Petition — Madonna v. United States

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OCT 2 10973

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In The

October Term, 1978

No.

MATTHEW MADONNA,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

GUSTAVE H. NEWMAN

Attorney for Petitioner

522 Fifth Avenue

New York, New York 10036

(212) 682-4066

LUTZ APPELLATE PRINTERS, INC.

Law and Financial Printing

South River, NJ. New York, N.Y. Philadelphia, Pa. Washington, D.C.

(201) 257-6850 (212) 840-9494 (215) 563-5587 (202) 783-7288

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TABLE OF CONTENTS

Page

Opinion Below ......---eeeeeeeecececeseceteeeeeeeeees l

Jurisdiction ........ cc ccccc cece ccccccccenereeeeeneree 2

Questions Presented ......-----eeeeeeeeeecrrreerereeres 2.

Statutes Involved .........2ee eee secececceneeeereeeeeee 2

Statement of Facts ........-ecccecceeececereeeeeeeeeeee 3

Reasons For Granting the Writ:

1. The sentence was illegal. .......---eeeeeerereees 4

Il. The sentence was imposed in an illegal manner. . 14

Conclusion ......cccccccccccccccccccccccccsnooovvovess 21

TABLE OF CITATIONS

Cases Cited:

Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221 (1977) ...eeees 14

Callahan v. United States, 364 U.S. 587, 81 S. Ct. 321

CUBED ie x dence tre scenityeansdscsenetcepesvocos 5

Gore v. United States, 357 U.S. 386, 78 S. Ct. 1280

CON an iin wie akiies cs qenes Hosa dedsawoese end eves 6

Heflin v. United States, 358 U.S. 415, 79 S. Ct. 451 (1959) .. 6

lannelli v. United States, 420 U.S. 781. 95 S. Ct. 1284

CIDTDN Saw ec edi Se ccacec snes ccdsewacseresesaceces 5

Contents

Page

Jeffers v. United States, 432 U.S. 137, 97 S, Ct. 2207

SFTE o coVddeccedecsésvevghéscevevercesssveveed es 13, 14

King v. United States, 565 F.2d 356 (Sth Cir, 1978) ....... 12, 13

Milanovich v. United States, 365 U.S. 551, 81 S. Ct. 728

CIDGD) wccvcccvccccccvccrccesvccvcvevecceeseversens 6

Pereira v. United States, 347 U.S. 1, 74S, Ct. 358 (1954) ... 5

Pinkerton v. United States, 328 U.S. 640 (1946) ........55. 4

Prince v. United States, 352 U.S. 322, 77 S. Ct. 403,

Bm © Fy. f\, 2 BRT 6

Simpson v. United States, 435 U.S. 6 (1978)... ee eee eeeeee 14

Townsend v. Burke. 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed.

SOGD CIDEBD cccccrcccccccccccccccccesccccccesseceds 21

United States v. Atkinson, 512 F.2d 1235 (4th Cir. 1975)...11, 12

United States v. Bass. 535 F.2d 110 (D.C. Cir. 1976) ....... 16

United States v. Capriola, 537 F.2d 319 (9th Cir. 1976) ..... 21

United States v. Curry, 512 F.2d 1299 (4th Cir. 1975), cert.

denied, 423 U.S. 832, 96 S. Ct. 55, 46 L. Ed. 2d 50 (1975). II

United States v. Grayson, _—. U.S. —— 98 S. Ct. 2610

COGTED kivaccnceccdecieddacenttendacutsctcucesansves 21

United States v. Howard. 507 F.2d 559 (8th Cir. 1974) ..... i

United States v. Kearney, 560 F.2d 1358 (9th Cir. 1977) ...12, 13

Contents

Page

United States v, King, 521 F.2d 356 (6th Cir. i erererr |

United States v, Malcolm, 432 F.2d 809 (2d Cir. 1970) ..... 15

United States v, Olivas, 558 F.2d 1366 (10th Cir, 1977) ...., 13

United States v. Oropeza, 564 F.2d 316 (9th Cir. __,. |en

60.0060 6556906 bec 8d bees 00096000 000600 sbeebs 10, 11, 12, 13

United States v. Robin, 545 F.2d 775 (2d Cir. 1976) ....... 17

United States v, Rosner, 485 F.2d 1213 (2d Cir. 1973) ...... 14

United States v. Stein, 544 F.2d 96 (2d Cir. 1976) ......... 16

United States v. Stevens, 521 F.2d 334 (6th Cir. 1975) ...... 11

United States v. Weston, 448 F.2d 626 (9th Cir. 1971) ...... 16

United States v. Wiley, 278 F.2d 500 (7th Cir. 1960) ....... 21

Williams v. New York, 337 U.S. 241, 69 S. Ct. 1079 (1949) . 21

Statutes Cited:

PF AED. oho vadnenvs denbdudiessduinedieeusans 9

Oe ee GH sb bbks ions tinlinin tndedbanaduebndinteies 9

i WE caksinatanpeuieesddeabhbesinduvbiakuncens 2,4

Be DN I ek wed cancasrccadedwedeccedcceds 2,3,4,7

Be Ge, SIN Sn cs ncndiandbenbbadkbddeoiel acdan 2.4

Contents

Page

21 U.S.C. $846 oo. cece eeeeveeveererrreeeenenesseeeees 7,8,9

21 U.S.C. $B4B .... cc cece eecvcccveevereveveesevereeeees 9

21 U.S.C. $9S2(a) on cccccccccvevererercecereeeevesers 3, 4,7

21 U.S.C. GOG3 on. cccvevcccccccvcvevvevvecsvessesores 7,8,9

2B U.S.C. $1284 2... ccccvccccccceceeceeceeecereeeereeee 2

Rule Cited:

Federal Rule of Criminal Procedure 35 ........++000: 2, 4, 18

Other Authority Cited:

1970 U.S. Code Cong. & Admin, News ......0eeeeeees 6, 8, 10

APPENDIX

A— Decision of the United States Court of Appeals for the

Second Circuit Dated September |, 1978 .......0eeeees la

B—Order Affirming Opinion ..........6 cee ee eee ee eens Sa

C-—Statutory Provisions Involved ..........6ee eee e eens 7a

Supreme Court of the United States

October Term, 1978

No.

MATTHEW MADONNA,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

Petitioner, Matthew Madonna, respectfully prays that a

writ of certiorari be issued to review the judgment of the United

States Court of Appeals for the Second Circuit entered in this

case on September |. 1978.

OPINION BELOW

The opinion of the Court of Appeals is unreported and

appears as Appendix A to this petition. The Court of Appeals

for the Second Circuit. in a unanimous per curiam opinion,

affirmed an order of the United States District Court, Southern

District of New York (Carter. J.). which denied petitioner's

motion filed pursuant to Rule 35 of the Federal Rules of

Criminal Procedure seeking to vacate or modify the 30 year

sentence imposed for violation of the federal narcotics laws.

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

§1254. This petition for a writ of certiorari is filed within thirty

(30) days of the entry of the judgment of the Court of Appeals

affirming the order appealed from.

