in pertinent part:

"A federal prisoner...

may be released on parole

after serving one-third of such

term or terms, or after serving

fifteen years of a life sentence

or of a sentence of over forty-

five years."

(Repealed by the Parole Commission and

Reorganization Act, effective May 14, 1976)

21 U.S.C. §812 (This provision is

lengthy, and its pertinent text is set

forth in Appendix II, pursuant to U.S.

Sup. Ct. Rule 23(1) (d).

STATEMENT

Ae Proceedings Below.

Petitioner Roger Fry was charged in

a superseding indictment filed on Febru-

ary 5, 1976, in count one with conspiracy

to distribute marijuana in violation of

21 U.S.C. §841(a) and §846, and in count

two with conducting a continuing criminal

enterprise in violation of 21 U.S.C. §848.

The indictment was returned in the East-

ern District of Michigan, and the case

set before the Hon. Charles W. Joiner.

Subsequent to his arraignment, peti-

tioner filed motions to dismiss the super-

seding indictment, and to dismiss count

two of the indictment, based on the uncon-

stitutionality of the continuing criminal

enterprise statute as applied to the con-

duct charged against petitioner. Accomp-

anying the motions was a specific re-

quest for an evidentiary hearing regarding

the medical and social effects of mari-

juana, and an extensive offer of proof

relating to petitioner's proposed expert

testimony and other evidence demonstrating

the absence of harmful medical or social

effects of marijauna.

On April 15, 1976, Judge Joiner

denied the motions to dismiss, and also

denied the request for an evidentiary

hearing.

On July 12, 1976, petitioner withdrew

his plea of not guilty, and entered a plea

9.

a

of guilty to count two of the indictment,

the continuing criminal enterprise charge,

pursuant to an agreement under Rule ll,

Federal Rules of Criminal Procedure.

On August 31, 1976, petitioner was

sentenced to be committed to the custody

of the Attorney General for ten years,

without possibility of parole. On Sep-

tember 8, 1976, a timely notice of appeal

was filed. On June 27, 1977, the judg-

ment of the Court of Appeals was entered

affirming the conviction, and a petition

for rehearing was delivered by written

order of August 25, 1977.

Be Jurisdiction

The jurisdiction of the Court rests

upon 28 U.S.C. §1254(1); appellate juris-

diction was vested in the United States

Court of Appeals for the Sixth Circuit

pursuant to 28 U.S.C. §§1291 and 1294,

and Rule 4(b) of the Federal Rules of

Appellate Procedure; notice of appeal

from the judgment of the United States

District Court for the Eastern District

of Michigan was timely filed on September

8, 1976.

Be Facts.

Apart from the statement of proceed-

ings above, the relevant facts in this

10.

case are those contained in petitioner's

offer of proof submitted below in support

of his motions to dismiss the superseding

indictment. The offer of proof specifi-

cally described the expert testimony and

documentary evidence intended to estab-

lish a factual record that (1) marijuana

is not a narcotic drug; (2) the use of

marijuana is not addictive; (3) the use

of marijuana has no short term or long

term harmful side effects on the indivi-

dual user; (4) the ordinary use of mari-

juana does not lead to the commission of

crimes, acts of violence or the use of

narcotics; and (5) that the use of mari-

juana poses no significant danger or

threat to the lives, safety, liberty,

property or welfare of the user or of

other human beings. The purpose of

proffering these evidentiary materials

was to establish the factual record sup-

porting the several constitutional chal-

lenges to the continuing criminal enter-

prise statute. In a very real sense,

then, the crucial facts underlying the

determination of petitioner's constitu-

tional claims are not found in the record

below, but were rather excluded by the

District Court's refusal to hold eviden-

tiary hearing.

ll.

ARGUMENT

l. 21 U.S.C. §848 IS UNCONSTITUTIONAL

AS APPLIED TO CONDUCT INVOLVING ONLY MARI-

JUANA.

Petitioner contends that marijuana

should be classified, if at all, under

Schedule V of 21 U.S.C. §812, as the cri-

teria defining that category are the only

ones rationally and properly applicable to

marijuana. Because the continuing criminal

enterprise statute only applies to a series

of offenses involving substances listed in

Schedules I-IV of 21 U.S.C. §812, a deter-

mination that marijuana was unconstitution-

ally included in those schedules would in-

validate the instant prosecution. Peti-

tioner specifically asserts, and offered to

prove below, (1) that marijuana has a low

potential for abuse relative to the drugs

in Schedule IV (short-acting barbituric

hypno-sedatives); (2) that marijuana has

several currently accepted medical uses in

treatments in the United States; and (3)

that abuse of marijuana would lead to only

limited physical or psychological dependence

relative to the drugs in Schedule IV,

Such proof that the properties of mari-

juana fell only within the above described

criteria defining Schedule V -- would estab-

lish the invalidity of the instant convic-

tion, in that offenses involving Schedule V

substances are not included within the reach

of §848. As §848 applies only to drug vio-

lations punishable as felonies, and Schedule

12.

