Petition — Vila v. United States

Supreme Court brief1979

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3 Supreme Court, UR

FILED

JUN 6 W979 |

In THE “MICHAEL RovAK, JR., CLERK

Supreme Court of the United States

October Term, 1978

No. ~~? ] g 29

JAIME VILA,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

MARTIN JAY SIEGEL

Attorney for Petitioner

292 Madison Avenue

New York, N.Y. 10017

HARVEY J. MICHELMAN,

Of Counsel

ees Sess

DICK BAILEY PRINTERS, 290 RICHMOND AVENUE, S.1., N.Y. 10302

TEL.: (212) 447-5358

—————————

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TABLE OF CONTENTS

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ESI 5 RS a a a

Rt ee re

SE FD a a ea eT

REASONS FOR GRANTING THE WRIT:

1. Did the Failure of the Government to Arraign the Peti-

tioner Promptly Warrant a Dismissal of the Indictment? . .

A. The Defendant's Right to a Speedy Trial was Denied

B. The Provisions of the Speedy Trial Act Were Not

es sig) 4 bo wu Rb obawale ec

C. The Defendant was Denied Effective Assistance of

Counsel Because of the Denial of the Right to Ade-

Uy INS BH EPUIOUEE onc ccc ccc ccanceeens

2. Did the Failure of the Government to Produce a key

Witness deprive Petitioner of his right of Confrontation? .

A. The Defendant was denied his right of Confronta-

tion and the Right to Prove a Defense ...............

B. It was Reversible Error to Introduce Into Evidence

Testimony and Transcripts of the Defendant's

Telephone Conversations with Rubio-Fernandez ......

Page

3. It was Reversible Error For the Trial Court Judge to

Give a Second Modified Allen Charge to the Jury....... 13

4. Is an Indictment based solely upon Hearsay without

Justification, so defective as to warrant a Dismissal of said

a Sek a 15

5. Does the Misclassification of Cocaine Constitute a

Violation of Due Process of Law as Applied to the Peti-

MANU Et WSS Sine wb Who asks uiose bcs seadacteecess 19

SCCM Sal cie seek bchabcvnsbheddneeeccecns 27

Appendix

NE Silent Gas whaens ipa eh. la

U.S. Court of Appeals Opinion Affirming Conviction... 6a

TABLE OF CASES

Abie State Bank v. Bryan, 282 U.S. 765 (1921) .......... 24

Alten ¥. U.S., 164 U.S. 492 (1896)... cc cccccccccscecs 13

Barber v. Page, 390 U.S. 719 (1968) ........ ccc cee eee 12

Barbier v. Connolly, 113 U.S. 27 (1885) ..... 0.00000 005 25

Barker v. Wingo, 407 U.S. $14 (1972) ....... ccc cece ues 8

Bolling v. Sharpe, 347 U.S. 497 (1954) ...... 0.0 c cece 26

Page

Brown v. Bd. of Education, 347 U.S. 483 (1954) ........... 4

Chambers v. Miss., 410 U.S. 284... 66. cece eee ees 12

Davis v. Alaska, 415 U.S. 308 (1974) .... 6.6.6 e eee eens 11

Dickey v. Florida, 398 U.S. 30 (1970) «2... 66. eee eee ees N

Douglas v. Alabama, 380 U.S. 415 (1965) ......-.-+555: il

Fields v. Pegron, 375 F. 2d 624 (4th Cir. 1977) ........-- 10

Furman v. Georgia, 408 U.S. 238 (1972) . 2... 6. e eee 25

Giles v. Maryland, 386 U.S. 66 (1967) . 2... cece eres 9

Green v. U.S., 309 F. 2d 852 (Sth Cir. 1952) .........55- 14

Griffin v. Ill., 351 U.S. 12 (1956) 0... eee eee eee ee eee 26

Hodgson v. Vt., 168 U.S. 262 (1897)... 6.6 cece eee eens 25

In Re Gault, 387 U.S. 1 (1967)... 6... cee eee eee es 26

Jenkins v. U.S., 380 U.S. 445 (1965) «6. cee ee 15

Leary v. U.S., 395 U.S. 6 (1969)... 2... eee cece eens 24

Loving v. Virginia, 388 U.S. 1 (1969) .... 2.6... ee eee 24

Nelson v. O'Neil, 402 U.S. 622 (1971) 2... 6c eens 11

Page

Police Dept. of Chicago v. Mosley, 408 U.S. 92 (1972)... 23

Rhodes v. U.S., 286 F. 2d 59 (4th Cir.) Cert. den. 364 U.S.

PUTT ne Sensei lakes cieiakss)..,... 5. 14

Schneider v. Rusk, 377 U.S. 163 RE ee Se Ls 25

Skinner v. Okla., 316 U.S. $35 nee fe On 25

Turner v. U.S., 396 U.S. 398 a ee 23

U.S. v. Arcuri, 405 F. 2d 691 (2d Cir. 1968) ............. 17

United States vy. Beltram, 388 F. 2d 449 (2d Cir. 1968).... 16

United States v. Burse, 531 F. 2d 1151 (2d Cir. 1976)... .. 18

United States y. Catino, 402 F. 2d 491 (2d Cir. 1968) ..... 16

United States v. Costello, 350 U.S. 359, 76 S. Ct. 406 100

Pee PT siixs iniylal ling iS ia 15

United States v. Didier, $42 F. 2d 1182 (2d Cir. 1976).... 9

United States Estepa, 471 F. 2d 1132 (2d Cir. 1972)... .. 17

United States v. Fioravanti, 412 F. 24 407 (3d Cir.) Cert,

tet nam, eT Te 14

United States v. Lane, 561 F. 2d 1075 (2d Cir. 1977) ...... 9

United States v. Payton, 363 F. 2d 996 (2d Cir. 1966) .....

United States v. Ramirez, 482 F. 2d 807 (2d Cir. 1976)....

United States v. Seawell, 550 F. 2d 1159 (9th Cir. 1977)...

United States v. Smaldone, 484 F. 2d 311 (10th Cir. 1973) .

United States v. Umans, 368 F. 2d 725 (2d Cir. 1966) ....

United States v. Weiner, 578 F. 2d 757 (9th Cir. 1978) ....

United States Department of Agriculture v. Moreno, 413

U.S. $28 (1973) ....cccssoce

@eeeeoeeveeeveoeeeveeeeeeeeeeee ee

AUTHORITIES AND STATUTES

United States Constitution

Sixth Amendment ........

United States Code

18 U.S.C. Section 3161(c)(h)

18 U.S.C. Section 2511(c)(d)

28 U.S.C. Section 455 .....

21 U.S.C. Sections 801-966

Cea eOO8 620-0263 6288.9 Oe

Page

Other Statutes

ME 5 ASS DNS SES vee baie Celuewer es k, 22

PME MU bo SATIN y See deswhse weicateee nt. 22

Other Authorities

5 J. Wigmore, Evidence Section 1395 (3rd Ed. 1940)... 4]

R. Longeman, Drugs from ‘‘A”’ to “Z"': A ‘Dictionary

(1969)

PUAN SCN RAEM SMU NS ICUs kid woh Vea tan oo ies 20

E. Jones, I. The Life and Work of Sigmund Freud

POON MNES CIN ONS cnldeenng ex ccatiede es: cu. 21

E.G. Kahn, The Big Drink: The Story of Coca-Cola

iit Nie SET OTT TET TU an 21

Musto, The American tr ois inc OE CRE TINO 21

Hampton’s Magazine 605 SO pee: 21

IN THE

SUPREME CC JURT OF THE UNITED STATES

OCTOBER TERM 1978

JAIME VILA,

Petitioner,

-against-

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED ST ATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

Petitioner prays that a writ of certiorari issue LO review the

judgment of the United States Court of Appeals for the Second

Circuit entered in the above entitled case on the Ist day of May,

1979, which affirmed a judgment of conviction heard with a

jury before the Honorable Pierre N. Leval in the United States

District Court for the Southern District of New York for viola-

tion of:

(a) Title 21 U.S.C. §846 (Conspiracy to possess and

cistribute cocaine)

(b) Title 21 U.S.C. §841; §R41(b) 1A) and 18 U.S.C. §2

(Possession with intent to distribute cocaine and distribu-

tion of cocaine)

Appellant was sentenced and is presently serving concurrent

terms of 15 years to be followed by special parole of 20 years

and a $20,000.00 fine on each count,

THE OPINION BELOW

The case was affirmed in a written opinion by the United

States Court of Appeals for the Second Circuit. This case has

not yet been reported. A copy of the opinion affirming the con-

viction is attached herein.

JURISDICTION

The Judgement of the United States Court of Appeals for the

Second Circuit wa: entered on May 1, 1979 A request has been

made for an extension of time to file this petition. Jurisdiction

of this Court is invoked under Title 28, §1241(1), United States

Code.

QUESTIONS PRESENTED

1. Did the failure of the Government to arraign the Petitioner

promptly warrant a dismissal of the indictment?

2. Did the failure of the Government to produce a key witness

deprive Petitioner of his right of confrontation? |

3. Did the Judge’s giving of a second ‘‘Allen’’ Charge render

the verdict of the jury coerced as to deprive the petitioner of a

fair trial?

4. Is an indictment based solely upon hearsay without

justification, so defective as to warrant a dismissal of said in-

dictment?

5. Does the misclassification of cocaine constitute a violation

of due process of law as applied to the petitioner?

