# Petition — Fry v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2606%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 434 U.S. 1062 ## Text 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 : : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2606%3A1. Public record. Not legal advice.