QUESTIONS PRESENTED

1. Whether it is illegal and contrary to congressional intent

to impose consecutive sentences following conviction for one

count of conspiracy to violate 21 U.S.C. §§812, 841(a)(1) and

841(b)(1)(A) and a substantive count charging distribution of a

controlled substance and possession with intent to distribute in

violation of 21 U.S.C. §§812, 841(a)(1) and 841(b)(1)(A) where.

under the facts as alleged in the indictment and established at

trial, the substantive count was the object of the conspiracy.

2. Whether the sentencing court's failure to afford defense

counsel any opportunity to rebut false, inaccurate and

misleading information supplied by the Assistant United States

Attorney and contained in the pre-sentence report in aid of

sentence was fundamentally unfair and improper.

STATUTES INVOLVED

The statutory provisions involved are 21 U.S.C. §§812.

841(a)(1) and 841(b)(1)(A).

STATEMENT OF FACTS

The petitioner Matthew Madonna was tried in the Southern

District of New York before the Honorable Robert L. Carter

and a jury and was convicted on one count of possession of

neroin with intent to distribute it and one count of conspiracy to

possess and to import heroin, in violation of 21 U.S.C.

§$®41(a)(1) and 952(a). He was sentenced to the maximum term

of fifteen years on each count, the terms to run consecutively.

No testimony or other evidence directly implicated

Madonna. The Government's case turned on whether a car he

had rented in a false name was utilized with his knowledge for

the purpose of transporting heroin. The trial testimony indicated

that a friend of Madonna’s, the co-defendant Larca, had loaned

the car to one Boriello, another co-defendant, who had picked

up heroin and put it in_the trunk of the car. Boriello was

subsequertly arrested and later, under Government control,

drove the car to a mid-Manhattan street corner where Larca and

Madonna met him and took charge of the car. At this point

Larca and Madonna were arrested, and the car they were sitting

in was seized. A search of the vehicle revealed a small quantity

of heroin, found in the trunk.

The question whether Madonna had prompted Larca to

lend the vehicle to Boriello and the reasons for Madonna's

presence at the Manhattan location to regain his car were thus

the crucial, and indeed the only, issues in the prosecution's case

against Madonna. Neither Boriello, the Government's principal

witness who strongly implicated Larca but offered absolutely no

testimony inculpating Madonna, nor any other participant in the

venture implicated Madonna. Thus, the case against Madonna

consisted of inferences sought to be drawn from the use of the

car rented under an assumed name and some tenuous and

dubious allegations of a prior similar act.

} REASONS FOR GRANTING THE WRIT

The sentence was illegal.

Federal Rule of Criminal Procedure 35 provides as

follows:

“The court may correct an illegal sentence at

any time and may correct a sentence imposed in

an illegal manner within the time provided herein

for the reduction of sentence. The court may

reduce a sentence within 120 days after the

sentence is imposed, or within 120 days after

receipt by the court of a mandate issued upon

affirmance of the judgment or dismissal of the

appeal, or within 120 days after entry of any

order or judgment of the Supreme Court denying

review of, or having the effect of upholding, a

judgment of conviction. The court may also

reduce a sentence upon revocation of probation

as provided by law.”

The imposition of cumulative sentences rather than

concurrent sentences for conviction of one count of conspiracy

to violate 21 U.S.C. §§812, 841(a)(1), 841(b)(I)A) and 952(a)

and one substantive count under 21 U.S.C. §§812, 841(a)(1) and

841(b)(1)(A), where the substantive count was also an object of

the conspiracy, is, we respectfully contend, the imposition of an

illegal sentence.

Prior to the enactment of the Controlled Substances Act of

1970, the controlling drug statutes were cumulatively punishable.

Pinkerton v. United States, 328 U.S. 640 (1946). The rationale

for permitting multiple punishment in this context was founded

solely on an interpretation of congressional intent relative to the

then existing federal narcotics statutes.

Traditionally, the courts have held conspiracy and the

completed substantive offense to be separate crimes. See, e.g.,

lannnelli v. United States, 420 U.S. 781, 95 S. Ct. 1284 (1975).

The two did not merge in marked contrast to the merger of an

attempt with the completed act. Consequently, multiple

punishment was permitted in the form of consecutive sentencing

where a conviction was obtained for separate counts of

conspiracy and any substantive offense committed in furtherance

of the conspiracy. Pereira v. United States, 347 U.S. 1,74 S. Ct.

358 (1954).

In Janneili v. United States, supra, although the majority of

this Court found no merger of the substantive gambling count

and the conspiracy charged, the Court cautioned that imposition

of cumulative sentences for the joint violation should depend on

the facts of the particular case.

Because the very nature of conspiracy posed distinct

dangers quite apart from those of the substantive offense and

presented a greater potential threat to the public than individual

crimes, the Court has consistently attributed to Congress:

“a tacit purpose...to maintain a long-

established distinction between offenses

essentially different.” Callahan v. United States,

364 U.S. 587, 594, 81 S. Ct. 321 (1961).

Therefore, the issue at bar is not whether Congress could

have authorized the imposition of cumulative sentences for a

conspiracy and the completed substantive offense committed in

violation of Controlled Substances Act of 1970. Clearly, there is

ne constitutional impediment, and we so concede, to Congress’

authorizing cumulative sentences for a single act that may

violate more than one crimizal statute when the offenses created

by the statute are not identical.

Rather, the issue is whether Congress intended to exercise

its power to authorize consecutive sentences for Madonna’s

single transaction which violated more than one section of the

Act. Unless an intention can be found from the face of the Act

or from its legislative history to authorize multiple punishments

for a single factual transaction, the courts are obliged to

construe the Act against the harsher penalties which result from

cumulative punishments. See: Milanovich v. United States, 365

U.S. 551, 81 S. Ct. 728 (1961); Heflin v. United States, 358 U.S.

415, 79 S. Ct. 451 (1959); Prince v. United States, 352 U.S. 322,

77 S. Ct. 403 (1957).

It is, therefore, necessary to examine the Controlled

Substances Act of 1970 and its legislative history in order to

fully determine congressional intent with regard to multiple

sentencing under the Act. The stated purpose of the Act is to:

“revise the entire structure of criminal penalties

involving controlled drugs by providing a

consistent method of treatment of all persons

accused of violations.” 1970 U.S. Code Cong. &

Admin. News at 4570.

Thus, this case can be distinguished from Gore v. United

States, 357 U.S. 386, 78 S. Ct. 1280 (1953), where cumulative

sentences for separate violations of the narcotics contro! laws

resulting from one transaction were upheld.

In Gore, the separate offenses were created by Congress at

different times and the background of the several statutes led to

the conclusion that Congress did intend to authorize multiple

punishments.

In this case, however, all of the offenses charged are rooted

in one legislative enactment (the 1970 Act), and there is nothing

in the history of that enactment to suggest a congressional

purpose to permit or require multiple punishment for a

conspiracy and a substantive offense which form part of one

transaction.

The structural make-up of the Act further supports the

Proposition that convictions for conspiracy under the Act and

for substantive offenses which occur in furtherance of the

conspiracy should merge for the limited purpose of sentencing.

