# Petition — Madonna v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 439 U.S. 1069

## Text

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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

ul
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

ii

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

iv

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

2

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).

3

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.

4

} 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.

5

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.

6

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

7

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.

4

8

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

9

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.

10

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.”

12

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.

13

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

14

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

15

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.

16

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).”

17

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.

vw

—<"

19

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.

20

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

21

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

o?

me SL A eID Mane NE 0 Atti td 95 0

la

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

,.%

7

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™

nd

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.

2a
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

3a
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.

4a

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.

6a

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

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Mastered.

Pe en ee ee ee ne, a ee

Se ee

7a

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.

(C) There is a lack of accepted safety for use of the drug or
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.

(C) Abuse of the drug or other substances may lead to severe
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

9a

Appendix C

(B) The drug or other substance has a currently accepted
medical use in treatment in the United States.

(C) Abuse of the drug or cther substance may lead to moderate
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.

(C) Abuse of the drug or other substance may lead to limited
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.

(C) Abuse of the drug or other substance may lead to limited
physical dependence or psychological dependence relative to the
drugs or other substances in schedule IV.

Initial schedules of controlled substances

(c) Schedules I, II, III, IV, and V shall, unless and until amended
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.

(c) Unless specifically excepted or unless listed in another
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

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.

(c) Unless specifically excepted or unless listed in another
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
Appendix C

(c) Nalorphine.
(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.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1831%3A1. Public record. Not legal advice.