STATUTES INVOLVED

21 U.S.C. 841

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

for any person knowingly or intentionally

(1) to manufacture, distribute, or dispense, Or possess

with intent to manufacture, distribute, or dispense, a

controlled substance; or

(2) to create, distribute, or dispense, or possess with

intent to distribute or dispense, a counterfeit

substance.

‘*(b) Except as otherwise provided in section 405 (21

U.S.C. §845), 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 I 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 offens

punishable under this paragraph, or for a felony

under any other provision of this title or title 111 or

other law of the United States relating to narcotic

drugs, Marihuana, or depressant or stimulant

substances, 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 imprisonment

under this paragraph shall, in the absence of such a

prior conviction, impose a special parole of at least 3

years in addition to such term of imprisonment and

shall, if there was such a prior conviction, impose a

special parole term of at least 6 years in addition to

such term of imprisonment.

#b) In the case of a controlled substance in schedule I

or II which is not a narcotic drug or in the case of any

controlled substance in schedule III, such person shall

be sentenced to a term of imprisonment of not more

than 5 years, a fine of not more than $15,000, 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 title or title III or

other law of the United States relating to narcotic

drugs, marihuana, or depressant or stimulant

substances, have become final, such person shall be

sentenced to a term of imprisonment of not more

than 10 years, a fine of not more than $30,000, or

both. Any sentence imposing a term of imprisonment

under this paragraph shall, in the absence of such a

prior conviction, impose a special parole term of at

least 2 years in addition to such term of imprisonment

and shall, if there was such a prior conviction, impose

a special parole of at least 4 years in addition to such

term of imprisonment.’’

21 U.S.C. 846

‘‘Any person who attempts or conspires to commit any of-

fense defined in this title is punishable by imprisonment or

fine or both which may not exceed the maximum punish-

ment prescribed for the offense, the commission of which

was the object of the attempt or conspiracy. (Oct. 27,

1970, P.C. 91-513, Title Il, Part D, §406, 84 Stat. 1265).”’

STATEMENT OF THE CASE

A. The Indictment

On October 23, 1977 Indictment No. 77 Cr 767 was filed,

charging Jaime Vila and eight co-defendants with conspiracy to

distribute of one and one-half kilograms of Cocaine on August

10, 1978 (Count 2).

On January 24, 1978 superceding Indictment No. S 77 767

was filed accusing the same nine defendants with the same

criminal violations.

B. Motions Prior to Trial

The pertinent motions filed prior to trial were as follows:

(a) Defendant Vila moved prior to trial by written papers, to

dismiss the indictment on the grounds of a denial of his right to

a ‘‘speedy trial’’ due to the Government’s 82 day delay in bring-

ing him from California to New York. Said motion was denied

orally from the bench.

(b) Defendant Vila also moved for among other things, a

dismissal of the indictment upon the grounds that the criminal

classification of cocaine as a narcotic drug is without sufficient

rationale and would deprive the defendant of liberty without

due process of law, or alternately, that the Court order that the

charges be punishable only under the provisions applicable to

non-narcotics pursuant to 28 U.S.C. §841(b)(1)(B).

for a dismissal of the indictment upon the grounds that the in-

dictment was wholly supported upon hearsay testimony without

justification therefor. Said motion was orally denied from the

bench.

With the permission of the Court, all motions made by any of

the defendants were deemed joined in by the other defendants.

C. Facts Below

On October 23, 1977 the defendant Jaime Vila, and eight co-

defendants were charged in indictment No. 77 Cr 767 with con-

spiracy to sell cocaine (Count 1) and with participating in the

distribution of one and one-half kilograms of cocaine on

August 10, 1978 (Count 2).

Defendant Vila was arrested pursuant to this indictment in

Los Angeles, California on November 14, 1977 and held in lieu

of one million dollars bail. He appeared at a Removal Hearing

in the United States District Court in Los Angeles, California on

December 9, 1977 and was ordered removed to the United

States District Court for the Southern District of New York. 82

days after his arrest, and on February 2, 1978, Jaime Vila was

arraigned in the United States District Court for the Southern

District of New York, the Government offering an excuse that it

could not transport the defendant by commercial airline.

However, it must be noted that immediately after the trial of

this indictment, the defendant was flown by the Government on

a commercial airline to Los Angeles to stand trial on separate

charges there, thus negating the Government's argument that it

could not bring the defendant Vila to New York rapidly to af.-

ford him his right to a speedy trial.

The trial of this action commenced on March 6, 1978 and was

completed on May 19, 1978 wherein the jury found the defen-

dant Vila, and co-defendants Luis Hernandez and Narcissus

Guzman guilty of both counts charged in the indictment and ac-

quitted all the remaining defendants on trial.

At the trial with respect to the conspiracy count, other than

Joint Task Force Agents, the prime witness against the defen-

dant was an unindicted co-conspirator, to wit: Sonny Perlman.

The most crucial evidence with respect to the conspiracy were

taped conversations allegedly made by a paid informant, Jorge

Rubio-Fernandez, who allegedly conversed with most of the

members of the alleged conspiracy. Rubio-Fernandez was under

the control of the United States Government by virtue of its

Federal Marshal's Witness Protection Program and it was not

until the trial was well under way that the Government an-

nounced that he had disappeared. Objections were made to the

admissibility of the taped recordings containing the voice of

Rubio-Fernandez on one hand and some of the defendants on

the other hand. Said objections were overruled.

Throughout the trial the Government witnesses were asked on

cross-examination as to whether they appeared before the

Grand Jury, to which they all replied in the negative.

During the trial the defendant moved for a mis-trial or in the

alternative to dismiss the indictment upon the grounds that the

indictment was based wholly upon hearsay testimony without

sufficient reason being given therefor. Said motions were

denied.

The above constitutes the essential points, both pre-trial and

during the trial which it is respectfully urged gives grounds for

the appeal herein.

By reason of the foregoing facts and the points discussed

herein, the conviction below should be reversed.

REASONS FOR GRANTING WRIT

THE FAILURE TO ARRAIGN THE DEFENDANT

AFTER HIS ARREST CONSTITUTES A DENIAL OF

HIS RIGHT TO A SPEEDY TRIAL,

The defendant was arrested on November 14, 1977 in Los

Angeles, California, by agents of the Drug Enforcement Ad-

ministration. Defendant exercised his rights to a removal of pro-

ceeding, and on or about December 9, 1977, the United States

District Court for the Southern District of California ordered

the defendant removed.

Thereafter, the defendant remained in the custody of the

Government and, through no fault of his own, was not brought

before the United States District Court for the Southern District

of New York for arraignment until February 2, 1977, some 82

days after his arrest and 54 days after removal was ordered by

the United States District Court in '.os Angeles. The Govern-

ment, in its attempt to explain the Celay in transporting the

defendant from Los Angeles to New York, stated it could not

-transport the defendant by commercial airlines from Los

Angeles to New York. However, the dsefendant was transferred

by commercial airlines from Los Angeles to Levenworth, Kan-

sas, where he was incarcerated in the U.S. Penitentiary and then

taken on a circuitous trip throughout the United States until he

finally arrived in New York.

The day after the completion of the New York trial the

dsefendant was flown by commercial airline to Los Angeles to

stand trial there in complete contradiction of the Government's

representations to the Court that it could not transport the

defendant expeditiously from Los Angeles to New York by

commercial airlines.

It is respectfully submitted that these actions on the part of

the Government (a) delayed the defendant's right to a speedy

trial, as guaranteed by the Sixth Amendment to the United

States Constitution; (b) violated the mandates of the Speedy

Trial Act of 1974, 18 U.S.C. §3161 et al: and (c) denied the

defe. dant the right to effective assistance of counsel.

A. The defendant's Right to a Speedy Trial Was Denied.

The right to a speedy trial in federal criminal prosecutions is

secured by the Sixth Amendment which provides, in part:

‘In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial... "’

U.S. Const., Amend. 6

This right to a speedy trial is a fundamental right, Barker vy.

Wingo, 407 U.S. 514, 92S. Ct. 2182, 33 L. Ed. 2d 101 (1972),

and serves various purposes. For example, the right to a speedy

trial protects the accused, if held in jail to await trial, against

proionged imprisonment and protects the accused’s right to

prompt inquiry into the criminal charges. See, c.g. Dickey v.

Florida, 98 U.S. 30, 90S. Ct. 1564, 26 L. Ed. 2d 26 (1970). In

addition to the general concern that all accused persons should

be treated according to decent and fair procedures, there is a

socictal interest in providing a speedy trial which exists separatc

from, and at times in opposition to, the interests of the accused.

See Barker v. Wingo, supra.

It is clear that a defendant's constitutional rights have been

denied if he is not brought to trial within such period of time as

is reasonable under the circumstances and the delay is due to

neglect or laches of the prosecution. It is respectfully submitted

that the delay in arraigning the defendant was unreasonable

under the circumstances. The Government has failed to produce

any explanation as to why the defendant could not be

transported by commercial airline all the way to New York. The

only possible explanation is neglect or laches. Consequently, it

is respectfully submitted that the trial court erred in refusing to

dismiss the indictment for failure to guarantee the defendant's

rights under the Sixth Amendment.

B. The Provisions of the Speedy Trial Act Were

Not Complied With.

18 U.S.C. §3161(c) provides:

The arraignment of a defendant charged in an information

or indictment with the commission of an offense shall be

held within 10 days from the filing date (and making

public) of the information or indictment, or from the date

a defendant has been ordered held to answer and has ap-

peared before a judicial officer of the court in which such

charge is pending, whichever date last occurs.

Clearly, the rules of the Speedy Trial Act of 1974 were

violated. Moreover, the reason for the delay in arraignment

does not fall under any of the ‘excluded delays” under 18

U.S.C. §3161(h).