Subchapter | deals with “Control and Enforcement”, the

cornerstone of which is Section 841(a)(1) which states that:

“it shall be unlawful for any person knowingly or

intentionally ...to manufacture, distribute, or

dispense, or possess with intent to manufacture,

distribute, or dispense, a controlled substance.”

Subchapter 2 deals with “Importation and Exportation”,

the foundation of which is Section 952(a), which makes it

“unlawful to import...any controlled

substance.”

Each subchapter contains a separate section prohibiting

attempts and conspiracies. Sections 846 and 963, respectively

state:

“Any person who attempts or conspires to

commit any offense defined in this subchapter is

punishable by imprisonment or fine or both

which may not exceed the maximum punishment

prescribed for the offense, the commissior of

which was the object of the attempt or

conspiracy.” (Emphasis added.)

The structure indicates several very important aspects with

regard to congressional intent.

First. conspiracies are to be treated no differently from the

substantive offense. the commission of which was the object of

the conspiracy. The punishments are identical. In fact. the

conspiracy sections incorporate by reference the punishment

structure of the corresponding substantive sections. Hence.

Congress equated conspiracy with substantive violations for the

purpose of punishment.

This is echoed by the stated purpose of the Act which was

quoted earlier, namely to review:

“the entire structure of criminal penalties

involving controlled drugs by providing a

consistent method of treatment of all persons

accused of violations.” 1970 U.S. Code Cong. &

Admin. News at 4570.

Since the rationale underlying those decisions which allow

multiple punishment where conspiracy was involved is based on

conspiracy statutes which were enacted wholly apart from the

substantive statutes and which carried penalties different from

those of the substantive sections. those decisions are of no

weight in deciding the present issue.

Secondly, for the purpose of punishment, the statute places

attempts and conspiracies on the same footing. It is hornbook

law that an attempt merges with the completed offense for

punishment purposes. Separate punishment is never permitted

for an attempt and the completed act.

Since attempts and conspiracies are equated for punishment

purposes and are specified as alternative methods of violating

Sections 846 and 963. it would be anomalous to impute to

Congress an intent to punish cumulatively for one but not the

other. Hence. Congress intended a conspiracy to merge with the

completed offense for punishment purposes.

= a

Thirdly, to accomplish the stated purpose of the Act and

provide a consistent method of treatment of all persons accused

of violations, Congress established precise punishments.

Section 401(b)(1)(a) established a maximum punishment for

a violator of Section 401(a). As previously noted, Sections 846

and 963 mandated the same punishment for the conspiracy to

violate the substantive statute.

A sentence of thirty (30) years was not prescribed except in

the case of a defendant who had one or more prior convictions

for an offense punishable under the subsection or for a felony

under the drug laws of the United States.

To deal with the large-scale violators, Congress enacted a

separate section which proscribed “a continuing criminal

enterprise” to which it attaches more severe penalties.

Section 848 imposes a minimum sentence of ten years to life

imprisonment and a fine of up to $100,000 on any person who

violates any provision of subchapters | or 2, which is a felony,

where such violation is part of a continuing series of violations

which are undertaken in concert with five or more other persons

with respect to whom such person occupies the position of

organizer, and from which such person obtains substantial

income.

As the legislative history of this section points out:

“The [statute] provides severe criminal

penalties for persons engaged in _ illicit

manufacture or sale of controlled drugs primarily

for the profit to be derived therefrom. Section

[848] provides that persons engaged in continuing

criminal enterprises involving violations of the

[statute]... shall be harshly dealt with.

This section [848] is the only provision of

the [statute] providing minimum mandatory

sentences. and is intended to serve as a strong

deterrent to those who otherwise might wish to

engage in the illicit traffic. while also providing a

means for keeping those found guilty of

violations out of circulation.

The penalties for other violations of the

[statute] are. in general less severe... .” 1970

U.S. Code Cong. & Admin. News at 4575-76.

The petitioner is neither a prior violator of any narcotics

law of the United States or. under the facts of this case. any such

large scale violator.

Thus. Congress has provided a means by which certain

offenses can be more severely dealt with. The Court should not

allow this scheme to be circumvented by an improper

pyramiding of sentences which Congress in no way intended.

In sum. it can be gleaned from the Controlled Substances

Act of 1970. together with its legislative history, that the

pyramiding of sentences in the instant case is, in fact, illegal.

Congress did not intend that consecutive sentences be imposed

for a conspiracy count and a substantive count where only one

transaction formed the basis of both counts.

The sentence should. therefore. be corrected and reduced so

that the sentence will run concurrently for the two counts.

The position we advance has received the support of various

circuit courts in analagous situations.

In United States v. Oropeza, 564 F.2d 316 (9th Cir. 1977).

the court vacated consecutive sentences imposed for distribution

of heroin and possession with intent to distribute.

In so doing, the court relied upon reasoning evinced by

three other circuit courts. United States v. Stevens, 521 F.2d 334

(6th Cir. 1975); United States v. King, 521 F.2d 356 (6th Cir.

1975)'; United States v. Atkinson, 512 F.2d 1235 (4th Cir. 1975),

United States v. Curry, 512 F.2d 1299 (4th Cir. 1975), cert.

denied, 423 U.S. 832, 96 S. Ct. 55, 46 L. Ed. 2d 50 (1975):

United States v. Howard, 507 F.2d 559 (8th Cir. 1974).

We submit the reasoning articulated by the court in United

States v. Oropeza, supra, at p. 324, is admirably applicable at

bar:

“The evidence as to Oropeza’s and Minton’s

convictions for possession with intent to

distribute on October 15 arose only from their

association with the conspiracy and their actions

in the October 15 distribution. The circumstantial

evidence on which their possession convictions

rest was identical to the evidence supporting their

distribution convictions. We vacate the sentences

imposed for these convictions and remand to the

district court for resentencing.”

The circumstantial evidence against Madonna, by virtue of

the renting of the car under the assumed name and his presence

in it at the rendezvous, is the identical evidence upon which the

conviction for possession with intent to distribute and

conspiracy to possess and import rests.

It is not significant that the words after “possession” and

“conspiracy to possess” vary at bar. The key is the possession,

and it is the foundation and a necessary part of both crimes.

!. Concurrent sentences upon either the conviction for possession with

intent to distribute or conspiracy to distribute was vacated since both were

based upon a single act of possession. It should be noted that the current

Solicitor General, who sat as a member of the court in this case, concurred

and opted for vacature of the convictions themselves. He stated at p. 359

“. .. the Congress did not intend to permit a defendant to be punished twice

for a single act prosecuted as two separate offenses.”

It is this identity and the absence of evidence of

congressional intent to impose multiple punishment for a single

criminal act which bars cumulative punishment. United States v.

Oropeza, supra.

The same result is achieved if we put the emphasis on the

possession as in United States v. Atkinson, supra, where the

court stated at page 1240:

“{12] Appellant Molden Atkinson asserts

that the two 15-year sentences imposed on him

exceeded the permissible sentencing limit for his

involvement in the drug transaction. On the facts

of this case, we agree. His possession of the drug

was not shown to exist separately from the

moment in which the heroin was transferred to

the government agent. Only when he produced

the heroin for sale was his possession shown to

exist. Under these circumstances, while the single

act was proof of two offenses, we are of opinion

it was not the intent of Congress to increase the

maximum sentence when two violations of the

same subsection of the statute are shown by a

single act. Cf., Prince v. United States, 352 U.S.