V offenses are misdemeanors under 18 U.S.C.

§l, the question of the marijuana classifi-

cation becomes a crucial question of fact.

The fundamental due process issue involved,

and the necessity of a complete factual

predicate for its determination, has been

extensively litigated in analogous circun-

stances, see United States v. Carolene Pro-

ducts Corp. ,

United States v. Carolene Products Corp.

.5. LO (L944); Milnot Company v.

Richardson, 350 F.Supp. : - (S.D.

TIT. I972Z); Milnot Company v. Arkansas

State Board of Health, 358 F.Supp. 901, 903

(E7D--APK. 1975). The Carolene Products

litigation provides an illuminating example

of the proper role of the federal judiciary

in assessing and reassessing the validity

of due process challenges to statutory

classifications and prohibitions. Although

the Supreme Court had, on two prior occa-

sions, upheld the Constitutionality of cer-

tain classifications and prohibitions under

the Filled Milk Act, and affirmed convic-

tions based on their breach, the courts

were receptive to renewed evidentiary

presentations by the purveyors of filled

milk, and ultimately held that the burden

of establishing the Act's unconstitution-

ality had been met:

"While the Carolene cases up-

held the constitutionality of the

Federal Filled Milk Act against due

process and equal protection argu-

ments, this Court believes that

changed circumstances render these

authorities of little precedential

value in assessing the validity of

the Arkansas statute in 1974. In

the 1938 Carolene case, the Filled

Milk Act was upheld on the basis of

13.

findings made by Congress in 1923

that the substitution of vegetable

fat for butter fat was injurious

and nutritionally unsound. As

stated, present knowledge indicates

that these conclusions were erron-

eous and that filled milk with

vitamins constitutes a nutritious

and wholesome product.

Milnot Company v. Ark. State Bd. of Health,

supra, 365 F.Supp. at 903.

Petitioner's citation to the Carolene

Products litigation is primarily intended

to focus the Court's attention on the legit-

macy of the type of due process claim raised

herein. The necessity for complete eviden-

tiary presentation of recent scientific and

medical findings is also amply demonstrated.

2. 21 U.S.C. §848 LS UNCONSTITUTIONAL

IN THAT ITS PENALTY PROVISIONS INFLICT CRUEL

AND UNUSUAL PUNISHMENT WHEN APPLIED TO CRIM-

INAL CONDUCT INVOLVING ONLY MARIJUANA.

The penalty provisions of 21 U.S.C.

§848 constitute cruel and unusual punishment

as applied to conduce involving only mari-

juana, in that (1) the punishment is exces-

sive given the lack of harmful medical and

social consequences of marijuana; (2) the

punishment is disproportionately severe

compared to penalties in other jurisdictions

for similar offenses; and (3) the punish-

ment is disproportionate to the penalties

for other federal crimes of comparable

severity.

Both state and federal jurisdictions

have formulated and applied a several step

14.

--

analysis to test a particular penal provi-

sion against the "precept of justice that

punishment for crime should be graduated

and proportioned to offense."' Weems v.

United States, 217 U.S. 349, 367 (I9I0).

‘inis “proportionality analysis" entails

(1) a comparison with sentences for the

same or similar offenses in other juris-

dictions; (2) a comparison with sentences

for other crimes of comparable severity

within the jurisdiction; (3) the legisla-

tive purpose underlying the penal provision;

and (4) “evolving concepts of justice and

decency". See Downey v. Perini, 518 F.2d

1288 (6th Cir. 19/5), vacated and remanded

for reconsideration of statutory modifica-

tion sub nom. Perini v. Downey, 96 S.Ct.

419 (1975). See also in re Foss, 10 Cal.3d

910 (1974); People v. Ruiz, 49 Cal.App.3d

730 (1975) / striking down a California

provision imposing a five year mandatory

minimum term without parole eligibility for

possession of marijuana with two prior con-

victions_/, and In re Grant, 18 Cal.3d 1

(1976) / striking down a ten year mandatory

minimum aen-penelabie sentence for sale of

marijuana with two prior convictions _/.

A. The Punishment is Cruel and Unusual

as Applied to Marijuana Offenses, Given the

Nature of the Offense and the Lack of Danger

to Society.

That marijuana is a qualitatively dif-

ferent drug from heroin, cocaine, or othtr

narcotics is a matter of consensus both in

the medical literature and the courts. 1/

Moreover, it is equally recognized that the

individual and social effects of marijuana

I7 See, e.g., U.S. v. Maiden, 355 F.Supp.

15.

Bae en

are virtually harmless compared to those of

heroin and other narcotics. Although these

presently well-established facts had not

been so thoroughly documented at the time

that 21 U.S.C. §848 was debated and passed

by Congress, the overwhelming weight of

authority currently acknowledges their fun-

damental correctness, and petitioner of-

fered to so prove in the trial court.

B. The Penalty Provisions of 21 U.S.C.

§848 are Disporportionate to the Penalties

for Similar Offenses in Other Jurisdictions.