The Second Circuit has ruled in United States v. Didier, 542

F. 2d 1182 (2d Cir. 1976), that the responsibility for speedy trial

enforcement rests primarily on district: courts and on the

Government and not on the defendant. This responsibility was

not met. The reason for the delay was deliberate procrastination

or negligent inaction on the part of the government which

deprived defendant of an adequate opportunity to prepare his

defense by a prompt inquiry into the criminal charges. United

States v. Lane, 561 F, 2d 1075 (2d Cir. 1977). Consequently, it 1s

respectfully submitted that the trial court erred in refusing to

dismiss the indictment for failure to comply with the provisions

of the Speedy Trial Act.

C. The Defendant was denied Effective Assistance of

Counsel Because of the Denial of the Right to

Adequately Prepare A Defense.

The Sixth Amendment to the United States Constitution

Guarantees an accused the right to effective assistance of

counsel, The Fifth Amendment to the United States Constitu-

tion guarantees that no person shall be deprived of life, liberty,

or property without due process of law, and to the extent that

an accused is deprived of adequate time for the preparation of

his defense, the defendant is held to be deprived of his rights

without due process of law. Fields v. Pegron, 375 F.2d 624 (4th

Cir. 1977),

An accused cannot be deprived of his right to have an ade-

quate opportunity to prepare his defense. United States vy.

Didier, 542 F. 2d 1182 (2d Cir. 1976). It is respectfully submit-

ted that this opportunity arose immediately after the

defendant’s arrest in Los Angeles because it is at that time that

the accused must be afforded the right to a prompt inquiry into

the criminal charges. See, e.g. Dickey v. Florida, 398 U.S. 30,

90S. Ct. 1564, 26 L. Ed. 2d 26 (1970). Consequently, it is

respectfully submitted that a new trial should be ordered.

THE FAILURE BY THE GOVERNMENT TO PRO-

DUCE A KEY WITNESS DENIED DEFENDANT HIS

RIGHT OF CONFRONTATION.

It is respectfully submitted that the dsefendant is entitled to a

new trial because the Government failed to produce Jorge Rubi-

Fernandez, the paid informant for the Government, or ascer-

tain his whereabouts. This failure to produce Mr. Rubio-

Fernandez: (a) deprived the defendant of his right of confron-

tation, as guaranteed by the Sixth Amendment to the United

States Constitution; and deprived the defendant of the right to

prepare his defense of entrapment, in violation of the Fifth

Amendment’s guarantee of due process of law; and (b) violated

18 U.S.C. §2511, prohibiting the interception and disclosure of

wire or oral communications, because the Government failed to

establish that either the defendant or Rubio-Fernandez con-

sented to the recording of their telephone conversations,

evidence of which was introduced at trial.

A. The defendant was Denied His Right of Confrontation

and the Right to Prove a Defense.

The right of the accused to be confronted by his accusers

before the tribunal which pronounces upon the facts has always

been deemed one of the most valuable safeguards of the citizen.

The Sixth Amendment to the Constitution guarantees the right

of an accused in a criminal prosecution ‘‘to be confronted with

the witnesses against him.’’ See Davis v. Alaska, 415 U.S. 308,

94S. Ct. 1105, 39 L. Ed. 2d 347 (1974). This right of confronta-

tion protects the accused against the peril of conviction by

means of ex parte testimony or affidavits given in his absence or

when he has no right to cross-examine. Davis v. Alaska, supra;

Nelson v. O’Neil, 402 U.S. 622, 91S. Ct. 1723, 29 L. Ed. 2d 222

(1971). As the Supreme Court noted in Douglas v. Alabama,

380 U.S. 415 (1965), “‘[o]ur cases construing the [confrontation]

clause hold that a primary interest secured by it is the right of

cross-examination.”’ /d. at 418, Professor Wigmore stated:

The main and essential purpose of confrontation is fo

secure for the opponent the opportunity of cross-

examination. The opponent demands confrontation, not

for the idle purpose of gazing upon the witness, or of being

gazed upon by him, but for the purpose of cross-

examination, which cannot be had except by the direct and

personal putting of questions and obtaining immediate

answers.

5 J. Wigmore, Evidence, Section 1395 (3d ed 1940) (emphasis in

original).

Cross-examination is the principal means by which the

believability of a witness and the truth of his testimony are

tested. The cross-examiner is not only permitted to delve into

the witness’ story to test the witness’ perceptions and memory,

but the cross-examiner is allowed to impeach—to discredit the

witness. See, e.g., Barber v. Page, 390 U.S. 719, 88S. Ct. 1318,

20 L. Ed. 2d 255 (1968); Chambers v. Mississippi, 410 U.S. 284,

93 S. Ct. 1038, 35 L. Ed. 2d 297 (1973); Nelson v. O'Neil, 402

U.S. 622, 91S. Ct. 1723, 29 L. Ed. 2d 222 (1971).

It is respectfully submitted that the failure by the Government

to produce Rubio-Fernandez in order to testify about his con-

versations with the defendant and the introduction of taped

transcripts in lieu thereof, violated the defendant’s right to

cross-examine Rubio-Fernandez as to these conversations, and

deprived the defendant of his right to pursue his defense of en-

trapment. The trial court refused to instruct the jury on the en-

trapment. Entrapment was the defendant's primary defense.

The trial court judge ruled that the dsefendant was not entitl-

ed to have an entrapment demonstrated. However, the failure

to demonstrate the defense of entrapment was solely due to the

Government's failure to produce Rubio-Fernandez. Upon

cross-examination of this witness, the defense of entrapment

could have been proved.

For the reasons referred to hereinabove, it is respectfully sub-

mitted that a new trial be ordered.

B. It was Reversible Error to Introduce Into Evidence

Testimony and Transcripts of the Defendant’s

Telephone Conversations With Rubio-Fernandez.

18 U.S.C. §2511(c) and (d) provide that it shall not be

unlawful for a person to intercept a wire or oral communication

where such person is a party to the communication or one of the

parties to the communication has given prior consent to such in-

terception. The Government never established that the consent

of Rubio-Fernandez was obtained in order to lay the foundation

for admitting tapes containing Rubio-Fernandez’ voice and that

of Vila and other co-defendants. The only evidence produced by

the Government was the hearsay statement by one of the

Government agents that Rubio-Fernandez had told him that he

consented. It is respectfully submitted that the hearsay state-

ment by one of the Government’s agents that a party to the con-

versation had given his prior consent was not a proper founda-

tion for the introduction of the taped transcripts of said conver-

sations. The consent by one of the parties to the conversations

cannot be established by a mere hearsay declaration. Conse-

quently, the introduction of the taped transcripts was illegal and

it is respectfully submitted that a new trial shoulds be granted.

IT WAS REVERSIBLE ERROR FOR THE TRIAL

COURT JUDGE TO GIVE A SECOND MODIFIED

ALLEN CHARGE TO THE JURY.

It is respectfully submitted that the trial court judge im-

properly gave a second modified A//en charge and that the giv-

ing of said second charge was coercive and prejudicial and a

denial of the defendant’s right to trial with due process of law.

Although the prime objective underlying the principle of trial

by jury in criminal prosecutions is the unanimous determination

of a defendant’s guilt or innocence by an impartial panel of his

peers, the possibility of irreconcilable disagreement among the

members of a jury is very real. Trial judges have long sought to

avoid the problems and inconveniences resulting from

deadlocked juries. The use of a supplemental charge to en-

courage deadlocked juries to arrive at a verdict was first approv-

ed by the United States Supreme Court in Allen v. United

States, 164 U.S. 492 (1896). There the Court ruled that a trial

court judge may urge jurors, particularly those in the minority,

to reconsider the evidence in light of the opinions held by the

other jurors and to agree on a unanimous verdict if one could be

achieved without sacrificing conscientiously held convictions.

The initial widespread acceptance of the Allen charge by the

courts has led to innumerable variations on the traditional

form. As a result of these variations, courts have been made

aware of the potential for jury coercion. Even when carefully

circumscribed, the Allen charge itself imports a certain degree

of coercive impact. The open appeal to minority jurors to

reconsider their views in light of the majority position creates

the real danger of acquiescence to ‘‘majority rule’’. See Green

v. United States, 309 F. 2d 852, 854 (Sth Cir. 1962); Rhodes v.

United States, 282 F. 2d 59, 63 (4th Cir.), cert. denied, 364 U.S.

912 (1960). Consequently, the use of the Allen charge creates

the serious potential of compromising a defendant’s constitu-

tional rights to due process and trial by a fair and impartial jury.

Any charge to the jury which in effect coerces a juror to concur

with the majority not only contravenes the notion of an impar-

tial jury, but forces a verdict in which some jurors are not con-

vinced beyond a reasonable doubt. United States v. Fioravanti,

412 F. 2d 407, 418 (3d Cir.), cert. denied, 396 U.S. 837 (1969).

Moreover, even if an attempt is made to neutralize the possibili-

ty of a verdict based on less than unanimity, use of the Allen

charge still creates the substantial risk that full and free jury

discussion will be deferred, prejudicing the accused’s right to be

saved from conviction by a deadlocked jury.

Although the use of an Allen charge has never been found

coercive on its face, a number of state and federal courts, reflec-

ting the growing discontent with the A/len charge, have taken

steps to proscribe or limit its use. Thus, in United States v.