322, 77 S. Ct. 403, 1 L. Ed. 2d 370 (1957).”

Madonna's participation in the conspiracy to import and

possession to distribute al! stem from the presence in the car and

assertion of dominion over it. Cf, United States v. Kearney, 560

F.2d 1358 (9th Cir. 1977); King v. United States, 565 F.2d 356

(Sth Cir. 1978).

We submit the foregoing cases are inapplicable, since

neither raised the issue of congressional intent as manifested in

the Drug Act of 1970, nor the identity of treatment of an

attempt and a conspiracy.

In Aing, supra, the issue of identical acts to bottom both

convictions was not raised in the context of double punishment,

but only on the issue of double jeopardy. The sentences in King

were attacked only on the ground of being cruel and unusual.

In Kearney, supra, the court adhered to the rule of

“required proof™ and rejected the “same evidence” rule, but did

not discuss it in light of the clear language, structure and intent

of the Drug Control Act of 1970. Beyond this, the vitality of

Kearney, supra, seems to have been drained by the Ninth Circuit

decision in Oropezo, supra.

Similarly, in United States v. Olivas, 558 F.2d 1366 (10th

Cir. i977), the court went so far as to vacate a concurrent

sentence in an analagous situation, holding that the single

transaction did not support the imposition of sentences for more

than one crime.

In ruling against Madonna, the position and statutory

analysis raised herein, the Second Circuit places itself in square

conflict with other circuits which have considered and decided

the issue at bar. Th's conflict among the circuits in construing

and applying a series of narcotics control statutes national in

scope and applied daily raises an important question crying out

for final resolution by this nation’s Court of last resort.

The question of when and under what circumstances

consecutive sentences can be imposed under given federal

sentences is, standing by itself, an important question of federal

criminal law worthy of discretionary review.

Thus, in Jeffers v. United States, 432 U.S. 137, 97 S. Ct.

2207 (1977), this Court granted certiorari and, as per the rule of

consecutive sentences to be imposed following convictions in

federal narcotics cases involving concerted action of a

conspiratorial nature, held that consecutive sentences could not

be imposed dpon a defendant convicted of conspiracy to

distribute narcotics as wel! as conducting a continuing criminal

enterprise with narcotics distribution at the fountainhead.

The need for final action by this Court undoubtedly

prompted the granting of further appellate review in Jeffers and

is equally necessary for cases such as the one a’* bar. See also, in

other contexts and other statutes, Brown v. Ohio, 432 U.S. 161,

97 S. Ct. 2221 (1977); Simpson v. United States, 435 U.S. 6

(1978).

Accordingly, the petition at bar should be granted, and

further and final appellate review should be granted.

Il.

The sentence was imposed in an illegal manner.

Although under the current state of the law the severity of a

particular sentence is not reviewable on federal appeal, the

courts have considered the question of sentence review in other

ways.

Thus, courts have considered the prejudicial effect on a

sentence under circumstances where a prosecutor submitted a

supplementary sentence memo making allegations against the

defendant which the defendant was denied a _ reasonable

opportunity to rebut, challenge or explain. The court in that

case set the sentence aside and remanded the case for resentence.

United States v. Rosner, 485 F.2d 1213 (2d Cir. 1973).

At the time of sentence in the case at bar, it was alleged that

the probation report contained incorrect data which had been

furnished by the Government. Defense counsel sought an

evidentiary hearing to rebut the allegations. The court feit such a

hearing was unnecessary.”

However, the pyramiding of sentences in light of this trial

record suggests there was a “significant possibility” these

statements were not totally ignored by the court. As indicated in

the record, the petitioner's role in this case, as construed in the

light most favorable to the Government, was that of a

subordinate.

A recent spate of cases have held that where there is a:

“significant possibility that the sentence may have

been affected by a material misstatement or

misleading statement in the presentence report,

the sentence should be vacated.” (Emphasis

added.)

In United States v. Malcolm, 432 F.2d 809 (2d Cir. 1970),

the sentencing court was misled by the probation report to

believe the defendant had been involved in other bank robberies:

information which had, in fact, been supplied by the defendant

himself to the prosecutor. The defendant attempted to rebut this

and other misinformation, but was not allowed to do so. The

court vacated the -sentence and sent the matter back for

resentence, stating at p. 819:

“Fair administration of justice demands that

the sentencing judge will not act on surmise,

misinformation and suspicion but will impose

sentence with insight and understanding. Harris

v. United States, 382 U.S. 162, 166, 86 S. Ct. 352,

IS L. Ed. 2d 240 (1965).”

2. Inexplicably Judge Carter denied a hearing or any other inquiry,

notwithstanding the fact that Madonna was in custody following the court's

revocation of bail after the jury returned its guilty verdict.

When a district court imposed a maximum sentence upon a

defendant in reliance upon a sentencing memorandum and then

placed the burden upon the defendant to rebut this information,

the Court of Appeals vacated the sentence and sent the matter

back for resentencing. United States v. Weston, 448 F.2d 626

(9th Cir. 1971).

In United States v. Bass, 535 F.2d 110 (D.C. Cir. 1976), the

court gave a full exposition on what matters should properly be

considered by a sentencing judge. The court refused to vacate

the sentence at that stage only because the defendant, through

counsel, did not deny or attempt to deny the matters which he

claimed were false. The court suggested, however, that on a Rule

35 motion, these matters could be disputed and so did not

disturb the ten year sentence imposed for narcotics transactions.

In United States v. Stein, $44 F.2d 96 (2d Cir. 1976), the

court vacated a ten year sentence which was based upon

consecutive five year sentences on two counts. The court, at page

101, stated the basis for vacating the sentence which, although

within legal limits, was based on erroneous information:

“On the other hand, a motion to vacate a

sentence on the ground that the sentencing judge

acted on the basis of erroneous assumptions or

information that was materially incorrect rests on

a different footing; in that case ‘{I}t is not the

duration or severity of this sentence that renders

it constitutionally invalid; it is the careless or

designed pronouncement of sentence on a

foundation so extensively and materially false,

which the prisoner had no opportunity to correct

by the services which counsel would provide, that

renders the proceedings lacking in due process.’

Townsend v. Burke, 334 U.S. 736 at 741, 68 S.

Ct. 1252, 1255, 92 L. Ed. 1690 (1948).”

In United States v. Robin, 545 F.2d 775 (2d Cir. 1976), the

court vacated and remanded a thirty (30) year sentence based

upon two consecutive 15 year terms. The Special State

Prosecutor submitted a pre-sentence memo in the form of a

letter alleging certain extensive involvements of the defendant,

his affluence, etc. The defense counsel sought to rebut this, but

no opportunity was afforded and the defendant was sentenced.

Except for the source of the information, this is similar to the

situation at bar. In setting aside the sentence, the court held that

such a result was warranted even where the possibility of

reliance on misinformation is shown:

“We have held that a defendant must be

permitted to state his version of the facts to the

court; where the possibility of reliance on

misinformation is shown, this right must be

extended to permit that presentation by the

defendant which will enable the sentencing judge

to grasp the relevant facts correctly. United

States v. Needles, 472 F.2d 652, 658 (2d Cir.