Appellant contends that the relevant

reference point for this analysis is the

penalty structure in the several states for

the commercial distribution of marijuana.

This reference point should be contrasted

to that imposed for true narcotics offenses.

Also, because the continuing criminal enter-

prise statute requires that at least two

other drug offenses be proved as part of the

offense, the analysis here will also examine

any penalty augmentation or enhancement

provisions based on prior convictions.

While there are certain differences between

proof of a continuing series of drug viola-

tions, uninterrupted by arrest and prosecu-

tion, and proof of prior convictions in

addition to a present charge, appellant

contends that the continuing criminal enter-

prise penalties are more severe than even

those for the sale of marijuana with two or

more prior convictions.

Footnote 1 (continued)

743, 748 (D. Conn. 1973) / 1 pogiish Lorent-

zen, Sinclair, and McCabe all invalidated

Statutes that classed marijuana as a narcot-

ic, which it demonstrably is not."7

16.

Because the federal statute is direc-

ted toward national drug problems, perhaps

the most relevant other jurisdictions are

New York and California, as the most popu-

lous states with drug problems of national

scope.

In early 1973, New York Governor

Rockefeller delivered his annual Message to

the Legislature and proposed to overhaul the

state's drug laws with the primary intention

of imposing severe penalties on traffickers

of dangerous drugs, which included heroin,

hashish, LSD and amphetamines. Message to

the Legislature, 1973, N.Y¥.Leg.Doc.No.1, at

16. With certain modifications, the Rocke-

feller drug law was passed, and has with-

stood challenges that the penalties violated

state and federal prohibitions against cruel

and unusual punishment. State v. Broadie,

332 N.E.2d 338 (1973). However, the struc-

ture of the admittedly harsh and punitive

law clearly distinguishes between the en-

hanced penalties for heroin, cocaine, dan-

gerous drugs and narcotics, on one hand, and

marijuana, on the other. The present defin-

itional statutes, New York Penal Law §220.00

et seq., provide a ten step gradation of

drug offenses, for both possession and sale,

using the criteria of type of drug and

amount involved. Each of the gradations has

been assigned a penalty classification, for

which the range of punishment is prescribed

in Penal Law §70.00. The harshest oem

attach to violations of Penal Law §220.43,

Criminal Sales of Controlled Substances in

the First Degree, classified as an A-I felony

for which an indeterminate sentence is pro-

vided, as noted above, of a mandatory maxi-

mum of life imprisonment, and a mandatory

minimun of more than fifteen years, but less

17.

2/

than twenty-five. Section 220.43 proscribes

the sale of more than one ounce of a nar-

cotic on ome or more occasions, as well as

the sale of more than 2880 mg. of methadone.

Other offenses are defined for Criminal

Sales of Controlled Substances in other de-

grees, and a total of 32 separate drug of-

fenses carry a mandatory life maximum sen-

tence, with the mandatory minimum varying

from one to 25 years, depending on the

felony classification. See New York Penal

Law §220.

Marijuana penalties, on the other hand,

were not escalated as part of the legislative

scheme, and remained at their previous lev-

els for sale and distribution. These dras-

tically different penalty ranges reflect the

legislative acknowledgement of a qualitative

difference between marijuana offenses and

hard drug offenses. This distinction has been

maintained in subsequent judicial decisions

analyzing the new penalty structure, see,

e.g., People v. Morehouse, 364 N.Y.S. 2nd

108 (1976).

Comparing appellants's sentence for

marijuana violations with marijuana penalties

in New York, the disparity is egregious. The

continuing criminal enterprise statute pro-

vides a maximum of life without parole, while

New York Penal Law imposes only a fifteen

year maximu. The very concept of a non-par-

olable life maximum for marijuana offenses

is thoroughly irreconcilable with the

27 Tt should be noted that the mandatory life

sentence has been struck down on Eighth

amendment grounds in Carmona v. Ward,

Supp. (S.D.N.Y. LOTT CT Cea Bo tr71085)

18.

medical, legal and penological research and

experience of the past ten years. The ten

year mandatory minimum of 21 U.S.C. §848 is

even more disproportionate to the New York

minimum of one year. As appellant was sen-

tenced to the mandatory minimum, without

possibility of probation or parole, it is

this provision whose invalidity appellant

particularly asserts. The New York minimum

under the revised statute remains at one

year, in sharp contrast to the ten year pro-

vision in §848.

Under California's present fixed term

system, the sale of marijuana will receive

a sentence of two, three or four years,

while the sale of heroin or cocaine will

receive a fixed term of three, four or five

years, with no probation available for

amounts of heroin in excess of ¥ ounce.

Probation is available, of course, for all

marijuana offenders.

Virtually all other state jurisdictions

impose significantly less severe penaities

for the most aggravated conduct involving

marijuana, as petitioner demonstrated below

by a comparative table of state statutes.