Seawell, 55G ©. 2d 1159 (9th Cir. 1977), the Ninth Circuit of the

United States Court of Appeals ruled the following:

We have . . . recognized that even in its most acceptable

form, the Allen charge ‘‘approaches the ultimate per-

missable limits’’. Sullivan v. U.S., 414 F. 2d 714, 716 (9th

Cir. 1969). We conclude that permitting it ‘o be given twice

in a federal prosecution would be an unexpansion of its

use.

550 F. 2d at 1162-63 (emphasis supplied). See also United States

v. Weiner, 578 F. 2d 757, 765 n. 4 (9th Cir. 1978).

The Ninth Circuit reasoned in Seaweil that if the Allen charge

is to be an instruction on the law, there is little need to repeat it

except at the jury’s request. The Court reasoned that:

Repetition of the charge, together with rejection of the

jury’s second report of deadlock, is almost certain to con-

vey the thought that by failing to come to an

agreement—by once again reporting themselves at im-

passe—the jurors have acted contrary to the earlier instruc-

tion as that instruction was properly to be understood. . .

Given a second time, not at the request of the jury, but at

the instance of the judge, the charge no longer serves as an

instruction; no matter how it may be softened it becomes a

lecture sounding in reproof.

550 F. 2d at 1163.

It is true that generally, the test of whether a supplemental in-

struction to a jury is in error is to consider all the circumstances

to determine if the instruction was coercive or prejudicial. See,

e.g. Jenkins v. United States, 380 U.S. 445, 446, 85 S. Ct. 1059,

13 L. Ed. 2d 957 (1965). Nevertheless, pragmatic considerations

should preclude the application of this test when an Allen

charge is given more than once. First, a case by case approach

would provide little guidance, if any, to the trial court judge.

Second, defendants would always face the insurmountable dif-

ficulties in attempting to show prejudice. Finally, because a

single Allen charge stands at the crossroads of impermissable

coercion, the protection of a defendant's right to an impartial

jury compels a per se rule.

For the reasons referred to hereinabove, it is respectfully sub-

mitted that a new trial should be ordered.

THE JUDGMENT OF CONVICTION SHOULD BE

REVERSED AND THE INDICTMENT DISMISSED IF

TEH INDICTMENT WAS WHOLLY SUPPORTED

UPON HEARSAY TESTIMONY WITHOUT

JUSTIFICATION THEREFOR.

In United States v. Costello, 350 U.S. 359, 76S. Ct. 406, 100

L. Ed. 397 (1956) the Supreme Court held that an indictment

could be based exclusively on hearsay. Notwithstanding this im-

pramutur, the Court of Appeals for the Second Circuit in

United States v. Umans, 368 F. 2d 725 (2d Cir., 1966) sought to

discourage the practice. While the Court in that case rejected a

claim that a hearsay based indictment should fall it stated:

‘*that excessive use of hearsay in the presentation of

government cases to grand juries tends to destroy the

historical function of grand juries in assessing the

likelihood of prosecutorial success and tends to destroy the

protection from unwarranted prosecutions that grand

juries are supposed to afford the innocent.

Hearsay evidence should only be used when direct

testimony is unavailable or when it is demonstrably in-

convenient to summon witnesses able to testify to facts

from personal knowledge.’”’ Id. at p. 730.

Even before Umans, supra, Judge Friendly had condemned

the practice in a dissent in United States v. Payton, 363 F 2d

996 (2d Cir., 1966). In both Umans and Payton, however, the

criticism was levelied a the misuse of hearsay evidence by

misleading the grand jury into believing it was listening to

witnesses with personal knowledge when in fact it was receiving

second hand evidence.

In United States v. Bel:ram, 388 F. 2d 449 (2d Cir., 1968),

however, there was no allegation that a deception had been

practiced. The claim was merely that the indictment had been

founded upon hearsay testimony. The Court of Appeals refused

to dismiss the indictment and, again, a dissent was registered.

Id. at p. 451.

The majority in Beltram, supra, however noted that this

pracice had been judicially criticized by the Second Circuit, but

also noted that ‘‘[t]he indictment in the present case was return-

ed before the issuance of Umans, supra.’’ Beltram, supra, at p.

451.

In United States v. Catino, 403 F. 2d 491 (2d Cir. 1968) the

claim was made again that an indictment should be dismissed

because hearsay was the sole basis for an indictment, and again

the Court refrained from dismissing the indictment. The Court

however reaffirmed its criticism of the use of unnecessary and

excessive hearsay testimony in the presentation of government

cases to grand juries, but because these indictments were return-

ed less than a week after the decision in Umans, . . . it would be

an unduly harsh exercise of supervisory powers to impose sanc-

tions upon the government for failing to achieve full compliance

in this case.’’ Catino, supra, at p. 497.

In United States vy. Arcuri, 405 F. 2d 691 (2d Cir., 1968)

Judge Friendly stated that ‘‘the reference [to Umans, supra, in

Beltram, supra] . . . suggests [the majority] thought the court’s

dictum there [in Umans] might have announced a standard to

govern the subsequent conduct of Federal prosecutors in this

circuit.’’ Arcuri, supra, at p. 693. The Court again refrained

from dismissing the indictment [i]n light of the precedents. . .

We repeat, however, the warnings to prosecutors given in

Umans and Catino.’’ Id. at 694.

In United States v. Estepa, 471 F. 2d 1132 (2d Cir. 1972) the

practice of misleading grand juries with hearsay testimony led to

the dismissal of the indictment. The Court noted that it had

‘**previously condemned the casual attitude with respect to

the presentation of evidence to a grand jury manifested by

the decision of the Assistant United States Attorney to rely

on the testimony of the law enforcement officer who knew

the least rather than subject the other officers, or himself,

to some minor inconvenience (citations omitted), even if

the motivation was merely this rather than the more

sinister reason suggested in United States v. Borelli,

infra.’’ Estepa, supra, at p. 1135.

In United States v. Ramirez, 482 F. 2d 807 (2d Cir., 1973) the

Court of Appeals limited ‘‘the Estepa rule’’ to cases where

deception was involved but not without listing the number of

times it had warned against the use of unnecessary hearsay

evidence.

In United States v. Burse, 531 F.2d 1151 (2d Cir., 1976) the

Court of appeals rejected a claim that a hearsay based indict-

ment should fall on authority of Estepa, supra. The now

familiar warning was once more set forth:

**However, this contention is also one which cannot be dismiss-

ed lightly. This court has repeatedly indicated that indictments

based on hearsay are disfavored and that it is preferable for

grand juries to be presented with first hand evidence. (Catino,

supra, and Umans, supra).

While there are instances where it is justified to present hearsay

evidence to the grand jury, the record from the court below fails

to disclose any valid reason why the grand jury . . . could not

have been given first-hand testimony. The use of hearsay under

such circumstances inevitably creates questions which, if possi-

ble, are best avoided . . ."’ Burse, supra, p. 1156.

Notwithstanding these warnings, the Government has chosen

to continue the practice of presenting unnecessarily hearsay

evidence before the grand jury. It is anticipated that the

Government will argue that no holding of the Second Circuit re-

quires them to submit first hand evidence where it is available.

To make such an argument, however, is to ignore the fact that

Estepa was the response by the Second Circuit to the Govern-

ment’s wilful disobedience to previously issued warnings about

hearsay in another context.

Until such time as the Constitution is amended to abolish the

Grand Jury system, the purpose for its requirement as shield

between the citizenry and the government should not be cir-

cumvented by prosecutors who use the Grand Juries as puppets

to do their bidding.

The excessive use of hearsay before a grand jury without any

justification therefor, violates the spirit and intent of the Con-

stitution and must be prohibited.

Accordingly, the indictment herein being based solely upon

hearsay testimony without any justification therefor, should be

deemed legally insufficient and the conviction of the defendant

should be reversed.

MISCLASSIFICATION OF COCAINE DENIES THE

DEFENDANT DUE PROCESS OF LAW AND

RESULTS IN CRUEL AND UNUSUAL PUNISHMENT

Defendant Vila has been convicted for violations of 21

U.S.C. §§841(a)(1) and 846 involving an alleged conspiracy to

distribute cocaine and the actual distribution of cocaine. The

conviction should) be revesed on the ground that the

misclassification of cocaine as a narcotic is irrational and denies

equal protection in violation of the Fifth Amendment to the

United States Constitution.

The Comprehensive Drug Abuse Prevention and Control Act

of 1970, 21 U.S.C. §§801-966, classifies certain ‘controlled

substances’’ into five ‘‘schedules."’ These substances are

grouped according to their potential for abuse, their medical

usefulness, and the consequences of their use or abuse. 21

U.S.C. §812(b). Cocaine is a Schedule II substance. 21 U.S.C.

§812(c), Schedule II (a)(4). Placement of a substance on one

schedule or another determines the regulatory scheme ap-

plicable to that substance, see, e.g., 21 U.S.C. §§823-827,

842-43. Criminal sanctions, however, sometimes vary within

schedules and across schedule lines. *841(b)(1) divides Schedule

Il substances into two groups for criminal purposes: those

which are ‘‘narcotic drugs’’, 21 U.S.C. §841(b)(1)(A) and those

which are not, 21 U.S.C. §841(b)(1)(B). The maximum penalty

for violations involving the former is imprisonment for 15 years

and a fine of $25,000; for the latter the maximum penalty is far

less: imprisonment for 5 years and a $15,000 fine. The term

‘narcotic drug’’, as defined in 21 U.S.C. §802(16) includes

opium and the opiates, coca leaves, and their derivatives, com-

pounds and chemicaVanalogs. With the sole exception of co-

caine, all these substances are true narcotics. The only schedule

Il substance which is not a ‘‘narcotic drug’’ within the meaning

of §802(16) is injectable methamphetamine (methedrine or

**speed’’). Methedrine, like cocaine, is a central nervous system

stimulant. Other stimulants besides cocaine and methedrine are

listed in Schedule III, 21 U.S.C. §812(c), Schedule III(a).