1973); see also United States v. Rollerson, 491

F.2d 1209, i213 (Sth Cir. 1974); United States v.

Powell, 487 F.2d 325, 329 (1974). In appropriate

circumstances, this may mean that a defendant

will be permitted to submit affidavits or

documents, supply oral statements, or even

participate in an _ evidentiary hearing;

alternatively, further corroboration of sentencing

data may be required. And while in such cases

the procedure to be followed lies within the

sound discretion of the sentencing judge, a

court’s failure to take appropriate steps to ensure

the fairness and accuracy of the sentencing

process must be held to be plain error and an

abuse of that discretion.” United States v. Robin,

supra, at p. 779.

eg 4

At bar. there was a whole host of material misstatements

and misleading statements. In his allocution on sentence. the

prosecutor contended that Madonna’s prior manslaughter

conviction at the age of 18 was drug-related. This was untrue

and was capable of easy refutation had an opportunity been

provided.

In addition. the prosecutor brought into the sentencing the

fact that petitioner's brother absconded in a totally unrelated

case pending in the Eastern District of New York.

Prosecutor Flannery repeated the unsupported allegation of

the relation of petitioner's prior offense to drugs. He improperly

and erroneously contended that the petitioner’s prior

incarceration caused the State prison authoritities to determine

that he was not likely to reform. This material is contradicted in

specifics in the affidavit which accompanied the Rule 35

application.

The prosecutor also made allusion to alleged parole

violations under the earlier conviction. He made completely

unfounded and unsupported allegations that petitioner provided

money for counsel for other poeple and to silence witnesses,

neither of which charges was true or proven, much less

Suggested, by the testimony at the trial.

Mr. Flannery alluded to a Nebia hearing? and allegations

concerning checks which were not borne out by the record for,

indeed, after the Nebia hearing, the bail was accepted and the

petitioner released. He further contended that the petitioner

offered no proof of the route of the money and when counsel

attempted to interject, the sentencing court evidenced agreement

with the argument of the prosecution.

3. The hearing was held on the prosecution's motion to insure that the

securiiy posted in support of the petitioner's bail bond was not derived from

illegal or illicit sources.

—<"

We submit the sentencing court overlooked an extensive

explanation in affidavit form of all of the petitioner's finances

when it was assigned the case and decided to continue the bail

set by the Magistrate aad arraigning judge. That affidavit and

exhibits are part of the court file.

No opportunity was provided counsel to rebut these

unrelated, irrelevant misstatements other than to ask the

petitioner if he had anything to say. It is difficult, if not

impossible, to say with any certainty that a sentencing court was

not affected by these misstatements.

Indeed, in light of the petitioner’s role in this specific case,

as evidenced by the trial record, we suggest a pyramided

sentence of thirty (30) years strongly supports the contention

that the sentencing court was affected.

In addition to the possibility of being influenced by this

inaccurate material, the court relied on other considerations

which are not based on the record.

Judge Carter went on to assert that his basis for believing

society is entitled to a respite from petitioner was his contro!

over the “machinery” able to handle twelve pounds of heroin.

The trial record in this case does not support or suggest any such

control. An earlier statement by the court contradicted this

conclusion.

We contend Judge Carter singled out petitioner for a .

particularly harsh sentence, in light of this trial record, on an

unwarranted and unsupported conclusion that it affected an area

of New York City about which the court had particular concern.

A district judge certainly has a right to his opinion on social

conditions and may, under appropriate circumstances, publicly

express concern about them. But, we contend, he should avoid

even the appearance of punishing an individual defendant as a

result of frustration with the existence of those conditions.

The statement the court advanced concerning an area of

New York City and the context within which it was made leads

to a clear impression that petitioner was being sentenced because

of the court’s special concern based upon facts and evidence

outside the record.

It is respectfully submitted that this sentence is based on a

series of unsubstantiated conclusions, unwarranted assumptions

and personal grievances.

This indicates there were considerations in the sentence not

based upon the trial record, but rather on outside information

which petitioner should have been afforded an opportunity to

rebut, explain or, at the very least, clarify and place in a proper

context.

The fact that there is a significant possibility the sentencing

court relied upon incorrect, misleading and improper material is

heightened by the disparity of the sentence as amongst

petitioner’s co-defendants.‘

As repeatedly indicated, no matter how broadly the trial

record is interpreted, it does not sustain the sentence imposed on

petitioner. The courts have not hesitated to correct disparity.

“However, where the facts appearing in the

record point convincingly to the conclusion that

the district court has, without any justification,

arbitrarily singled out a minor defendant for the

imposition of a more severe sentence than that

imposed upon the co-defendants, this court will

not hesitate to correct the disparity. In so doing it

is exercising its supervisory control of the district

court, in aid of its appellate jurisdiction. This

control is necessary to proper administration of

4. The co-defendant Larca received a sentence of 15 years. The co-

defendant Klinger received a sentence of six months.

A wee mensmred

the federal system.” United States v. Wiley, 278

F.2d 500, 503 (7th Cir. 1960).

See also, United States v. C. apriola, 537 F.2d 319 (9th Cir. 1976).

The “cert worthiness” of this question is highlighted by this

Court's decision in United States v. Grayson, ___ U.S. ——

S. Ct. 2610 (1978), where the Court granted certiorari to

ultimately approve the practice of enhancing a defendant's

sentence under circumstances in which the trial judge finds that,

in testifying in his own defense, the accused willfully gave

material false testimony.

The holding in Grayson underscores, albeit in a slightly

different context, the need for a ruling concerning what other

criteria may properly be considered in deciding upon the length

of a penal sentence.

The current aggressiveness of prosecutors seeking to have

input upon and to shape sentencing, and the sheer passage of

time since this Court’s decisions in Williams v. New York, 337

U.S. 241, 69 S. Ct. 1079, and Townsend v. Burke, 334 U.S. 736,

68 S. Ct. 1252, 92 L. Ed. 1690 (1948), underscore the need for

final appellate review by this Court.

CONCLUSION

For the reasons stated, we respectfully pray that a writ of

certiorari to review the judgment of the United States Court of

Appeals for the Second Circuit be granted.

Respectfully submitted,

s/ Gustave H. Newman

Attorney for Petitioner

Roger Bennet Adler

On the Brief

me SL A eID Mane NE 0 Atti td 95 0

APPENDIX A — DECISION OF THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

DATED SEPTEMBER I, 1978

UNITED STATES COURT OF APPEALS

For tHE Seconp Circurtr

,.%

No. 1106—September Term, 1977.

(Argued July 17, 1978 Decided September 1, 1978.)

Docket No. 78-1131

Maus

Unitep States or AMERICA,

Appellee,

—_—_vV.—

MatrHew Maponna,

Defendant-Appellant.

PS None Cees

Before:

Mesknu, Circuit Judge, and

DumBauLp® and Port,** District Judges.

r™

Appeal from an order entered in the United States Dis-

trict Court for the Southern District of New York, Robert

L. Carter, Judge, denying appellant’s Rule 35 motion to

vacate or reduce a 30-year sentence imposed for violation

of federal] narcotics laws.