C. The Penalties Provision of §848 as

Applied to Marijuana are Grossly Dispropor-

tionate when Compared with Penalties for

Other Federal Offenses.

Federal Law prohibits and imposes

criminal sanctions on a wide range of con-

duct, including certain acts which must be

considered extremely dangerous both to spe-

cific victims, e.g., white slavery (18 U.S.C.

§2421); air piracy (49 U.S.C. §1472), and

also to the very concepts of federal author-

19.

ity and sovereignty, e.g., treason (18 U.S.C.

§2381), interestate racketeering (18 U.S.

1951-1962), etc.

Ss.

C.

However, the penalties for these

crimes, whose severity clearly surpasses the

distribution of marijuana, fall short of

the continuing criminal enterprose punish-

ment. Specifically, there is no other fed-

eral crime which precludes parole consider-

ations as section 848 does. There are only

two other penalty provisions imposing a

mandatory minimum term of ten years or more,

but these do not include a "no-parole” pro-

vision. Finally, there is no federal pro-

hibition, including the assassination of a

president, (18 U.S.C. §1751) which renders

a prisoner ineligible for parole for a

longer perior than ten years. 18 U.S.C.

4205(a).

Appellant has selected an illustrative

array of federal criminal statutes and their

respective penalty provisions to demonstrate

the unusually harsh effect of 21 U.S.C. §848.

Treason, 18 U.S.C. §2381, is punish-

able by a term of at least five years, but

the prisoner is eligible for parole in one

third of the fixed term, not to exceed ten

years. 18 U.S.C. §4205(a).

The knowing use of explosives to kill,

injure, intimidate or damage, 18 U.S.C. §844,

is punishable by a maximum term of ten years

if no injury results; a maximum of 20 years

if injury to a person is incurred; and a

maximum of life imprisonment if the use re-

sults in death. Again, there is no minimum

for any of these crimes, and the prisoner

will be eligible for parole in no more than

20.

ten years even with the imposition of the

maximum penalty.

It should be particularly noted that

other federal statutes directed against

"organized crime" carry penalties far less

severe than that provided for 21 U.S.C.

9848. Chapter 95 of Title 18 defines

"Racketeering" offenses, including the Hobbs

Act, 18 U.S.C. §1951, which proscribes in-

terference with interstate commerce by

threats, violence, robbery, injury of extor-

tion, and provides a maximum term of impri-

sonment of twenty years. Similarly 18 U.S.C.

§1955 punishes the managers of gambling

operations with a five year maximun.

The most comprehensive organized crime

prevention and control statutes, 18 U.S.C.

§1961 et seq., imposes a twenty year maximum

for person engaged in a pattern of racke-

teering activity, defined as "any act(s)

or threat(s) involving vurder, kidnapping,

gambling, arson, robbery, bribery, extortion,

or dealing in narcotics or other dangerous

drugs”.

3. 21 U.S.C. §848 VIOLATES EQUAL

PROTECTION GUARANTEES IN THAT ITS PENALTY

PROVISION INFLICTS THE SAME EXTREMELY SEVERE

PUNISHMENT FOR CONDUCT INVOLVING MARIJUANA

AS PROVIDED FOR HEROIN, COCAINE AND OTHER

NARCOTIC DRUGS.

The continuing criminal enterprise

statute is applicable to any continuing ser-

ies of felony drug violations, regardless of

the type of proscribed drug or drugs involved.

21 U.S.C. §848 criminalizes violations of

subchapters I or II of Chapter 13 which in-

volve any of the widely disparate substances

21.

enumerated in Schedules I-IV of 21 U.S.C.

§812. However, unlike the statutes pre-

scribing differential penalties for

the underlying substantive offenses, depen-

ding on type of substance, §848 imposes an

indiscriminate and extremely harsh punish-

ment on all offenders. While the maximum

term of imprisonment for component marijuana

violations in five years, or one third of

the maximum for heroin violations, the §848

punishes the first-time marijuana violator

with the same ten year mandatory minimum

term of imprisonment, without possibility

of probation or parole, as is applicable

to the heroin violator. It is this undis-

criminating application of a single punish-

ment of extreme severity to offenses of

significantly disparate seriousness that

provides the crux of appellant's equal pro-

tection claim. The claim is further bol-

stered by the exclusion of drug violations

involving Schedule V drugs from the reach

of 21 U.S.C. 848 (b)(1), in that marijuana,

because of its properties, physiological

effects, and social impact, should be class-

ified, if at all, in Schedule V.

The following principles set forth the

framework for equal protection analysis.

First, it is acknowledged that the legisla-

ture needs only a rational basis to regulate

or proscribe a type of conduct, unless that

conduct itself involves the exercise of a

fundamental constitutional rights. See, e.

g., Harper v. Virginia Board of Elections,

383 U.S. : 7 (1960) / rationally based

poll tax impermissibly infringed right to

vote 7. For purposes of this argument,

appellant does not contend that conduct

involving commercial distribution of mari-

juana is in itself constitutionally protected,

22.