Despite the statutory definition, cocaine is not a narcotic; it is

a central nervous system stimulant. The effect of cocaine on the

user’s nervous system is similar to that of the amphetamines,

rather than that of ‘‘true’’ narcotics like heroin. In contrast to

narcotics, cocaine does not cause physical or psychological

dependence even when used often in large doses. Nor does it

precipiate the medical complications often caused by narcotic

use. Cocaine use thus does not affect an individual's normal life

pattern,

Similarly, the serious social disruptions widely attributed to

narcotic use, are not occasioned by cocaine use. Since cocaine is

not addictive, users do not need to commit crimes in order to af-

ford their perpetually increasing need for the drug. Cocaine use

does not lead to the abnormal life patterns which narcotics ad-

dicts fall into; cocaine users can and do hold steady jobs and

make significant contributions to society.

Although several affidavits of medical doctors, drug resear-

chers, professors and a former assistant commissioner for ad-

diction programs for the New York City Health Services Ad-

ministration, all attesting to the fact that cocaine is not a nar-

cotic drug were submitted to the trial court and reviewed again

by the Court of Appeals for the Second Circuit, they were

disregarded on the basis that if Congress wants to classify a

**cow’’ as a type of ‘‘horse’”’ it is within its right to do so. This is

unfair and unconstitutional.

In an ‘‘in depth’’ study of the history behind the

misclassification of cocaine presented to both the District Court

and the Court of Appeals it was shown that the use of cocaine as

a stimulant and antedote for hunger and fatigue by the Andean

Mountain Indians dates back thousands of years, continuing to

the present among approximately 90% of the Indians. R.

Lungeman, Drugs from A to Z: A Dictionary, 43 (1969). This

alone distinguishes cocaine from narcotics which are addictive

sedatives.

In the 19th Century Dr. Sigmund Freud wrote that he took

cocaine in ‘‘. . . small doses regularly against depression and

against indigestion, and with a most brilliant success’’. E.

Jones, The Life and Work of Sigmund Freud, Chap. V1, pp. 1-3

(New York, 1956).

Without reiterating the entire volumous argument presented

to the Courts below, it is necessary to point out that cocaine was

an important ingredient in coca-cola and was sold by the Parke

Davis Company in Coca-leaf cigarettes and cigars as well as ina

liquor like mixture called coca-cordial. See: E.G. Kahn, The Big

Drink: The Story of Coca-Cola (N.Y. 1960); and Masto, The

American Disease.

Perhaps the most significant factor in its incorporation into

the Harrison Act is the racial mythology that was accorded to

cocaine at that time. ‘*. . . the stimulation of negroes, who are

largely addicted to this drug, to a certain class of crime. Most at-

tacks upon white women of the south, are the direct result of a

coke-crazed ... brain’’ Moffat, RX-Cocaine, Hampton

Magazine, May, 1914, p. 604. See also Wright, Report on the

International Opium Commission, 58 Senate Documents 377

(6lst Congress, 2nd Session, 1909-10, pp. 48-51) wherein it was

stated:

. . it [cocaine] has been a potent incentive in driving the

humbler negroes all over the country to abnormal crimes’’.

In an era when the Ku Klux Klan was in its ‘Shey day’? and

Black Americans just emerging from their slave status, the un-

questioned acceptance by Congress of the proposition that co-

caine turned ‘‘humbler negroes’’ into ‘‘sex crazed defilers of

white womenfolk’’ guaranteed that cocaine would be included

into the list of ‘‘Dangerous Drugs’’.

While the passage of the Harrison Act had to wait for the

mythology which was the underlying motivating force in the

heavy criminalization of cocaine was never challenged in a

subsequent legislative hearing. In 1915 an ‘‘Act of Regulate this

Practice of Pharmacy and the Sale of Poison in the Consular

District of the United States in China’’ was passed. That Act

prohibited the sale of cocaine, opium and morphine to

**habitual users’’ of the drugs. An exception written into that

statute permits any doctor to furnish ‘tin good faith for any

habitual user of narcotic drugs who is under his professional

care, such substances as he may deem necessary for their treat-

ment .. .”’ (38 Stat. 817, 820). The wording of the statute in-

dicates how far back the erroneous linking of cocaine and

opium dates.

In 1922, cocaine was defined as a narcotic drug in an amend-

ment to the Narcotic Drugs Export and Import Act, which ban-

ned the importation of cocaine absolutely (42 Stat. 592). There

was no Congressional hearing or finding regarding cocaine.

Nothing has occurred in the intervening years since 1922 to

correct the misclassification of cocaine as a narcotic drug. The

1970 statute which is the basis of the present prosecutions

divides drugs into various categories according to quality. But

the definition of narcotic and the corresponding penalty section

cuts across the various schedules and places a possible 15 year

jail sentence upon all narcotic drug offenses, regardless of

schedule. There were no hearings or scientific evidence

presented to justify this result concerning cocaine. It was simply

assumed from past misinformation that the drug was a narcotic

and presented a physiological and social danger corresponding

to that evil presented by heroin addiction.

B. The Penalty Structure for Distribution of Cocaine

Violates the Defendant's Due Process Rights.

Because the criminal classification of cocaine as a narcotic is

without a sufficient rational basiss* a conviction under the

Statutes incorporating this classification would deprive the

defendant of liberty without due process of law. Both counts of

the indictment charging defendant Vila must therefore be

dismissed. '

When Congress first classified cocaine as a ‘‘narcotic’’ for

criminal purposes, it relied on certain supposed ‘‘facts’’ and at-

titudes commonly believed in that era. This original classifica-

tion has been carried forward to the present law without critical

examination or review, and no presently credible factual

justification can be advanced to support it. The defendants do

not challenge this classification simply because heroin and co-

caine are grouped together for penalty purposes.’

Certainly, Congress may decree that different or even

dissimilar crimes may be punished alike. But the classification

must be rational and not arbitrary. Where the reasonableness of

the classification cannot be supported in fact, as here, the

statute must fall. United States v. Smaldone, 484 F. 2d 311,

3209 (10th Cir. 1973); cf. Police Dept. of Chicago v. Mosley,

408 U.S. 92 (1972).

Cocaine is a stimulant utterly unlike the true narcotics or

opiates. Yet none of these differences was considered by Con-

gress when it defined cocaine as a narcotic under the Harrison

Act, nor were they considered in the enactment of the criminal

statute now in force.

When Congress legislates in reliance on supposed facts which

subsequently are revealed to be incorrect, the law which

necessarily depends on those facts is unconstitutional. In Turner

v. United States, 396 U.S. 398, 418-19 (1970), the Supreme

Court reversed a conviction for possession of cocaine under the

law superseded by the one in question here. ‘Based on our own

1. Conspiracy to commit the offense charged is punishable by the same

penalties prescribed for the substantive offense itself. 21 U.S.C. §846.

2. Thus, this case differs markedly from the many cases attacking the very

criminalization of marijuana based on its inaccurate classification as a “‘nar-

cotic’’. See, e.g., English v. Virginia Probation and Parole Board, 48\ F.2d

188 (4th Cir. 1973); United States v. Kiffer, 477 F. 2d 349 (2d Cir.)., cert.

denied, 414 U.S. 831 (1973); Rener v. Beto; 447 F. 2d 20 (Sth Cir. 1971), cert.

denied, 405 U.S. 1051 (1972). At least two state supreme courts, however,

have invalidated marijuana statutes in part because of its irrational classifica-

tion as a ‘‘narcotic’’.

examination of the facts now before us,’’ the Court said, the

Congressional determination that all cocaine could be presumed

imported, on which the convictions depended, was ‘‘more-

likely-than-not’’ incorrect. /d. at 419.

Even if the necessary, underlying facts are true when the

legislation was passed, but subsequently become untrue, the

convictions must be overturned. In Leary v. United States, 395

U.S. 6 (1969), the Court reversed a conviction for transporta-

tion of illegally imported marijuana. In Leary, Congress had

legislated a presumption of knowledge of importation based on

**facts’’ once valid; but no longer true at the time of trial. The

Court declared:

[W]e have considered more recent information, in order

both to obtain a broader general background and to ascer-

tain whether the intervening years have witnessed signifi-

cant changes which might bear upon the presumption’s

validity. :

[Fn.] A statute based upon a legislative declaration of

facts is subject to constitutional attack on the ground that

the facts no longer exist; in ruling upon such a challenge a

court must, of course, be fiee to reexamine the factual

declarations.

Id. at 38, n. 68. See also, Abie State Bank v. Bryan, 282 U.S.

765, 772 (1921); cf. Brown v Board of Education, 347 U.S. 483,

494-95 (1954). As shown by the legislative history discussed

above, Congressional error in the original and unchanged penal

classification of cocaine was not limited to the realm of science.

Another element was racial myth and fear founded on exag-

gerated or untrue accounts of violent crimes committed against

white women by drug-crazed black men. Although racially

neutral on its face, the law was partly designed for

discriminatory application, condemned by the Fifth Amend-

ment. Cf. Loving v. Virginia, 388 U.S. 1 (1967); Yick Wo v.