Affirmed.

sinner aliieingiiiaeniaas

Gustave H. Newman, New York, New York, for

Defendant-A ppellant.

a Hon. Edward Dumbauld, Senior District Judge of the Western Dis

trict of Pennsylvania, sitting by designation.

” Hon. Edmund Port, Senior District Judge of the Northern District

of New York, sitting by designation.

Appendix A

count and the substantive count were precisely the same.

however, appellant's argument is without merit.

Appellant does not dispute the lawfulness of his multi-

count conviction. Instead, he argues that 21 U.S.C. §§ 846

and 963 are ambiguous regarding punishment and that

such ambiguity should be resolved in his favor. See Simp-

son v. United States, 46 U.S.L.W. 4159, 4161-62 (U.S. Feb.

28, 1978); Prince v. United States, 352 U.S. 322 (1957).

In effect, appellant would have us treat the sentencing

here as if it were for armed bank robbery, for which mul-

tiple sentences, either concurrent or consecutive, may not

be imposed. 18 U.S.C. §§ 2113(a) and (d). See United

States v. Mariani, 539 F.2d 915. 917 (2d Cir. 1976). This

we decline to do. Armed bank robbery is a variation of

bank robbery, and the less serious offense merges with

the more serious offense. However, a conspiracy is by its

very nature quite different than a substantive violation.

See lannelli v. United States, 420 U.S. 770 (1975). An

attempt merges into the completed crime; a conspiracy does

not merge with its object. An attempt requires but one

person for the offense; a conspiracy requires at least two.

A conspiracy also requires an agreement; an attempt does

not. Under the narcotics laws, the crime of conspiracy and

the crime of substantively violating the statute are so

clearly different that separate convictions are allowed.

See United States v. Bommarito, 524 F.2d 140 (2d Cir.

1975).

Appellant argues that because the crime of attempt and

the crime of conspiracy appear together in sections 846

and 963 (attempt and conspiracy treated the same for pun-

ishment purposes), and because an attempt merges with

the substantive offense, conspiracy should also merge with

the substantive offense, at least for purposes of sentencing.

He theorizes that Congress did not intend separate and

consecutive sentences for conspiracy to distribute or to

Appendix A

possess with intent to distribute and actual distribution or

possession with intent to distribute. We do not agree. In

Callanan v. United States, 364 U.S. 587 (1961), the Su-

preme Court noted that criminal conspiracies are danger-

ous to society in ways quite distinct from the dangers of

the substantive offenses and that the difference between a

conspiracy and a substantive offense is “‘a distinction

whose practical importance in the criminal law is not easily

overestimated.’” Jd. at 593-94. The Court also explained

that federal courts are to attribute “‘to Congress a tacit

purpose—in the absence of any inconsistent expression—

to maintain a long-established distinction between offenses

essentially different.’” Id. at 594. See also lannelli v.

United States, supra, 420 U.S. at 779. In the absence of

persuasive evidence, we simply cannot accept appellant’s

argument that Congress intende? in 1970 to overrule the

distinction between a conspiracy and a substantive violation

for purposes of sentencing. See United States v. Accardi,

342 F.2d 697, 701 (2d Cir.), cert. denied, 382 U.S. 954

(1965).

Appellant’s final argument is that the sentence was im-

posed in an illegal manner in that the district judge relied

on inaccurate information or considerations not based on

the record. The record clearly refutes this claim. The sen-

tence was within the statutory maximum. It was severe,

but, in the opinion of the district judge, so was the offense.

We agree.

Affirmed.

Ar pendix A

APPENDIX B — ORDER AFFIRMING OPINION

Joun P. Fuannery II, Assistant United States

Attorney, Southern District of New York

(Robert B. Fiske, Jr., United States Attor-

ney, Richard D. Weinberg, Assistant United

States Attorney, Southern District of New

York, of counsel), for the United States of

America.

Per Curiam:

This is an appeal from an order entered in the United

States District Court for the Southern District of New

York, Robert L. Carter, Judge, denying appellant Matthew

Madonna’s Rule 35 motion to vacate or reduce a 30-year

sentence imposed for violation of federal narcotics laws.

Appellant was indicted and convicted on two counts.

Count One was for conspiracy to distribute, to possess

with intent to distribute, and to import heroin, 21 U.S.C.

§§ 812, 841(a)(1), 841(b)(1)(A), 952(a). Count Two was

for distribution of heroin and possession with intent to dis-

tribute, 21 U.S.C. §§ 812, 841(a) (1), 841(b)(1)(A). He was

sentenced to 15 years in prison on each count, to be served

consecutively, and fined $25,000 on each count.

Appellant claims that Congress did not intend to allow

for consecutive sentences on each conviction “when both

crimes stem from the same single act.” Appellant’s Reply

Brief at 2. We note at the outset that appellant was

charged and convicted on a conspiracy count which included

an element different than anything contained in the sub-

stantive count, namely, conspiring to import heroin. 21

U.S.C. §952(a). This element alone, entirely apart from

the other conspiracy elements of Count One and from the

substantive charges in Count Two, is punishable by im-

prisonment of up to 15 years and a fine of up to $25,000

or both. 21 U.S.C. §§ 963, 960(b). Even if the conspiracy

BAe, OOO brs ahmed

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated Term of the United States Court of Appeals for

the Second Circuit, held at the United States Courthouse in the

City of New York, on tie first day of September one thousand

nine hundred and seventy-eight

Present:

HON. THOMAS J. MESKILL

Circuit Judge

HON. EDWARD DUMBAULD

HON. EDMUND PORT

District Judges

Circuit Judges

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

MATTHEW MADONNA, ak a “Paul DeRobertis”™,

SALVATORE LARCA, JOSEPH BORIELLO, JOSEPH

FLORIO, RICHARD KLINGER,

Defendants.

Appendix B

MATTHEW MADONNA, a/k/a “Paul DeRobertis”,

Defendant-Appellant.

78-1131

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of record

from the United States District Court for the Southern District

of New York, and was argued by counsel.

ON CONSIDERATION WHEREOF, it is now hereby

ordered, adjudged, and decreed that the order of said District

Court be and it hereby is affirmed in accordance with the

opinion of this court.

A. DANIEL FUSARO,

Clerk

By: Arthur Feller

Deputy Clerk

ee ee

Mastered.

Pe en ee ee ee ne, a ee

Se ee

APPENDIX C — STATUTORY PROVISIONS INVOLVED

Rule 35:

“Correction or Reduction of Sentence

The court may correct an illegal sentence at

any time and may correct a sentence imposed in

an illegal manner within the time provided herein

for the reduction of sentence. The court may

reduce a sentence within 120 days after the

sentence is imposed, or within 120 days after

receipt by the court of a mandate issued upon

affirmance of the judgment or dismissal of the

appeal, or within 120 days after entry of any

order or judgment of the Supreme Court denying

review of, or having the effect of upholding, a

judgment of conviction. The court may also

reduce a sentence upon revocation of probation

as provided by law.”

As amended Feb. 28, 1966, eff. July 1, 1966.