"Te

although this position is not without judi-

cial recognition and approval.3/ However,

while only a rational basis need by estab-

lished to sustain the regulation of conduct

to which constitutional protections do not

intrinsicaily inure, a reviewing court must

apply strict constitutional scrutiny to any

sanctions imposed on such conduct, if the

Sanctions themselves encroach on any con-

stitutionally protected right, such as the

right to procreate, Skinner v. Oklahoma,

316 U.S. 535, 541 (1942), or the right to

liberty, as in this case. Where the govern-

mental sanction involves only licensing or

registration, the reviewing court need only

find a rational basis to support the sanc-

tion. However, where the sanction entails

an extreme deprivation of liberty, as in

§848(a), as well as a potentially drastic

deprivation of property, as in the fire and

forfetiture sections of 848, the reviewing

court must apply the strict standard to

determine whether the single penalty classi-

fication inflicts an extremely severe penal-

ty for offenses of such dissimilar nature

that the relatively less serious offense

receives constitutionally unequal punishment.

In this case, assuming that the ten year

mandatory minimum sentence, without possibi-

lity of probation or parole, is proportion-

ate or or appropriate for the heroin dealer,

its application to a marijuana offender, such

as petitioner constitutes an equal protection

violation. Just as the imposition of differ-

ential penalties on persons similarly situa-

ted with regard to the gravity of their

3/7 See People v. Lorentzen, 387 Mich. 167,194

N.W.2d 827, 834 (1972) (Justice Kavanagh, con-

curring and dissenting, in striking down

Michigan's marijuana sale penalty as cruel

and unusual punishment).

23.

offense violates equal protection, Skinner

v. Oklahoma, supra, the infliction of the

same harsh penalty on persons differenti-

ally situated with regard to the severity

of their offenses deprives the less serious

offender of equal protection.

The second prong of petitioner's

equal protection argument is premised on the

inclusino of certain types of drug offenses

within the reach of §848 (offenses involving

Schedule I-IV drugs) while excluding others,

i.e., those involving Schedule V drugs.

Petitioner contends, and offered to prove

at the requested evidentiary hearing, that

marijuana should be classified, if at all,

as a Schedule V drug, when the criteria set

forth in 21 U.S.C. §812 are applied to the

true medical and social facts relating to

marijuana. Thus petitioner contends not only

that marijuana cannot rationally and consti-

tutionally be classified with heroin offenses

for penalty purposes, but also that marijuana

should be classified, if at all, in a cate-

gory outside the scope of §848 and its ten

year mandatory minimum penalty.

The fact that a particular group of

controlled substances (Schedule V substances)

are exempted from the reach of §848 negates

any argument that marijuana trafficking can

be punished identically with heroin offenses

under §848 because it is the continuing crim-

inal activity that is being punished, not the

transaction of a particular drug. Because

Congress has exempted at elast one group of

controlled substances from the reach of §848,

it must be acknoweldged that the propriety of

applying §848 to a particular type of drug

trafficking is a question of fact. The

exemption of Schedule V drugs from the reach

24.

a

of §848 is equivalent to a Congressional

declaration that drugs with (1) a low

potential for abuse relative to the drugs

in Schedule IV, (2) a currently accepted

medical use in treatment in the United

States; and (3) a limited capacity to induce

physical or psychological dependence rela-

tive to Schedule IV drugs,4/ should not be

subject to the drastic sanctions of §848.

At this point, the propriety of classifying

marijuana under Schedules I-IV, and thereby

rendering marijuana traffickers liable to

*848 penalties rather than with the exclu-

ded group of Schedule V drugs, becomes a

question of fact. Petitioner offered to

prove at the requested evidentiary hearing

that marijuana should be classified, if at

all, as a Schedule V drug, and evidentiary

showing proffered below, if unrebutted,

would vindicate equal protection claim.

Appellant's contention that marijuana

should be classified if at all, as a Sched-

ule V Drug rather than under any other cate-

gory cannot be met by citation to either

United States v. Maiden, 335 F.Supp. 743,

.Conn. 19/73) or United States v.

Kiffer, 477 F.2d 349, 355, 356 (2nd Cir.

Both cases rejected equal protection

challenges that marijuana was wrongly and

unreasonably classified in Schedule I with

heroin and other hard drugs. Both courts

acknowledged that marijuana was not a nar-

cotic and was significantly less dangerous

to individuals and society than other Sched-

ule I drugs. but held that no deprivation of

equal protection resulted from the misclassi-

fication because the penalties for marijuana

47 See 21 U.S.C. §812(b)(5) (criteria for

Schedule V classification).

25.

violations were individually prescribed.

In this case, the current classification

of marijuana in Schedule cover I rather

than V dictates that a marijuana offender

will suffer the some extremely severe man-

datory minimum punishment also applicable

to heroin and other narcotics offenses.

Because each controlled substance must be

categorized either within the reach of

§848 (Schedule I-IV) or outside (Schedule

V) the underlying factual basis for the

classification presents an important equal

protection question.