Hopkins, 118 U.S. 356 (1886). Even where the law might other-

wise be valid, a demonstrably invidious legislative intent will

militate against the law's validity. See United States Dept. of'

Agriculture v. Moreno, 413 U.S. 528 (1973). Racially-motivated

differences in penalty provisions cannot be tolerated. Cf. Fur-

man v. Georgia, 408 U.S. 238, 242-57 (Douglas, J., concurring,

364-66 (Marshall, J., concurring) (1972).

Although Congress carefully, thoroughly and commendably

reorganized the controlled substances law in 1970, it did not re-

examine or reform the criminal classification of cocaine at that

time or at any other time. No present rationale supports the

classification of the cocaine user with the hard core narcotic ad-

dict. Because the classification of cocaine as a ‘‘narcotic drug”’

is arbitrary, and discriminates against the defendant invidiously

and without a rationale basis in fact, the defendant’s indictment

based upon the mis-classification should have been dismissed

and his conviction thereon reversed.

The misclassification of cocaine violates due process in yet

another fashion: by penalizing offenses involving cocaine a

stimulant, more harshly than correlative offenses involving

other stimulants, the present statutory scheme violates the

guarantee of equal protection of the laws.

This guarantee is an essential element of Fifth Amendment

due process of law. Schneider v. Rusk, 377 U.S. 163, 168 (1964);

Bolling v. Sharpe, 347 U.S. 497 (1954). Equal protection of the

law requires that no different punishment may be imposed of

one offender than is statutorily available for imposition on all

similarly situated. See, e.g., Skinner v. Oklahoma, 315 U.S.

535, (1942); Hodgson v. Vermont, 168 U.S. 262, 273 (1897);

Barbier v. Connolly, 113 U.S. 27, 31 (1885). In the leading case

of Skinner v. Oklahoma, supra, the Court invalidated a statute

requiring the penalty of sterilization for some convicts but not

for others similarly situated, relying heavily on its analysis on

the threat to the fundamental right to procreate. In the instant

case, a fundamental right is also threatened: liberty from

physical penal coercion for a possible ten years in excess of the

punishment term faced by members of the favored class, am-

phetamine users.

The Supreme Court has recognized that this right is not mere-

ly ‘*fundamental,”’ it is primary: ‘Although the Court has not

assumed to define liberty, that term is not confined to mere

freedom from bodily restraint.’’ Bolling v. Sharpe, 347 U.S.

497, 499 (1954). Furthermore, where rights involved in the

criminal process is involved, classifications not otherwise

““suspect’’ are nevertheless treated as such. See., e.g., Griffin v.

Illinois, 351 U.S. 12 (1956) (criminal process; poverty); Jn re

Gault, 387 U.S. 1 (1967) (criminal process; age). For these

reasons, this discriminatory classification of cocaine and its

distributors compared to other controlled stimulants and their

distributors must be carefully scrutinized: ‘‘There are limits to

the extent to which the presumption of constitutionality can be

pressed, especially where the liberty of the person is

concerned.’’ Skinner v. Okla., supra, at 544 (Stone, C.F., con-

curring).

The discrimination cannot survive such scrutiny. There is no

compelling justification for treating alleged cocaine distributors

differently from alleged amphetamine distributors. Cocaine is,

if anything, less dangerous to the user and to his or her com-

munity. Its use is necessarily less widespread, because it is

legitimately manufactured in far lesser quantities and so is not

often diverted to illicit use from legitimate channels, as are the

amphetamines. It is no more psychologically addictive than

methedrine and has no greater a potential for abuse. The deter-

rent effect, if any, of an additional ten year penalty cannot be

justified.

Even under the less stringent test of ‘minimum rationality’’

followed in challenges to the constitutionality of commercial

regulations, the discrimination against cocaine users cannot be

upheld. By placing cocaine in Schedule II rather than in

Schedule I, Congress has recognized its analogy with

methedrine (and difference from heroin) in important respects.

By penalizing methedrine offenses together with those involving

Schedule III substances, Congress recognized that control of all

the stimulants involves essentially similar factors. The differen-

tial penalty scheme that selectively removes cocaine from the

punishment otherwise applicable, 21 U.S.C. §841(b)(1)(B), is

arbitrary and irrational. It punishes like offenders differently

without justification. To apply the classification would deprive

the defendant of his liberty without due process of law.

The second alternative relief urged by defendant in this case is

particularly appropriate to remedy this constitutional violation.

If the Court were to require the instant offenses to be

punishable under 21 U.S.C. §841(b)(1)(B) with the other

stimulants in Schedule II, rather than under §841(b)(1)(A),

defendant would have been in precisely the same position vis a

vis his potential penalty, as an individual charged with distribu-

tion and conspiracy to distribute any other stimulant.

Finally, imposition of a penalty of fifteen years imprisonment

for the offenses charged constitutes cruel and unusual punish-

ment in violation of the Eighth Amendment. The Eighth

Amendment limits both the amount and the nature of permissi-

ble punishment, invalidating a punishment which ‘‘is excessive

and serves no valid legislative purpose.’’ Furman v. Georgia,

408 U.S. 238, 331 (1973).

A punishment may be cruel in its disproportionality in com-

parison to punishments inflicted for similar crimes. Weems Vv.

United States, 217 U.S. 349 (1910). In the case at bar, classifica-

tion of cocaine as a narcotic has exposed defendant to a punish-

ment of awesome disproportionality. On the basis of a

legislative mistake of fact, defendant’s penalty for each offense

is now 15 years, as opposed to the five years he would have fac-

ed had cocaine been properly classified as a stimulant.

To spend fifteen (15) years in prison for a crime which has

been erroneously defined, is cruel and unusual treatment and

should be corrected by this Honorable Court.

CONCLUSION

The questions presented by this case are a great and recurring

significance in the administration of justice as it applies to

defendants in criminal cases, genuinely and specifically to those

who have been charged with violations of drug laws involving

cocaine. The serious questions of criminal justice and public

policy involved herein and the effect of the decision below, if

not reversed, upon the historic responsibility of the courts to

provide fair and equal justice under the law, make this case a

particularly appropriate one for the exercise of this Court’s

discretionary jurisdiction.

For the reasons set forth above, it is respectfully submitted

that this Petition for a Writ of Certiorari should be granted.

Respectfully submitted,

MARTIN J. SIEGEL

Attorney for Petitioner

APPENDIX ‘‘A”’

INDICTMENT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

UNITED STATES OF AMERICA,

VS,

JAIME VILA, a/k/a ‘‘Jimmy,’’ a/k/a ‘‘Teenager,”’

HENRY GOMEZ LONDONO, RAMONITA CASADO,

a/k/a ‘‘Cookie,’” NARCISCO GUZMAN, a/k/a ‘‘Nelson,”’

LOUIS HERNANDEZ, a/k/a ‘‘Albertito,”’

NILDA MEDINA, a/k/a ‘‘Nellie,’"” PATRICIARODRIGUEZ,

JOHN DOE, a/k/a ‘‘Samson,’’ and JOHN DOE, a/k/a

‘*Tomas Vila,”’

Defendants.

COUNT ONE

The Grand Jury charges:

1. From on or about the Ist day of March, 1977 and con-

tinuously thereafter up to and including the date of the filing of

this indictment, in the Southern District of New York, JAIME

VILA, a/k/a ‘‘Jimmy,”’ a/k/a ‘* Teenager,’ HENRY GOMEZ

LONDONO, RAMONITA CASADO, a/k/a ‘‘Cookie,’’ NAR-

CISCO GUZMAN, a/k/a ‘‘Nelson,’” LUIS HERNANDEZ,

a/k/a ‘‘Albertito,””’ NILDA MEDINA, a/k/a ‘‘Nellie,’’

PATRICIA RODRIGUEZ, JOHN DOE, a/k/a ‘‘Samson,”’

and JOHN DOE, a/k/a ‘‘Tomas Vila,’’ the defendants and

others to the Grand Jury known and unknown, unlawfully, in-

tentionally and knowingly combined, conspired, confederated

and agreed together and with each other to violate Sections 812,

841(a)(1) and 841(b)(1)(A) of Title 21, United States Code.

2. It was part of said conspiracy that the said distribute and

possess with intent to distribute Schedule I and II narcotic drug

controlled substances the exact amount thereof beifig.to the

Grand Jury unknown in violation of Sections 812, 841(a)(1) and

841(b)(1)(A) of Title 21, United States Code.

OVERT ACTS

In pursuance of the said conspiracy and to effect the objects

thereof, the following overt acts were committed in the

Southern District of New York and elsewhere:

1. On August 3, 1977, in Ponce, Puerto Rico, JAIME VILA,

a/k/a ‘‘Jimmy,’’ a/k/a ‘‘Teenager,’’ met with a confidential

informant of the Drug Enforcement Administration who was

acting in an undercover capacity (hereinafter referred to as ‘‘the

confidential informant’’) in order to discuss a sale of narcotics.

2. On August 4, 1977, in Ponce, Puerto Rico, JAIME VILA,

a/k/a ‘‘Jimmy,’’ a/k/a ‘‘Teenager,’’ again met with the con-

fidential informant in order to discuss a sale of narcotics.

3. On August 6, 1977, in Ponce, Puerto Rico, the confidential

informant was given the New York City telephone number of

JAIME VILA, a/k/a ‘‘Jimmy,’’ a/k/a ‘‘Teenager,’’ by

PATRICIA RODRIGUEZ, who advised the confidential infor-

mant not to mention drugs on the telephone and to talk in code.

4. During a telephone conversation on August 9, 1977, in the

Bronx, New York, JAIME VILA, a/k/a ‘‘Jimmy,’’ a/k/a

‘**Teenager,’’ arranged to meet the confidential informant at a

Holiday Inn on West 57th Street, New York, New York

(hereinafter referred to as ‘‘Holiday Inn’’).