Appendix C

21 U.S.C. §812.

“Schedules of controlled substances—Establishment

(a) There are established five schedules of controlled substances, to

be known as schedules I, II, III, IV, and V. Such schedules shall ini-

tially consist of the substances listed in this section. The schedules

established by this section shall be updated and republished on a semi-

annual basis during the two-year period beginning one year after the

date of enactment of this subchapter and shall be updated and repub-

lished on an annual basis thereafter.

Placement on schedules; findings required

(b) Except where control is required by United States obligations

under an international treaty, convention, or protocol, in effect on the

effective date of this part, and except in the case of an immediate pre-

cursor, a drug or other substance may not be placed in any schedule

unless the findings required for such schedule are made with respect

to such drug or other substance. The findings required for each of

the schedules are as follows:

(1) Schedule I.—

(A) The drug or other substance has a high potential for

abuse.

(BR) The drug or other substance has no currently accepted

medical use in treatment in the United States.

other substance under medical supervision.

(2) Schedule IL—

(A) The drug or other substance has a high potential for

abuse.

(B) The drug or other substance has a currently accepted med-

ical use in treatment in the United States or a currently accepted

medical use with severe restrictions.

psychological or physical dependence.

(3) Schedule ITI.—

(A) The drug or other substance has a potential for abuse less

than the drugs or other substances in schedules I and II.

ee ee

etl SAMs CR lew Ah ERO te. A aN a oe

UL Te re ee S

Appendix C

(B) The drug or other substance has a currently accepted

medical use in treatment in the United States.

or low nhysical dependence or high psychological dependence.

(4) Schedule IV.—

(A) The drug or other substance has a low potential for abuse

relative to the drugs or other substances in schedule III.

(B) The drug or other substance has a currently accepted med-

ical use in treatment in the United States.

physical dependence or psychological dependence relative to the

drugs or other substances in schedule III.

(5) Schedule V.—

(A) The drug or other substance has a low potential for abuse

relative to the drugs or other substances in schedule IV.

(B) The drug or other substance has a currently accepted med-

ical use in treatment in the United States.

physical dependence or psychological dependence relative to the

drugs or other substances in schedule IV.

Initial schedules of controlled substances

pursuant to section 811 of this title, consist of the following drugs or

other substances, by whatever official name, common or usual name,

chemical name, or brand name designated:

Schedule I bs

(a) Unless specifically excepted or unless listed in another

schedule, any of the following opiates, including their isomers, es-

ters, ethers, salts, and salts of isomers, esters, and ethers, when-

ever the existence of such isomers, esters, ethers, and salts is pos-

sible within the specific chemical designation:

(1) Acetylmethadol.

(2) Allylprodine.

(3) Alphacetylmathadol.

(4) Alphameprodine.

(5) Aiphamethadol.

(6) Benzethidine.

(7) Betacetylmethadol.

(8) Betameprodine.

te otters — )

10a lla

; *

Appendix C Appendix C

(9) Betamethadol. , (4) Codeine methylbromide.

(10) Betaprodine. i (5) Codeine-N-Oxide.

(11) Clonitazene. (6) Cyprenorphine.

(12) Dextromoramide. (7) Desomorphine.

(13) Dextrorphan. (8) Dihydromorphine.

(14) Diampromide. (9) Etorphine.

(15) Diethylthiambutene. (10) Heroin.

(16) Dimenoxadol.

(17) Dimepheptanol.

(18) Dimethylthiambutene.

(19) Dioxaphety! butyrate.

(20) Dipipanone.

(21) Ethylmethylthiambutene.

(22) Etonitazene.

(23) Etoxeridine.

(24) Furethidine.

(25) Hydroxypethidine.

(26) Ketobemidone.

(27) Levomoramide.

(28) Levophenacylmorphan.

(29) Morpheridine.

(30) Noracymethadol.

(31) Norlevorphanol.

(32) Normethadone.

(33) Norpipanone.

(34) Phenadoxone.

(35) Phenampromide.

(11) Hydromorphinol.

(12) Methyldesorphine.

(13) Methylhydromorphine.

(14) Morphine methylbromide.

(15) Morphine methylsulfonate.

(16) Morphine-N-Oxide.

(17) Myrophine.

(18) Nicocodeine.

(19) Nicomorphine.

(20) Normorphine.

(21) Pholcodine.

(22) Thebacon.

schedule, any material, compound, mixture, or preparation, which

contains any quantity of the following hallucinogenic substances,

or which contains any of their salts, isomers, and salts of isomers

whenever the existence of such salts, isomers, and salts of isomers

is possible within the specific chemical designation:

(1) 3,4-methylenedioxy amphetamine.

2 ri =e RNS SA Cd ER RR ie ee REE Sl LAR ere SAL Bene = oe eS

(36) Phenomorphan. (2) 5-methoxy-3,4-methylenedioxy amphetamine.

(37) Phenoperidine. (3) 3,4,5-trimethoxy amphetamine.

(38) Piritramide. (4) Bufotenine.

(39) Proheptazine. (5) Diethyltryptamine.

(40) Properidine. (6) Dimethyltryptamine.

(41) Racemoramide. . (7) 4-methyl]-2,5-dimethoxyamphetamine.

(42) Trimeperidine. (8) Ibogaine.

(9) Lysergic acid diethylamide.

(10) Marihuana.

(11) Mescaline.

(12) Peyote.

(13) N-ethyl-3-piperidy] benzilate.

(b) Unless specifically excepted or unless listed in another

schedule, any of the following opium derivatives, their salts, iso-

mers, and salts of isomers whenever the existence of such salts,

isomers, and salts of isomers is possible within the specific chemi-

cal designation:

_ (14) N-methyl-3-piperidy] benzilate.

(1) Acetorphine. (15) Psilocybin.

(2) Acety!dihydrocodeine. (16) Psilocyn.

(3) Benzylmorphine. (17) Tetrahydrocannabinols.

12a

Appendix C

Schedule II

(a) Unless specifically excepted or unless listed in another

schedule, any of the following substances whether produced di-

rectly or indirectly by extraction from substances of vegetable or-

igin, or independently by means of chemical synthesis, or by a

combination of extraction and chemical synthesis:

(1) Opium and opiate, and any salt, compound, derivative,

or preparation of opium or opiate.

(2) Any salt, compound, derivative, or preparation thereof

which is chemically equivalent or identical with any of the

substances referred to in clause (1), except that these sub-

stances shall not include the isoquinoline alkaloids of opium.

(3) Opium poppy and poppy straw.

(4) Coca leaves and any salt, compound, derivative, or

preparation of coca leaves, and any salt, compound, deriva-

tive, or preparation thereof which is chemically equivalent or

identical with any of these substances, except that the sub-

stances shall not include decocainized coca leaves or extrac-

tion of coca leaves, which extractions do not contain cocaine

or ecgonine.

(b) Unless specifically excepted or unless listed in another

schedule, any of the following opiates, including their isomers, es-

ters, ethers, salts, and salts of isomers, esters and ethers, when-

ever the existence of such isomers, esters, ethers, and salts is pos-

sible within the specific chemical] designation:

(1) Alphaprodine.

(2) Anileridine.