26.

es ee

4. THE TRIAL COURT ERRONEOUSLY

DEFINED PETITIONER'S REQUEST FOR AN

EVIDENTIARY HEARING REGARDING THE MEDICAL

AND SOCIAL EFFECTS OF MARIJUANA, THEREBY

DEPRIVING PETITIONER OF DUE PROCESS OF

LAW AND A FAIR OPPORTUNITY TO SUPPORT HIS

CONSTITUTIONAL CHALLENGES SET FORTH

ABOVE.

The denial of an evidentiary hearing,

in the face of petitioner's compelling

offer of proof and points and authorities,

submitted below, has pervasively tainted

the validity of appellant's conviction.

The evidentiary materials to have been

presented at the hearing were to provide

the factual basis for three of appellant's

Crucial constitutional challenges:

he Evidence of the lack of medical

or social harm resulting from marijuana

use was essential to challenge the con-

stitutionality of prosecuting any mari-

juana offenses under 21 U.S.C. §848;

Y Evidence of the lack of medical

Or social harm resulting from marijuana

use was essential to support the consti-

tutional challenge to the §848 penalty

provisions on cruel and unusual punish-

ment grounds; and

: Evidence of the medical and

social effects of marijuana in comparison

with the several types of other drugs

both included and excluded from the reach

of §848 was essential to support the con-

stitutional challenge that the invidious

discriminations among these drugs for

penalty purposes deprived petitioner of

27.

atts ce

equal protection.

That the proffered evidence was mat-

erial to each of these issues is clear.

Equally clear is the resulting prejudice

to appellant -- he was foreclosed from

presenting the factual basis for his con-

stitutional challenges, and his motions

to dismiss was subsequently denied below.

The remaining questions are (1) whether

petitioner had a constitutional right

to the evidentiary hearing, and (2) if

so, what is the appropriate remedy for the

denial of the right.

A factual analysis of the propriety

and rationality of a statutory classifi-

cation or prohibition has been held essen-

tial in the determination of a wide vari-

ety of statutory challenges analogous to

those raised by appellant. First, where

a statute is premised on a legislative

declaration of facts, and the contention

is posed that the state of facts no

longer exists, an evidentiary hearing is

necessary to determine the true facts

at the time the statute is being applied.

Chastleton Corp. v. Sinclair, 264 U.S.

543, 546-47 (1924) ["A law depending on

an emergency or other certain state of

facts to uphold it may cease to operate

if the emergency ceases or the facts

change even though valid when passed"];

Lea v. United States, 395 U.S. 6, 38

i585) ["A state based upon a legislative

declaration of facts is subject to consti-

tutional attack on the ground that the

facts no longer exist"]. In the instant

case, appellant challenges the legisla-

tive declaration accompanying the passage

28.

epee es pe

of the Comprehensive Drug Abuse Preven-

tion and Control Act, House Report No.

91-1444, 9lst Congress, 2nd Sess., 1970

U.S. Cong. and Admin. News, p. 4566 et

seq., particularly the sections on "Ex-

tent of the Problem” (id. at 4572) and

"Consequences of Drug Abuse" (id. at

4573).

Next, the propriety of a statute

must be reevaluated as the quantity and

quality of scientific knowledge changes

over time, even in the absence of an

express legislative reliance on a parti-

cular state of facts. Brown v. Board of

Education, 347 U.S. 483 (1954) [Whatever

May have been the extent of psychological

knowledge (about the impact of segrega-

tion on education) at the time of Plessy

v. Ferguson, this finding (of segrega-

tion’s adverse effect) is amply supported

by modern authority."] In this regard,

the Legislative History of the Act ack-

nowledges "great ignorance of the patterns

of drug abuse", 1970 U.S. Cong. and Admin.

News at 4574, and petitioner asserts that

the ignorance is particularly egregious

to the extent that it classifies marijuana

use as "abuse", in light of present medi-

cal and sociological knowledge.

An evidentiary hearing is also re-

quired where a statute is attacked on the

ground that it includes a particular art-

29.

icle or substance within a classification

where there exists a separate statutory

Classification in which the article or

substance should rationally and properly

be included. See People v. McCabe,

Ill. , 275 N.W. 2d 407, 408-09

(1571). An analogous contention has been

raised by petitioner in that marijuana

is included within the group of drugs

which may be the subject of a continuing

criminal enterprise charge, where the

effects of marijuana are no more harmful

than those of the Schedule V drugs ex-

cluded from the reach of 21 U.S.C. §848.

Finally, and perhaps most relevant

to this inquiry is the principle set forth

in United States v. Carolene Products,

304 U.S. 144, 153-54 (1938):

"(W]e recognize that the con-

stitutionality of a statute,

valid on face, may be assailed

by proof of facts tending to

show that the statute as applied

to a particular article is with-

out support in reason because

the article, although within the

prohibited class as to be with-

out the reason for the prohibi-

tion."