5. On August 9, 1977, NILDA MEDINA, a/k/a ‘‘Nellie,”’

drove to the vicinity of 3155 Rochambeau Avenue, Bronx, New

York and picked up JAIME VILA, a/k/a ‘‘Jimmy,’’ a/k/a

‘**Teenager.’”’

6. On August 9, 1977, JAIME VILA, a/k/a “‘Jimmy,”’ a/k/a

‘*Teenager,’’ and NILDA MEDINA, a/k/a ‘‘Nellie,’’ drove to

the Holiday Inn in order to meet with the confidential infor-

mant, a special agent of the Drug Enforcement Administration

and a police officer of the Puerto Rico Police Department

(hereinafter collectively referred to as ‘‘the undercover

agents’’), who were posing as prospective purchasers of nar-

cotics.

7. On August 9, 1977 in a room at the Holiday Inn, JAIME

VILA, a/k/a “‘Jimmy,”’ a/k/a ‘‘Teenager,”’ in the presence of

NILDA MEDINA, a/k/a ‘‘Nellie,’’ negotiated with the under-

cover agents for the sale of one kilogram of cocaine for $30,000.

8. On August 10, 1977, at a Mobil Service Station in Queens,

New York, while in the presence of NARCISCO GUZMAN,

a/k/a ‘‘Nelson,’” HENRY GOMEZ LONDONO and JAIME

VILA, a/k/a ‘‘Jimmy,’’ a/k/a ‘‘Teenager,’’ had a conversa-

tion.

9. On August 10, 1977, at a Mobil Service Station in Queens,

New York, while in the presence of HENRY GOMEZ LON-

DONO and NARCISCO GUZMAN, a/k/a ‘‘Nelson,’’ JAIME

VILA, a/k/a ‘‘Jimmy,”’ a/k/a ‘*Teenager,’’ placed a telephone

call to the undercover agents at the Holiday Inn in order to ad-

vise the undercover agents that he (VILA) would deliver an ad-

ditional kilogram of cocaine to them on consignment.

10. On August 10, 1977, JAIME VILA, a/k/a ‘‘Jimmy,”’

a/k/a ‘‘Teenager,’”” and NARCISCO GUZMAN, a/k/a

‘*Nelson,’’ drove to the Holiday Inn.

11. On August 10, 1977, JOHN DOE, a/k/a ‘‘Samson,”’

joined JAIME VILA, a/k/a “‘Jimmy,”’ a/k/a ‘‘Teenager,”’ and

the undercover agents in a room at the Holiday Inn.

12. On August 10, 1977, in a room at the Holiday Inn, while

in the picsence of JAIME VILA, a/k/a ‘‘Jimmy,’’ a/k/a

‘*Teenager,’’ JOHN DOE, a/k/a ‘‘Samson,”’ delivered approx-

imately one and one-half kilograms of cocaine to the under-

cover agents.

13. On August 10, 1977, in a room at the Holiday Inn,

JAIME VILA, a/k/a ‘‘Jimmy,’’ a/k/a ‘*Teenager,’’ received

$30,000 from the undercover agents as the purchase price for

one kilogram of cocaine.

14. On August 11, 1977, in the Bronx, New York, LUIS

HERNANDEZ, a/k/a ‘‘Albertito,’’ in a telephone conversa-

tion with one of the undercover agents, discussed the quantity

of cocaine which had been delivered on consignment to the

undercover agents by JAIME VILA, a/k/a ‘‘Jimmy,’’ a/k/a

‘*Teenager,’’ and JOHN DOE, a/k/a ‘‘Samson.”’

15. On August 17, 1977, on Ponce, Puerto Rico, PATRICIA

RODRIGUEZ and JOHN DOE, a/k/a ‘‘Tomas Vila,’’ received

$5,000 from the undercover agents as partial payment for one-

half kilogram of cocaine.

16. On August 18, 1977, in Ponce, Puerto Rico, PATRICIA

RODRIGUEZ and JOHN DOE, a/k/a ‘‘Tomas Vila,’’ received

$5,000 from the undercover agents as partial payment for one-

half kilogram of cocaine.

17. On August 29, 1977, PATRICIA RODRIGUEZ received

$4,000 from the undercover agents as partial payment for one-

half kilogram of cocaine.

(Title 21, United States Code, Section 846).

COUNT TWO

The Grand Jury further charges:

On or about the 10th day of August, 1977 in the Southern

District of New York, JAIME VILA, a/k/a ‘‘Jimmy,’’ a/k/a

‘*Teenager,’”> HENRY GOMEZ LONDONO, RAMONITA

CASADO, a/k/a ‘‘Cookie,’” NARCISCO GUZMAN, a/k/a

**Nelson,’’ LUIS HERNANDEZ, a/k/a ‘‘Albertito,’” NILDA

MEDINA, a/k/a ‘“‘Nellie,’””» PATRICIA RODRIGUEZ, JOHN

DOE, a/k/a ‘‘Samson,’’ and JOHN DOE, a/k/a ‘‘Tomas

Vila,’’ the defendants, unlawfully, intentionally and knowingly

did distribute and possess with intent to distribute a Schedule II

narcotic drug controlled substance, to wit, approximately one

and one-half kilograms of cocaine.

(Title 21, United States Code, Sections 812, 841(a)(1) and

841(b)(1)(A) and Title 18, United Sttes Code, Section 2).

Foreman ROBERT B. LISKE, JR.

United States Attorney

APPENDIX ‘‘B”’

U.S. COURT OF APPEALS OPINION

AFFIRMING CONVICTION

UNITED STATES COURT OF APPEALS

FoR THE SECOND CIRCUIT

“ili

Nos. 843, 844, 847—August Term, 1978.

(Argued April 4, 1979 Decided May 1, 1979.)

Docket Nos. 79-1007, 1008, 1009

UNITED STATES OF AMERICA,

Appellee,

—against—

JAIME VILA, NarcISCO GUZMAN, and LUIS HERNANDEZ,

Defendants-Appellants.

Before:

MULLIGAN, TIMBERS and VAN GRAAFEILAND,

Circuit Judges.

Appeal from judgments of conviction entered in the

United States District Court for the Southern District of

New York, Pierre N. Leval, Judge, after a jury trial, for

violations of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846 and

18 U.S.C. § 2.

Affirmed.

JAMES A. Moss, Assistant United States Attor-

ney (Robert B. Fiske, Jr., United States

Attorney for the Southern District of

New York, Howard W. Goldstein, Assis-

tant United States Attorney, of Counsel),

for Appellee.

HARVEY J. MICHELMAN, Esq., New York, N.Y.

(Michelman & Michelman, New York,

N.Y., Jon M. Probstein, of Counsel), for

Defendant-Appellant Vila.

Davip S. Zapp, Esq., New York, N.Y. (Jon M.

Probstein, of Counsel), for Defendant-Ap-

pellant Hernandez.

PHiLip R. EDELBAUM, Esq., New York, N.Y., for

Defendant-Appellant Guzman.

-——>—

MULLIGAN, Circuit Judge:

Jaime Vila, Narcisco Guzman and Luis Hernandez were

convicted by a jury after a trial before the Hon. Pierre N.

Leval, United States District Judge, Southern District of

New York, of conspiracy to distribute, and to possess with

intent to distribute, heroin and cocaine, in violation of 21

U.S.C. § 846, and of distributing approximately one and

one-half kilograms of cocaine in violation of 21 U.S.C.

§§ 841(a)(1), 841(b)(1)(A) and 18 U.S.C. §2. Vila, Guz-

man and Hernandez were sentenced to and are presently

serving concurrent prison terms of fifteen, nine and two

and one-half years, respectively, to be followed by special

parole terms of twenty, five and five years, respectively.

Vila was also fined $20,000 on each count.

The evidence at trial established that Jaime Vila organ-

ized and supervised a widespread narcotics enterprise

whose members possessed and distributed substantial

quantities of. heroin and cocain in New York City and in

California from late 1975 through late 1977. The Govern-

ment’s case focused on the involvement of Vila and eight

members of his organization in the distribution of one

and one-half kilograms of cocaine on August 10, 1977.

The proof established a narcotics network with activities

controlled by Vila in New York, California and Puerto

Rico. Vila and his associates smuggled large quantities of

heroin from Tijuana, Mexico into Los Angeles, California,

where it was processed and then flown to New York City

for distribution. Members of Vila’s organization also sold

wholesale quantities of cocaine, according to the instruc-

tions of Vila, in New York City and Los Angeles. Pay-

ments for the narcotics sales were made to Vila’s associ-

ates both in New York and in Puerto Rico. Part of the

proceeds were used to purchase real estate in Puerto Rico

and Florida and to invest in businesses in Puerto Rico

and the Bronx.

Appellants present numerous issues for review, most of

which are frivolous and may be disposed of summarily.

Appellants Vila and Hernandez contend that the destruc-

tion of rough notes taken by New York City Police Detec-

tive Raymond Vallely during debriefing sessions of one of

the Government witnesses, Sonny Perlman, constituted a

willful suppression by the Government of evidence favor-

able to appellant within the meaning of Brady v. Mary-

land, 373 U.S. 83 (1963). We disagree. Appellants never

made this claim in the district court and cannot raise it

here. See United States v. Braunig, 553 F.2d 777, 780-81

(2d Cir.), cert. denied, 431 U.S. 959 (1977). In addition,

as appellants acknowledge, before they may be viewed as

Brady material, the rough notes taken by Detective Val-

lely must be capable of substantially impeaching the cred-

ibility of Perlman. See Giles v. Maryland, 386 U.S. 66

(1967); cf. United States v. Miller, 411 F2d 825 (2d Cir.