(3) Bezitramide.

(4) Dihydrocodeine.

(5) Diphenoxylate.

(6) Fentanyl.

(7) Isomethadone.

(8) Levomethorphan.

(9) Levorphanol.

(10) Metazocine.

(11) Methadone.

(12) Methadone-Intermediate, 4-cyano-2-dimethylamino-

4, 4-dipheny] butane. ;

(13) Moramide-Intermediate, 2-methy]-3-morpholino-1, 1-

diphenylpropane-carboxylic acid.

(14) Pethidine.

a teat

ee Een eee ee ee eee

I2a

Appendix C

(15) Pethidine-Intermediate-A, 4-cyano-l-mcthyl-4-phen-

ylpiperidine.

(16) Pethidine-Intermediate-B, ethyl-4-phenylpiperidine-

4-carboxylate.

(17) Pethidine-Intermediate-C, 1-methyl-4-pheny]lpiperi-

dine-4-carboxylic acid.

(18) Phenazocine. °

(19) Piminodine.

(20) Racemethorphan.

(21) Racemorphan.

schedule, any injectable liquid which contains any quantity of

methamphetamine, including its salts, isomers, and salts of iso-

mers.

Schedule Iil

(a) Unless specifically excepted or unless listed in another

schedule, any material, compound, mixture, or preparation which

contains any quantity of the following substances having a stimu-

lant effect on the central nervous system:

(1) Amphetamine, its salts, optical isomers, and salts of its

optical isomers.

(2) Phenmetrazine and its salts.

(3) Any substance (except an injectable liquid) which con-

tains any quantity of methamphetamine, including its salts,

isomers, and salts of isomers.

(4) Methylphenidate.

(b) Unless specifically excepted or unless listed in another

schedule, any material, compound, mixture, or preparation which

contains any quantity of the following substances having a de-

pressant effect on the central nervous system:

(1) Any substance which contains any quantity of a deriv-

ative of barbituric acid, or any salt of a derivative of barbi-

turic acid.

(2) Chorhexadol.

(3) Glutethimide.

(4) Lysergic acid.

(5) Lysergie acid amide.

(6) Methyprylon.

(7) Phencyclidine.

(8) Sulfondiethylmethane.

(9) Sulfonethy]lmethane.

(10) Sulfonmethane.

l4a

15a

Appendix C

(d) Unless specifically excepted or unless listed in another

schedule, any material, compound, mixture, or preparation con-

taining limited quantities of any of the following narcotic drugs,

or any salts thereof:

(4) Ethchlorvynol.

(5) Ethinamate. .

(6) Methohexital.

(7) Meprobamate.

(1) Not more than 1.8 grams of codeine per 100 milliliters

or not more than 90 milligrams per dosage unit, with an equal

or greater quantity of an isoquinoline alkaloid of opium.

(2) Not more than 1.8 grams of codeine per 100 milliliters

or not more than 90 milligrams per dosage unit, with one or

more active, nonnarcotic ingredients in recognized therapeu-

tic amounts.

(3) Not more than 300 milligrams of dihydrocodeinone per

100 milliliters or not more than 15 milligrams per dosage

unit, with a fourfold or greater quantity of an isoquinoline

alkaloid of opium.

(4) Not more than 300 milligrams of dihydrocodeinone per

100 milliliters or not more than 15 milligrams per dosage

unit, with one or more active, nonnarcotic ingredients in rec-

ognized therapeutic amounts.

(5) Not more than 1.8 grams of dihydrocodeine per 100

milliliters or not more than 90 milligrams per dosage unit,

with one or more active, nonnarcotic ingredients in recog-

nized therapeutic amounts.

(6) Not more than 300 milligrams of ethylmorphine per

100 milliliters or not more than 15 milligrams per dosage

unit, with one or more active, nonnarcotic ingredients in rec-

ognized therapeutic amounts.

(7) Not more than 500 milligrams of opium per 100 millili-

ters or per 100 grams, or not more than 25 milligrams per

dosage unit, with one or more active, nonnarcotic ingredients

in recognized therapeutic amounts.

(8) Not more than 50 milligrams of morphine per 100 mil-

liliters or per 100 grams with one or more active, nonnarcotic

ingredients in recognized therapeutic amounts.

Schedule IV

(1) Barbital.

(2) Chloral betaine.

(3) Chloral hydrate.

(8) Methylphenobarbital.

(9) Paraldehyde.

(10) Petrichloral.

(11) Phenobarbital.

Schedule V

Any compound, mixture, or preparation containing any of the

following limited quantities of narcotic drugs, which shall include

one or more nonnarcotic active medicinal ingredients in sufficient

proportion to confer upon the compound, mixture, or preparation

valuable medicinal qualities other than those possessed by the nar-

cotic drug alone:

(1) Not more than 200 milligrams of codeine per 100 mil-

liliters or per 100 grams.

(2) Not more than 100 milligrams of dihydrocodeine per

100 milliliters or per 100 grams.

(3) Not more than 100 milligrams of ethylmorphine per

100 milliliters or per 100 grams.

(4) Not more than 2.5 milligrams of diphenoxylate and not

less than 25 micrograms of atropine sulfate per dosage unit.

(5) Not more than 100 milligrams of opium per 100 millili-

ters or per 100 grams.

Stimulants or depressants containing active medicinal

ingredients; exception

(d) The Attorney Genera! may by regulation except any compound,

mixture, or preparation containing any depressant or stimulant sub-

stance in paragraph (a) or (b) of schedule III or in schedule IV or Vv

from the application of all or any part of this subchapter if (1) the

compound, mixture, or preparation contains one or more active medici-

nal ingredients not having a depressant or stimulant effect on the cen-

tral nervous system, and (2) such ingredients are included therein in

such combinations, quantity, proportion, or concentration as to vitiate

the potential for abuse of the substances which do have a depressant

or stimulant effect on the central nervous system.

Pub.L. 91-513, Title II, § 202, Oct. 27, 1970, 84 Stat. 1247.”

16a

Appendix C

21 U.S.C. §841

“Prohibited acts A—Unlawful acts

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

for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or possess with in-

tent to manufacture, distribute, or dispense, a controlled sub-

stance ;

Penalties

(b) Except as otherwise provided in section 845 of this title, any

person who violates subsection (a) of this section shall be sentenced as

follows:

(1) (A) In the case of a controlled substance in schedule I or II

which is a narcotic drug, such person shall be sentenced to a term of

imprisonment of not more than 15 years, a fine of not more than

$25,000, or both. If any person commits such a violation after one or

more prior convictions of him for an offense punishable under this

paragraph, or for a felony under any other provision of this subchap-

ter or subchapter II of this chapter or other law of the United States

relating to narcotic drugs, marihuana, or depressant or stimulant sub-

stances, have become final, such person shall be sentenced to a term of

imprisonment of not more than 30 years, a fine of not more than

$50,000, or both. Any sentence imposing a term of imprisopment un-

der this paragraph shall, in the absence of such a prior conviction, im-

pose a special parole term of at least 3 years in addition to such term

of imprisonment and shall, if there was such a prior conviction, im-

pose a special parole term of at least 6 years in addition to such term

of imprisonment.”

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.