The course of the Carolene Products

litigation demonstrates in analogous cir-

cumstances the constitutional necessity of

ongoing judicial review of facts under-

lying a state classification or prohibi-

tion.

With regard to an appropriate remedy,

30.

Sabie te

it is submitted that this Court either

accept petitioner's offer of proof in

determining the constitutional claims

raised, or in the alternative, the appro-

priate remedy is a remand for the eviden-

ee hearing petitioner initially reques-

ted.

Where petitioner's constitutional

claims turn on the proof of a particular

set of facts, due process requires that

petitioner be afforded the opportunity

to establish a full factual record.

5. 21 U.S.C. §848 IS UNCONSTITU-

TIONAL IN THAT ITS SENTENCING PROVISION

VIOLATES THE CONSTITUTIONAL SEPARATION OF

POWERS MANDATE BY FORECLOSING BOTH JUDI-

CIAL AND EXECUTIVE EXERCISE OF THEIR PRO-

BATION AND PAROLE AUTHORITY.

The provisions of 21 U.S.C. §848(c)

purport to foreclose the trial court from

suspending the execution of any sentence

imposed, and to foreclose the Bureau of

Prisons from granting parole at any time

during the service of the sentence. Be-

cause the mandatory minimum sentence is

ten years (only 18 U.S.C. §2114, carries

a longer minimum sentence) and the range

of conduct apparently subject to prose-

cution under the statute, it is essential

that the judiciary and the executive not

be deprived of their capacity to effec-

tively devise a reasonable penal program

under the statute that is appropriate to

a particular offender.

31.

ne, pr

Petitioner argues that the legisla-

ture cannot derogate the authority and

responsibility of the judiciary and exe-

cutive to so act by providing for an ex-

tremely long minimum sentence, as it has

done under §848. Even if the actual term

of the sentence passes constitutional

scrutiny under the Eighth Amendment, the

attempt to insulate the sentence from

the exercise of probation and parole op-

portunities is constitutionally untenable.

The longer the term prescribed by the leg-

islature, the more important it becomes

that the judiciary and the executive be

permitted to influence and affect the

actual service of the sentence. Appellant

argues that even if the legislature can

properly formulate appropriate procedures

and operating structures for probation

(18 U.S.C. §3651 et seq.) and parole (18

U.S.C. §4201, et seq.), the legislative

definition of the manner of judicial and

executive participation in the sentencing

process becomes an encroachment on their

authority when a very long sentence is

imposed and insulated from probation and

parole options. This principle has been

recognized in State v. McCoy, 94 Idaho

236, 486 F.2d 247 (1971), where the de-

fendant was convicted of driving under

the influence of intoxicating liquor, and

the court suspended his sentence notwith-

standing a statutory mandate of a ten-day

jail sentence. The Idaho Supreme Court

affirmed the suspension of sentence over

the prosecutor's appeal agreeing that the

separation of powers provision of the

Idaho constitution prohibited the legis-

lature from infringing the Court's inher-

ent power. Drawing from Blackstone's

32.

ae

i —————

Commentaries and Hale's Pleas of the

Crown, the Court held that the power to

suspend sentence existed at common law

and was inherent to the Court. The

existence of the Court's inherent powers

has also been recognized and affirmed

in Hogan v. Bohan, 113 N.Y.S.2d 280

(1983) aff'd 305 N.Y. 110, 111N.E. 2d

233 (1953).

33.

a

6. THE “NO-PAROLE” PROVISION OF

PETITIONER'S SENTENCE IS INVALID AND OF NO

FORCE OR EFFECT IN THAT 18 U.S.C. §4202, THE

PAROLE PROVISION REFERRED TO IN 21 U.S.C.

§848, WAS REPEALED PRIOR TO THE IMPOSITION

OF PETITIONER'S SENTENCE.

At the time of petitioner's guilty plea,

and at the time of his sentencing, 21 U.S.C.

§848(c) provided:

In the case of any sentence imposed

under this section, imposition or

execution of such sentence shall not

be suspended, probation shall not be

granted, and section 4202 of Title

18... shall not apply.

However, 18 U.S.C §4202, providing for

parole eligibility for federal prisoners,

was repealed by the Parole Commission and Re-

Organization Act, effective May 14, 1976,

(the new Act is presently found at 18 U.S.C

§4202 et. seq.).

At the time of both petitioner's guilty

plea and sentencing, the existing 18 U.S.C

§4202 did not delineate parole eligibility,

but rather related to administrative matters.

The parole eligibility provisions of the new

Act are found at 18 U.S.C.§4205.

However, 21 U.S.C. §848 had not been

amended in conformity with the new Act. As a

consequence, petitioner contends that as a

matter of statutory construction, the "no-

parole" provision of his sentence is of no

force and effect. The question presented is

as follows: Where one statute refers to a

specific separate statute and excludes its

application, (as opposed to incorporating it

by reference), what effect does the repeal of

the referenced statute have on the referring

statute.

34.