1969) (Jencks Act). The uncontradicted testimony of

Detective Vallely established that the notes were virtually

consistent with Perlman’s final debriefing statement! and

_ with his trial testimony. The mere fact that Perlman’s re-

collection of dates and meetings improved from one de-

briefing session “to the next could not have been used to

substantially impeach his credibility.

Appellant Vila argues that his Sixth Amendment right

to a speedy trial was abridged becaue he was not brought

to trial within such period of time as was “reasonable

under the circumstances.”* Vila was brought to trial in

the Southern District of New York on March 20, 1978,

126 days after his arrest in Los Angeles. The relevant

provisions of the Speedy Trial Act were not violated since

Vila’s trial took place within 120 days of his arraignment.

18 U.S.C. § 3161(b), (c), (f) and (g). With respect to appel-

1 Two preliminary debriefing statements were prepared. The

first was prepared by Detective Vallely based on his memory

and rough notes taken during the debriefing sessions with Perl-

man. The second and third drafts were based on the first and

contained the editorial comments of Detective Vallely’s super-

visor and the Assistant United States Attorney in charge of the

case. The third and final draft was the only one read and signed

by Perlman.

2 Appellants’ Joint Brief at 14.

10a

lant’s Sixth Amendment right, the Supreme Court has

held that “{ljength of delay, the reason for the delay, the

defendant’s assertion of his right, and prejudice to the de-

fendant” are factors to be considered in speedy trial

cases. In the instant case, the delay was shorter than in

other cases where no Sixth Amendment violation was

found. Barker v. Wingo, 407 U.S. 514, 533 (1972) (“well

over five years”); United States v. Lane, 561 F.2d 1075,

1078 (2d Cir. 1977) (“approximately 58 months”); United

States v. Saglimbene, 471 F.2d 16, 17 (2d Cir. 1972), cert.

denied, 411 U.S. 966 (1973) (six years). According to the

record, the original trial date was adjourned at the re

quest of Vila’s attorney in order to permit the defense

more time to prepare for trial and in omer to hold sup-

pression hearings. Finally, Vila has been able to show no

prejudice as a result of the delay. Thus, we conclude that

Vila’s Sixth Amendment right to a speedy trial has not

been violated.

Appellant Vila also contends that the delay in remov-

ing him from California to New York after his arrest vio-

lated the Speedy Trial Act, 18 U.S.C. §§ 3161(c), (f). The

facts of this contention are fully set forth and properly

disposed of in the district court’s memorandum opinion

below (77 Crim. 767 (S.D.N.Y. March 6, 1978)). Vila’s ar-

raignment took place well within the statutory period and

he was not deprived of the right to the effective assis-

tance of counsel by the delay in his removal from Califor-

nia. The record establishes that Vila was represented by

counsel during the period pending his removal from Cali-

fornia and was granted additional time to consult an

attorney and prepare for trial once he arrived in New

York.

We also find that the Sixth Amendment right of appel-

lants Vila and Hernandez to confront the witnesses against

lla

them was not abridged by the failure of the Government

to produce informer Jorge Rubio as a witness. Both Vila

and Hernandez opposed the Government’s motion for per-

mission to reopen its rebuttal case in order to call Rubio.

In addition, neither appellant called Rubio as a witness

when he was available.

With respect to appellant Guzman’s claims, the Govern-

ment’s evidence was strong enough to establish both his

knowledge of and participation in the crimes charged in

the indictment. Further, Guzman’s argument that the

proof at trial established two distinct conspiracies, one

Operating between New York City and California and the

other operating between Puerto Rico and New York City

is unpersuasive. As this court noted in United States v.

Armedo-Sarmiento, 545 F.2d 785, 790 (1976), cert. denied,

430 U.S. 917 (1977), “a single conspiracy is not trans-

posed into a multiple one simply by lapse of time, change

in membership, or a shifting emphasis in its locale of

operations.” (citations omitted). The evidence viewed in

the light most favorable to the Government established a

single narcotics distribution organization with a common

source of supply, a central leadership, and a consistent

pattern of operation.

We also reject Guzran’s claim that the trial court im-

properly refused to instruct the jury, in accordance with

our decision in United States v. Garguilo, 310 F.2d 249,

254 (1962), that no defendant may be convicted of a

crime unless the jury is convinced beyond a reasonable

doubt that the defendant “was doing something to for-

ward the crime—that he was a participant rather than

merely a knowing spectator.” A review of the record

12a

establishes that the trial judge twice instructed the jury

that the mere presence and guilty knowledge on the part

of a defendant would not suffice to convict unless the de-

fendant somehow promoted the venture.

Appellants Vila and Hernandez challenge here the dis-

trict court’s charge to the jury regarding juror bias on the

grounds that it constituted a second modified Allen

charge. According to the record, after returning partial

verdicts acquitting four of the eight defendants, the jury

reported an impasse to the trial court in a note which

also suggested that not every juror was deliberating in

accordance with the jurors’ oaths. The trial court, after

consulting with counsel for the Government and all re-

maining defendants, called the jury back into the court-

room, reminded them of the questions they were asked

during voir dire in order to eliminate juror bias, and ad-

monished them not to allow considerations of bias or prej-

udice to prevent them from reaching a verdict. A modi-

fied Allen charge had been delivered to the jury previ-

ously when they informed the court of a deadlock.

Appellants’ challenge to the trial judge’s remarks is

meritless. The attorneys for both Vila and Hernandez

expressly consented to the charge on juror bias before it

was made and failed to object when it was delivered to

the jury. In addition, the remarks at issue may not be

interpreted as a second modified Allen charge since they

merely constitute a reminder to the jury to avoid possible

bias and prejudice in executing their sworn responsibili-

ties.

Appellant Guzman contends that the district court

erred in admitting a tape recording of, and testimony

concerning, conversations in which defendant Hernandez

discussed with an undercover agent the murder of a co-

conspirator and associate of Vila, presumably by someone

13a

outside the Vila organization. The declarations of Hernan-

dez were properly admitted as statements of a coconspira-

tor under Fed. R. Evid. 801(d)(2)(E). The trial judge did

not abuse his broad discretion under Fed. R. Evid. 403

finding that the probative value of the evidence out-

weighed the prejudicial impact, see United States v.

Robinson, 560 F.2d 507 (2d Cir. 1977) (en banc), cert.

denied, 435 U.S. 905 (1978), especially since the conversa-

tions do not indicate that a crime had been committed by

a coconspirator of Guzman, but rather by someone not

associated with the Vila crganization.

Appellants Vila and Hernandez contend that the use of

hearsay in the grand jury was grounds for dismissal of

the indictment. We disagree. The trial judge examined

the minutes of the grand jury proceeding in camera and

properly applied the test enunciated by this court in

United States v. Estepa, 471 F.2d 1132, 1137 (1972) and

United States v. Marchand, 564 F.2d 983, 1001 n.29

(1977), cert. denied, 434 U.S. 1015 (1978). Appellants

have failed to show any deception of the grand jury. The

record supports the trial court’s conclusions that the

grand jury was specifically told that it was hearing hear-

say testimony and that even if it heard the testimony of

first hand witnesses, there was no probability that a dif-

ferent result would have been reached.

Finally, appellants assert that Congress’ classification of

cocaine as a Schedule II narcotic drug under 21 U.S.C.

- §802(16) is without rational basis and is therefore a vio-

lation of their Fifth Amendment due process and equal

protection guarantees. Numerous courts have already con-

sidered this issue and heve all rejected appellants’ posi-

l4a

tion. We agree that Congress had a rational legislative

purpose under the standard set forth in United States v.

Carolene Products Co., 304 U.S. 144, 153-54 (1938), when

it classified cocaine as a Schedule II narcotic drug for the

purpose of imposing penalties. United States v. Marshall,

532 F.2d 1279, 1287-88 (9th Cir. 1976); United States v.

Harper, 530 F.2d 828 (9th Cir.), cert. denied, 429 USS.

820 (1976); United States v. Smaldone, 484 F.2d 311,

319-20 (10th Cir. 1973), cert. denied, 415 U.S. 915 (1974).

In sum, we agree with United States v. Brookins, 383 F.

Supp. 1212 (D.N.J. 1974), aff'd, 524 F.2d 1404 (3d Cir.

1975), where the court stated:

Whether Congress retained the “narcotics” classifi-

cation because of the paucity of scientific data con-

cerning the use and effect of cocaine, or because it is

used by drug abusers either alone or in combination

with heroin, or in furtherance of treaty obligations,

see 21 U.S.C. Sec. 801(7), there are any number of

rational bases which, if now known, can be assumed

under the Carolene test in upholding the congres-

sional classification of cocaine as a narcotic for pen-

alty purposes.

383 F. Supp. at 1216.

Appellants Vila and Hernandez also contend that classi-

fication of cocaine as a narcotic has exposed them to a

maximum sentence of fifteen years under 21 U.S.C.

§ 841(b)(1)(A) constituting cruel and unusual punishment

forbidden by the Eighth Amendment. We hold that the

maximum punishment established by Congress is not so

“disproportionate to the gravity of the crime committed,”

Carmona v. Ward, 576 F.2d 405, 408 (2d Cir. 1978), cert.

15a

deniea, 99 S.Ct. 874 (1979) that it violates the Eighth

Amendment. All other issues raised by appellants are

even less meritorious and deserve no comment.

The convictions are affirmed.

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.