At the outset, it should be noted that 21

U.S.C. §848(c) consists of a series of

negatives, The statutory reference in

§848(c) is an exclusion by reference, not

a more common incorporation by reference.

For this reason, the usual rule of statutory

construction that the repeal of a statute

incorporated by reference into another does

not affect the adopting statute is not appli-

cable.

Nor does the general savings clause

(1 U.S.C.§ 109) operate to maintain the

"no-parole" provision after the repeal of

18 U.S.C. §4202.

Warden v. Marrero, 417 U.S. 653 (1974),

is not to the contrary. The Comprehensive

Drug Abuse Prevention and Control Act of 1970

made parole available for almost all offenses

which had carried "no-parole" provisions

under the predecessor statute, 26 U.S.C.

§7237. Marrero addressed the question of

whether the parole ineligibility provisions

of the predecessor statute survived the

repealer, with the effect of foreclosing

parole consideration for persons convicted

of offenses prior to the date of the super-

seding Act.

The repealed statute contained language

similar to that in §848(c). Marrero held,

inter alia, that the general savings clause

independently barred parole consideration

because theparole ineligibility provision

of §7237(d) was a "penalty, forfeiture or

liability incurred under the statute" which

did not abate with the repeal.

Marrero is inapplicable to petitioner's

35.

EE

argument in the instant case. The general

savings clause operates to preserve only such

penalties as were incurred under the repealed

statute. Here, petitioner incurred the penalty

of a non-parolable sentence under the contin-

uing criminal enterprise statute. The repealed

statute, 18 U.S.C. §4202, did not impose a

penalty, but simply set forth the parole

eligibility criteria. If §848 had been

repealed, the general savings clause and the

Marrero rationale would have preserved the

"“no-parole" provision with the rest of the

statute, absent contrary legislation. Repeal

of §848 would have been analogous to the

repeal of former section 7237, discussed in

Marrero. However, the repeal of the extrinsic

parole eligibility provision, rather than

the statute which deféned the offense and

imposed the penalties, does not trigger the

general savings clause. See also Bridges v.

UnitedStates, 346 U.S. 209 (1952) and United

States v. Provenzano, 423 F. Supp. 662

(S.D.N.Y. 19/6).

In conclusion, the reference in §848 to

the inapplicability of former 18 U.S.C. §4202

is not given continuing vitality by either

settled rules of statutory construction or the

general savings clause, and consequently the

"no parole" provision of petitioner's sen-

tence must be stricken as invalid and without

force and effect.

36.

CONCLUSION

For the reasons stated, petitioner

Roger Fry respectfully requests that the

petition for writ of certiorari be granted,

and that the judgement of the Court of

Appeals be reversed.

DATED: SEPTEMBER Respectfully submitted,

>

a2, 8907 LAW OFFICES OF

BARRY TARLOW

by BARRY TARLOW

Attorneys for

Petitioner

37.

APPENDIX "A"

No. 77-5006

UNITED STATES COURT OF APPFAI

N2seey OLMAiwd weUUNS

NITED STATES OF AMERICA, )

)

Plaintiff-Anpellee, )

"

ROGE® ALISTAIR WILLIAMS FRY,

Defendent-Apvellant

)

)

Before; EDWARDS ane CELEBREZZE, Circu J

cul

Z2IRPOLI,* Senior District Judge.

On receipt and consideration of

Noting that eppellent Fry pled ¢g

@ continuing criminal enterprise, in viole

§ 84E (1970); and

uncer the facts of this

10-year sentence under § 848 cannot be con

of the cruel and unusual punishzent prohib

Eighth Amendmer: to the United States Cons

Furthcr finding that § 848 as it app

gece in the indictment in this c

tive of the said Constitution on grounds o

JOHN P. HEHMAN, Cler

OCRDER

uilty to conducting

tion of 21 U.S.C.

case that his

sidered violative

ition in the

titution; and

lies to a

ase, is not viola-

f unreasonable or

ited States District

* Honorable Alfonso J. Zirpoli, Senior Un

Judge for the Northern District of Californie, sitting by

desipnation

Further finding ourselves in agreement with the

~~ -.

following paragraph from the Kiffer case:

In sum, although one cannot

reac the thorough first report of the

Shafer Commission without agrecing

that there is an “extensive degree of

misinformation about marihuana as

@rug” and a need, in the words of the

report, to “demytholosize” and to “de-

symbolize” it, the cucstion before us is

a narrov. one. It is whether it can fair-

ly be said that Congress acted irration-

ally in prohiviting the commercial distri-

bution of marihuana. We believe that

the answer to that question is no

Therefore, appellants’ constitutional at-

tack upon that portion of the statute

must fail. Accord, United States v.

Rodrignez-Camacho, 465 F.2d 1220 (9th

Cir. 1972).

Id. at 355 (Foctncte cmitted.)

> And finding no other appellate issues of arguable

merit presentec,

Now, therefore, the jucgment of conviction is

affirmed.

Enterec by order of the Court

Ark A ik2 ~~ —

Clerk:

.

4

a

:

: