Respondents Brief — Chapman v. United States

Supreme Court brief1991

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BRIEF ON THE MERITS OF RESPONDENT,

STANLEY MARSHALL,

e Support of Petitioners, Urging Reversal

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DONALD THOMAS B ERG ERSON

wi So a Street

San Francisco, CA., 94115

, Telephones (415) 621-8149

Attorney for Respondent

STANLEY MARSHALL

AVAILABLE COPY

en one

QUESTIONS PRESENTED

1. Does the phrase “mixture or

substance includirg ... L.S.D.," the weight

of which is the basis for sentence under 21l

U.S.C. 841(b) (1) (A) (v), include the weight

of carrier media upon which the L.S.D. is

placed prior to sale?

2. Does basing a sentence on the

fortuitous weight of the carrier on which

L.S.D. is placed prior to sale violate the

right to Due Process of Law?

3. Is there a fundamental right to

"fairness" in criminal sentencing, impair-

ment of which must be strictly scrutinized?

Additionally, Marshall propounds the

following question in section IV of this

brief:

4. Is a sentence based primarily on the

adventitious weight of an inert substance

on which an illegal drug is placed prior to

sale disproportionate and thus prohibited

by the Eighth Amendment?

STATEMENT OF PARTIES

Marshall was a party to the proceeding

whose judgment is reviewed herein, hence is

a respondent in this case under Rule 12.4.

However, because his interest is

allied with that of petitioners, he submits

a brief supporting their position.

The Court is advised that prior to the

granting of certiorari in the instant case,

Marshall submitted his own petition for

certiorari which raises issues similar to

those in the instant case. All parties to

the instant case were served with copies of

°/

that petition, which remains pending.

o . ~ -° . .

following reason: Marshall was prosecuted

in a proceeding unrelated to that involving

petitioners. Because their separate appeals

raised identical issues, their cases were

con-solidated, on appeal, for decision en

banc. After the Court of Appeals rendered

its decision, Chapman immediately

petitioned for certiorari. Marshall sought

rehearing in the Court of Appeals before

filng his own petition.

Should the Court be of the opinion

that Marshall is pot a party here despite

the foregoing, he respectfully requests

that he be given opportunity to file the

within brief as an amicus brief.

TABLE OF CONTENTS

Questions Presented

Parties

Table of Authorities

Opinions Below

Jurisdiction

Constitutional and Statutory

Provisions

Statement of the Case

Summary of Argument

Argument

I) CONGRESS NEVER PASSED A LAW

ALLOWING INERT "CARRIERS"

TO BE WEIGHED WHEN CALCULATING

SENTENCES IN L.S.D. CASES

Introduction: Sentence in

L.S.D. Cases Based on Carrier

Weight Yields Freakish

Results 21

(A) Construed Under the

Rule of Lenity, The Law

Does Not Provide For

Carrier-Weight-Based

Sentencing 28

(B) The Language of the

Statute is Ambiguous 29

1ii

II) CARRIER WEIGHT BASED

SENTENCING VIOLATES THE

DUE PROCESS CLAUSE OF THE

FIFTH AMENDMENT BY

(1) The Phrase "Sub- DEPRIVING CRIMINAL

stance Containing ... Sr ennes OF SQUM

‘ PROTECTION OF THE LAWS

L.S.D. as Been SO

Variously Interpreted FOR IRRATIONAL REASONS

By Different Courts

and Professionals

t .

poy = os rp (A) Carrier-Weight-Based

: ; - Sentencing Irrationally

and "Unambiguous 30 Distinguishes Amongst

Identical Defendants

Who Commit Identical

Crimes

Introduction

(2) The Phrase "Mixture

Containing" Is Also

Ambiguous 35

(B) These Sentencing

Does Not Support A Carrier-

Weight-Based Sentencing ae Related To

Scheme 45 e Purpose of the

Anti-Drug Statutes

(1) Congress Did Not Intend 16) mx teleees Witte

crease In

A Drastic Increase I Has Been, Or Can Be,

i t t

ne ames ar Bn ree os Advanced For Carrier-

Weight-Based

(2) The "Mixture or Substance" Sentencing

Language Was Targeted at

j t <a oBe

Cocaine Dealing, But L.S neeueen, te Gaeeter~

t b

ee Resemble 54 Weight-Based Sentencing

Scheme Violates the

(D) Congress Did Not Wish to Equal Protection

Undermine the Determinate Component of the

Sentencing Act By Weighing Due Process Clause

Carrier Media in L.S.D.

Cases 59 III) THE CARRIER-WEIGHT~-BAS ED

, SCHEME VIOLATES THE DUE

Interim Conclusion 65 PROCESS CLAUSE FOR PROCEDURAL

REASONS, AS WELL

(D) For the Foregoing

IV) CARRIER-WEIGHT- BAS ED

SENTENCING DEPRIVES DEFENDANTS

OF A FUNDAMENTAL RIGHT, AND

SUCH DEPRIVATION MUST BE

ASSESSED UNDER STRICT re

CONSTITUTIONAL SCRUTINY

BASING SENTENCE LENGTH MOSTLY

ON CONDUCT UNRELATED TO

ACTUAL CULPABILITY

VIOLATES THE PROHIBITION

AGAINST CRUEL AND UNUSUAL

PUNISHMENTS

(A) This Court Should

Consider this Contention

Even Though Chapman Did

Not Pose It 89

(B) Basing Sentence On

Conduct Not Proportionate

To The Gravity of An Offense

Violates the Prohibition

Against Cruel and Unusual

Punishments 91

CONCLUSION

INDEX OF AUTHORITIES

CASES

Bolling v. Sharpe,

347 U.S. 497 (1954)

Buck v. Bell,

274 U.S. 200 (1927)

Cabell v. Markhan,

148 F.2d 737 (2 Cir., 1945)

Dandridge v. Williams,

397 U.S. 471 (1970)

Dowling v. United States,

473 U.S. 207 (1985)

Eisenstadt v. Baird,

405 U.S. 488 (1972)

Frazier v. Manson,

703 F.2d 30 (2 Cir., 1983)

Gardner v. Florida,

430 U.S. 349 (1977)

Hutto v. Davis 414,

U.S. 370 (1982)

Marshall v. United States,

414 U.S. 417 (1974)

McGinnis v. Royster,

414 U.S. 263 (1972)

Peters v. Kiff,

407 U.S. 493 (1972)

Reiter v. Sonotone Corporation,

442 U.S. 330 (1979)

vil

16,

67,

19,

Robinson v

370 U

Rostker v.

453 U

Shapiro v.

394 U

Sheridan v

487 U

‘Simpson v.

435 U

Skinner v.

316 U

. California,

-S. 660 (1962)

Goldberg,

-S. 57 (1981)

Thompson,

-S. 618 (1969)

. United States,

-S. 392 (1988)

United States,

-S. 6 (1978)

Oklahoma,

-S. 535 (1941)

Solem v. Heln,

463 U.S. 277 (1983)

Thomas v. United States,

239 F.2d 7 (10 Cir.,

Truax v. Corrigan,

257 U.S. 12 (1921)

United States v. Bass,

404 U.S. 336 (1971)

1956)

United States v. Batchelder,

442 U.S. 114 (1979)

United States v. Bishop,

704 F. Supp. 10

(N.D. Iowa, 1989)

United States v. Bayerle,

898 F.2d\28 (4 Cir.,

viii

1990)

79,

20,

12,

20,

United States

894 F.2d

United States

817 F.2d

United States

Land,

25 Fed.

(D.Cal.,

United States

883 F.2d

United States

898 F.2d

v. Bishop,

981 (8 Cir. 1990)

v. Busher,

1409 (9 Cir. 1987)

v. Certain Piece of

Cses. 366

1870)

v. Daly,

313 (4 Cir. 1989)

v. Elrod,

60 (6 Cir., 1990)

United States v.

729 F.Supp.

(D.C. DeCe,

Healey,

140

1990)

United States

7 Cranch

United States

904 F.2d

United States

v. Hudson,

32 (1812)

v. Larsen,

562 (10 Cir., 1990)

v. Marshall,

706 F. Supp. 650

(C.D. I11.,1989)

13, 22,

29, 30,

63, 69

20, 95

22, 29

30, 44

35, 39

1, 6, ll,

42, 62,

75, 82

United States

908 F.2d

United States

824 F.2d

United States

845 F.2d

United States

840 F.2d

United States

861 F.2d

United States

404 U.S.

United States

v. Marshall,

1312 (7 Cir., 1990) 1,

v. McGeehan,

677 (8 Cir., 1987)

v. Savinovich,

834 (9 Cir., 1988)

v. Smith,

886 (ll Cir., 1988)

v. Tax Lot 1500,

232 (9 Cir., 1989)

v. Tucker,

443 (1972)

Railroad Retirement

Board v.Fritz,

449 U.S.

166 (1981)

Watt v. Alaska,

451 U.S.

259 (1981)

Weems v. United States,

217 U.S.

349 (1909)

Williams v. Illinois,

399 U.S.

235 (1970)

Williams v. New York,

337 U.S.

241 (1947)

9, 27,

32, 36,

52, 64,

68, 69,

74, 77,

78, 90,

97, 98

22, 24,

26, 62,

75, 84

67, 86

Williams v. United States,

458 U.S. 279 (1982) 65

STATUTES AND LEGISLATIVE

AUTHORITY

18 U.S.C. 2 3

18 U.S.C. 1963(a) 94

18 U.S.C. 3553(a)(6) 59

21 U.S.C. 802(14) 9

21 U.S.C. 812(c)I(C)(9) 9, 39, 41

21 U.S.C. 841(a)(1) 2, 3, 22,

41, 46, 49,

52, 60, 93

21 U.S.C. 841(b)(1)(A)(v) 24, 28, 41

21 U.S.C. 841(b)(1)(B) 50, 51, 60

21 U.S.C. 881(a)(3) 93

21 U.S.C. 881(a)(9) 93

28 U.S.C. 940 . 60

28 U.S.C. 991(b) (1)(B) 59, 60

54 Fed. Reg. 41, p. 9136. 44

132 Cong. Rec. H., Sept. 10, 1986

pp. 6523, 6526,

6532, 6534,

6558, 6574 54

132 Cong. Rec. S., Sept. 30, 1986

pp. 14301 48

Windholz, et. al., Eds.,

ae: Sas See Sars The Merck Index, Tenth

99 Cong. 2d Sess 46, 47, 48, Edition (1983 -

Ve ( ), Pp 805-806 39

Washton, Cocaine Addiction: Treatment,

PU be ie eee —__Recovery, and Relapse Prevention

98 Stats. at Large 40 18 (1989) 27

U.S.S.G. 1990 Ed., 2D1.1, 2.51 6, 60, 63

TREATISES AND OTHER

AUTHORITIES

Black’s Law Dictionary (6, Ed., 1990)

Claus, Ed., Gathercoal & Wirth’s

Pharmacognosy, p. 508 (3d Ed.,

1956, Lea & Febiger, Publishers) 39

"Cocaine Use in America: Epidemiologic

and Clinical Perspectives" 214

(Kozel & Adams, Eds.), N.I.D.A.

Pamphlet, No. 61, 1985 27

Diamorphine 63, 98 (Scott Ed., 1988) 27

Grinspoon & Bakalar, Psychedelic

p. 77

(Basic Books, 1979) 33

Hamilton, et. al., Federalist

(Bourne Ed., 1901) at 101 76

Platt, Heroin Addiction: Theory,

___Research, and Treatment 50

(2d Ed., 1986) 27

Wells, Psychedelic Drugs 48 (1974) 31

xii xiii

No. 90-5744

SUPREME COURT OF THE UNITED STATES

October Term, 1990

RICHARD CHAPMAN, et. al.,

vs.

THE UNITED STATES OF AMERICA

BRIEF OF RESPONDENT, STANLEY MARSHALL

In Support of Petitioners,

Urging Reversal of Judgment

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Seventh Circuit in this

case is reported as United States v.

Marshall 908 F.2d 1312 (7 Cir. en banc.,

1990). The opinion of the District Court

in respondent’s case is reported as United

States v. Marshall 706 F.Supp. 650 (C.D.,

Ill., 1989). The opinion of the District

Court in petitioner’s case, (United States

v. Chapman, et. al., No. 89-CR-46, W.D.,

Wis., 1989), is unreported.

JURISDICTION

Marshall adopts the jurisdictional

statement of petitioners.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Marshall adopts the statement of

relevant provisions of law as stated by

Chapman.

Regarding section V of this brief, the

Eighth Amendment to the United States

Constitution provides that "{e]xcessive bail

shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments

inflicted."

STATEMENT OF THE CASE

Marshall was arraigned on September 8,

1988 on a superseding indictment charging

him with conspiring to distribute L.S.D.

during January through June of 1988 in

violation of 21 U.S.C. 84l(a)(1) [ (count

I)]; using a communication facility during

May 2, 31, and June 7 and 8, 1988 to

facilitate the foregoing in violation of 21]

U.S.C. 843(b), [(counts II, III, IV, and

V)j]; and with distributing more than ten

grams of "a mixture or substance containing

a detectable amount of iysergic acid

diethylamide (L.S.D.)," on March 9-17,

1988, in violation of 21 U.S.C. 84l(a)(1)

and 18 U.S.C. 2. (Superseding Indictment).

On February 7, 1989, Marshall agreed to

a bench trial and stipulated that the

Government proof at triai would be, (in

essence), as follows:

In March of 1988, an agent of the Drug

Enforcement Agency seized an aggregate of

11751 doses of L.S.D. from Meirl Neal and

Lyndon Harlow in Springfield, Illinois.

(Stip. at 1-2). Harlow, cooperating with

the D.E.A., named Marshall as his source,

(Stip. at 3, 5), and participated in a

series of tape-recorded conversations with

Marshall at which further L.S.D. trans-

actions were discussed. (Stip. at 4)

This stipulation effectively conceded all

elements of all counts, save for the

allegation in count VI charging that

Marshall distributed "more than ten grams"

of a “mixture or substance containing

L.S.D.," the truth of which was the sole

disputed issue at the bench trial. Both the

defense and the Government produced testi-

mony from expert witnesses on this issue.’

The testimony was as follows:

L.S.D. is a non-habit forming hallu-

cinogenic drug (Tr. 3l, 67), originally

tested for legitimate use in psychiatry,

: The Government called Richard

Gelsomino, a forensic chemist with the Drug

Enforcement Agency since 1972. (Tr. 6-8).

The defense called James O’Donnell,

D.Pharm., a pharmacologist, pharmacist, and

nutritionist, who is affiliated with Rush

Medical College in Chicago and who also

maintains his own consulting firm. Dr.

O’Donnell has, on occasion, consulted for

both the defense and for the Government.

(Tr. 61-65, 79-80).

(Tr. 67), but now controlled as a schedule

I substance. (Tr. 12, 15). When ingested,

(Tr. 32), the drug causes sensory

distortions and depersonalization which

users refer to as "a trip." (Tr. 67:16).

The drug occurs as a free base which is

soluble in certain organic liquids. (Tr.

38, 39, 68). L.S.D. can also be made into

a tartrated salt, which can dissolve in

water. (Tr. 39; cf., Tr. 68, 81).

In these forms, L.S.D. is clinically

effective in incredibly small amounts. The

Government’s chemist testified at trial that

he had personally seen doses of L.S.D.

weighing as little as twenty millionths of

a gram, and the strongest dose of L.S.D. he

had ever encountered weighed two hundred

micrograms. (Tr. 34, 37). Marshall’s

L.S.D. was sold in doses of anywhere from

forty-five to seventy-five micrograms. (Tr.

23, 28, $2).°

This is so small an absolute quantity

of L.S.D. that it is impossible to isolate

it for actual ingestion. As such, L.S.D.

is commonly placed onto "carriers" and

ingested in this more tractable form.’

Examples of these carriers are food, sugar

cubes, gelatin, and extremely thin "blotter

paper." (Tr. 48, 49, 77, 81, 83).‘*

Because L.S.D. is “bought and sold by

* The sentencing guidelines state that

an average dose of L.S.D. weighs fifty

micro-grams. (U.S.S.G. 1990 Ed., 2Dl.1,

2.51, “Typical Weight Per Unit Dose ...

Table)." At the time of Marshall’s offense,

the typical weight per dose was assessed at

100 micrograms.

*» In the words of the trial court:

"The pure chemical compound of L.S.D. is

extremely potent,--far too potent to be of

any use to those who would ingest it. It is

therefore necessary to dilute the solid

L.S.D. and convert it into an easily

digestible forn." j

706 F.Supp. 650, 652 (C.D. Ill., 1989).

. L.S.D. can also be mounted on

tablets. Although this is rarely done, (Tr.

81), this Court has encountered at least one

L.S.D.-on-tablets case.

States 418 U.S. 424, 426 (1974).

dosage units, not bought and sold by

weight," (Tr. 30:24-25), the form of the

specific carrier makes little difference to

the consumer of L.S.D. Moreover, it is

immaterial whether the carrier is ingested

along with the drug. (Tr. 49). Whether

blotter paper, for example, is chewed,

swallowed, placed in a drink, sucked, or

licked, the user will absorb the L.S.D. so

long as a mucous membrane is exposed to it.

(Tr. 48-49, 77, 83).°

In the instant case‘ the carrier was

blotter paper. (Tr. 8, 17).

L.S.D. is applied to blotter paper by

dissolving or suspending it in solution,

which is in turn either dotted on the paper

from pipettes, (Tr. 33), or evenly applied

by dipping /’or spraying. The liquid portion

of the solution evaporates, leaving the

* The defense chemist also spoke of

the possibility that the drug could be

absorbed transdermally. (Tr. 77).

L.S.D. (Tr. 32-33). Tests revealed that

Marshall’s L.S.D. was applied through one of

the methods ensuring even distribution.

(Tr. 18, 33).

The Government’s expert testified that

he calculated drug weights in this case

pursuant to a standardized Drug Enforcement

Agency form which contains spaces for

listing the "net" and "total net" weight of

a sample. (Tr. 21, 42-43).°*

The "total net" is the weight of the

L.S.D., alone. (Tr. 46). The "total net" in

this case was .67072 grams. (Tr. 47). Not

included in this "total net" was the weight

any isomers of L.S.D. which happened to be

included in the sample. (Tr. ed Pie

* The form also contains a space for

" "

gross" weight. The "gross" weight is the

weight of the L.S.D., blotter paper, and the

evidence envelope, (Tr. 43, 44), and does

not figure im this case.

An isomer is’ a molecule with the

same chemical formula as another molecule

(continued... )

The "net" weight is the weight of the

blotter paper plus L.S.D. (Tr. 45).

Marshall’s sentence was based on this "net"

weight.

When "net" weight is figured, not only

the paper and the drug are weighed, but any

impurities which happen to be on the paper

are also weighed. (Tr. 46).

The "net" here came to 113.32 grams,

which translates to .96 grams per average

dose. (Slip Op. at 4, fn. 1; United States

v. Marshall, supra, 908 F.2d at 1316, fn.

asur The ratio of Marshall’s aggregate

L.S.D. to Marshall’s aggregate paper was

7(...continued )

but in which the atoms are differently

arranged in space. (Tr. 15-16). L.S.D.

isomers are classed as controlied substances

in the same "schedule" as is L.S.D. (Tr.

16; 21 U.S.C. sections 802(14); 812 Schd.

I(c)(9)). Two blotter paper exhibits in

this case showed the presence of L.S.D.

isomers. (Tr. 15).

* Marshall’s several blotter papers,

although differing slightly 4n weight and

appearance, all weighed very close to the

same net-per-dose amount. (Tr. 20-29)

0.59%, i.e., Marshall’s paper agglomerate

was a bit over half-of-one-per-cent L.S.D.

The Government’s expert testified that

he included the weight of the paper into the

"net" because it is “standard operating

procedure," (Tr. 48:16), to do so in L.S.D.

cases. In determining the weight of any

drug, “{a]ll I can do is do what they tell

me to do, and per their rules I have to

weigh it as it comes." (Tr. 51:10-11).’

The defense expert testified that the

blotter paper was a "vessel," (Tr. 78),°°

i.e., a "container," (Tr. 79), similar to a

vial, ampule, or "patch." (Tr. 72-75). The

* Procedures vary with other drugs.

For example, gelatin capsules are not

weighed if the drug is powdered, (Tr. 50),

nor if the drug is a non-prescription

(Schedule I) drug, (e.g. L.S.D.) (Tr. 56).

With cocaine, the glass vial in which the

cocaine is packed is not weighed, (Tr. 50,

53), but the filler with which cocaine is

"cut" is weighed. (Tr. 54).

. - The Government’s witness was

equivocal as to whether L.S.D. carrier-media

are “vessels." (Tr. 49-50).

blotter paper was not part of the drug,

itself. (Tr. 79). Although the paper is a

"substance" in ordinary parlance, (Tr. 83),

it is not a "substance" in any

pharmacological sense. (Tr. 86).

The trial court found Marshall guilty,

holding that the blotter paper was a

"mixture or substance containing L.S.D.,"

equivalent to the "cut" in cocaine trans-

actions,’ or the stalks and roots of

marijuana plants. (Tr. 120-123). In a

written opinion, [United States v. Marshall

706 F.Supp. 650 (C.D. Ill., 1989)], the

Court elaborated on these findings.

Marshall appealed to the Court of

Appeals for the Seventh Circuit. After the

case was argued before a three judge panel

of that Court, the Court set the matter for

109 The Government’s expert had

testified that L.S.D. on blotter paper is

not "cut" in the same sense as cocaine is

cut with filler. (Tr. 55).

argument en banc in conjunction with the

pending appeals of Chapman, et. al. After

argument, the Court of Appeals affirmed the

Marshall’s conviction, along with those of

petitioner and his codefendants, by a

Six-to-five vote. This case is before the

Court on Chapman’s petition for certiorari.

SUMMARY OF ARGUMENT

Sentencing in L.S.D. cases when based

on carrier weight yields freakish results.

Sentence length varies radically according

to an adventitious factors unrelated to

criminal culpability. Smaller dealers may

be punished more severely than larger ones

merely because they mount their drug on a

heavier package for distribution.

(A)

"Ambiguity concerning the ambit of

criminal statutes should be resolved in

favor of lenity." Simpson v. United States

435 U.S. 6, 15 (1978). The “mixture or

substance" language in the penalty statute

(and corresponding Guidelines) is so

ambiguous that the rule of lenity must be

applied in this case.

(B)

The statutory language is ambiguous.

Ironically, while all Courts have thus far

held that the statutory language has a plain

meaning, these same courts have divided as

to the meaning of key words in the

supposedly "plain" phrase. [E.g., compare

United States v. Bishop 894 F.2d 981 (8

Cir., 1990), with United States v. Marshall

908 F.2d 1312 (7 Cir., en banc, 1990)

regarding the definition of "substance

containing."].

One reason for the confusion is that

the words "substance" and "mixture" each

have various "dictionary" meanings, some of

which preclude deeming carrier media a

"Substance or mixture containing L.S.D.."

Moreover, in chemistry, "mixture containing

L.S.D." may be a term of art, referring to

L.S.D. tartrate, a different form of the

drug.

Reasonable judges, as well as criminal

justice professionals have become confused

from this array of contradictory meanings of

the words in the statute, which can

therefore fairly be described as

"ambiguous."

(C)

Even if the words of the statute were

plain, the legislative history suggests that

Congress did not intend to apply them to

carrier media. The phrase “mixture or

substance" was introduced without comment

into the statute to replace somewhat

different language directed at "kingpins"

who diluted their drugs in order to increase

the volume of sales. This consideration is

irrelevant to L.S.D., which is marketed by

the dose. There is nothing in L.S.D. sales

equivalent to the "cutting" of drugs such as

heroin and cocaine, which was the apparent

target of such language. Moreover,

calculating L.S.D. sentences on the weight

of carrier media punishes mid-tier L.S.u.

dealers more than heroin or _ cocaine

kingpins, a result clearly not intended by

Congress, which does not appear to have

regarded L.S.D. as a special menace.

(D)

The resulting punishment schedule warps

the whole structure of the uniform Deter-

minate Sentence Law. It is doubtful that

Congress intended to undermine its recently

and carefully architected determinate

sentence scheme merely to impose long

punishments in L.S.D. cases.

Sentencing schemes which discriminate

between like defendants on the basis of

arbitrary factors violate the Equal

Protection component of the Due Process

Clause Of the Fifth Amendment. Marshall] v.

United States 414 U.S. 417 (1974); Bolling

v. Sharpe 347 U.S. 497 (1954). Carrier-

weight-based sentencing, even if intended by

Congress, violates Due Process.

(A)

A person who sells L.S.D. on blotter

paper is not a worse criminal than one who

sells it on a lighter’ mediun. To

distinguish between like offenders on this

basis is irrational.

(B)

Distinguishing between offenders on the

basis of carrier weight frustrates the whole

purpose of Anti-Drug legislation. Carrier-

weight-based sentencing can readily be

evaded by methods which will only make the

job of law enforcement more difficult in

L.S.D. cases.

(C)

Nor can a rational reason for the

sentencing scheme be advanced. The

Government has offered none. The Court of

Appeals has offered three, but they are

meritless. For example, Congress realized

that L.S.D. sales were diminishing, not

increasing, as of 1986, so there is no

reason to conclude that it passed a law to

eliminate biotter paper as the source of

its “renewed success."

(D)

While Congress need not punish similar

conduct identically, it is impermissible

for Congress to set out, in a single

sentencing statute, an irrational range of

penalties. Enforcement of such irrational

penalties is assailable as a violation of

Equal Prc_ection. United States y.

Batchelder 442 U.S. 114, 124-126 (1979).

III

Another Due Process violation implicit

in carrier-weight-based sentencing is that

it fails to convey, with sufficient clarity,

the consequences of trafficking in L.S.D..

Prior to any decisional law on the subject,

Marshall found himself subjected to harsh

and novel penalties under a newly enacted

and ambiguous statute, in violation of the

Due Process clause of the Fifth Amendment.

Marshall joins in petitioner Chapman’s

contention that sentencing discriminations

involve the fundamental right to "liberty"

as provided in the Due Process clause. As

such, statutes which impose unequal

sentences on like defendants for identical

crimes should be strictly scrutinized by

this Court. Cases which suggest that

sentencing schemes should be tested on the

basis of their mere rationality did not, in

fact, invclve punishment schemes. Rather,

they involved schemes which unequally

allocated benefits, such as "good time," to

sentenced inmates.

(A)

Marshall respectfully invokes leave by

this Court to present an issue litigated

below and raised by him in his- own

certiorari petition which, for procedural

reasons, has not yet been acted on by this

Court. Cf., Peters v. Kiff 407 U.S. 493,

495 (1972). He sincerely believes that this

; 4 , :

Claim is important in the analysis of this

case.

(B)

The Eighth, Amendment prohibition

against cruel and unusual punishments is

violated when adventitious conduct not

related to actual culpability forms

essentially the entire basis for a lengthy

criminal sentence, especially when that

sentence exceeds the length of sentences

given to offenders who violate other

comparable provisions of the same statute.

This Court has long recognized that

punishment cannot permissibly be based on

non-culpable "status," Robinson _—iv.«

California 370 U.S. 660 (1962)], or be

unrelated to the gravity of the actual

offense. Solem vy. Helm 463 U.S. 277

(1983). Applying this doctrine to

forfeiture, the Ninth Circuit has held that

it is a violation of the Eighth Amendment to

seize an entire enterprise when only a

portion of it has been devoted to criminal

conduct. United States v. Busher, 817 F.2d

1409 (9 Cir. 1987).

Roughly seventy-five percent of the

length of Marshall’s sentence is based on

the weight of paper which is, of itself,

probably not illegal to possess and which

certainly did not add to his culpability in

the instant offense. This is in violation

of the prohibition against cruel and unusual

punishments in the Eighth Amendment of the

Constitution.

ARGUMENT

CONGRESS NEVER PASSED A LAW

ALLOWING INERT "CARRIERS" TO BE

WEIGHED WHEN CALCULATING SENTENCES

IN L.S.D. CASES

Introduction: Sentencing in

L.S.D. Cases Based On Carrier

Weight Yields Freakish Results

Unlike most "street" drugs of abuse,

L.S.D. is not marketed or consumed according

to the weight of the "mixture or substance"

into which it is diluted.

Instead, L.S.D. is marketed and

consumed by the dose. Should weight be

specified,--and there is no indication that

it was specified in the instant case,--it is

the weight of pure L.S.D. per dose. No

"trade usage" has grown to discount for

dilution of the product.’?

2 This is not to say that L.S.D. might

never be sold in a mixture with some other :

drug, e.g., with methamphetamine.

(continued...)

Nonetheless, Congress has chosen to

punish transactions in L.S.D. on the basis

of the weight of "mixtures or substances

containing” it. 21 U.S.C. 841(b)(1)(A)(v).

Corollary provisions in the Sentencing

Guidelines*”” fix the precise’ sentence,

again based on the weight of the "mixttre or

substance."

Since Congress is empowered to have

made this choice of penalty structure, the

‘*(...continued)

But this is not at issue here. In this

case, as in all of the others published on

the issue posed in this case, the item

marketed by the defendant appears to have

been "pure" L.S.D. mounted on some sort of

carrier mediun. See,

McGeehan 824 F.2d 677, 681 (8 Cir., 1987),

cert. den. 484 U.S. 1061 (1988). United

States v. Daly 883 F.2d 313 (4 Cir., 1989);

868 F.2d 125 (5

United States v. Taylor

Cir., 1989); United States v. Elrod 898 F.2d

60 (6 Cir., 1990); United States v. Rose 881

F.2d 886 (7 Cir., 1989); United States v.

Bishop 894 F.2d 981 (8 Cir., 1990); United

States v. Larsen 904 F.2d 562 (10 Cir.,

1990); United States v. Healey 729 F. Supp.

140 (D.C. Cir., 1990).

** U.S.S.G. section 2Dl.l1 at fn. "*."

See, gen., United States v. Daly 883 F.2d

313, 316-317, 317, fn. 4 (1989).

wisdom of it is beyond the reach of argument .

in this case.

The choice has, however, presented a

significant problem for the Courts.

Although L.S.D. is never sold in diluted

form, it is rarely sold all by itself. This

is because individual doses of L.S.D. are so

very light and small that they must

necessarily be delivered to the consumer

"wrapped up" in larger packages. The

packages, referred to hereafter as "carrier

media," include extremely thin "blotter

paper," the carrier in the instant case.

The Government has urged in this and

other cases that the phrase "mixture or

substance containing L.S.D." refers to these

carrier media.

If the Government’s interpretation is

accepted, sentences in L.S.D. cases will be

based almost wholly on the weight of the

“carrier media". This has three

consequencds.

First, sentences in L.S.D. cases will

be very, very long. While typical carrier

media are light, they weigh much more than

does L.S.D. Gelatin is forty times heavier

than the drug.** Marshall’s blotter paper

weighed a bit less than one-hundred-seventy

times as much as his L.S.D.

The absolute weights specified in the

sentencing statute are small, (most likely

a consequence of the extreme potency of

L.S.D.); a mere ten grams (a third of an

ounce) triggers a mandatory ten-year minimum

sentence. 21 U.S.C. 841(b)(1)(A)(v).

However light a carrier may be, it is so

much heavier than L.S.D. that’ small

quantities-of it can build up to ten grams

quickly, and minute increments can increase

sentence exposure drastically thereafter.

In the instant case, Marshall

** United States v. McGeehan 824 F.2d

677, 680 (8 Cir., 1987) (gelatin tabs weigh

-00225 grams per dose).

trafficked in .67072 grams of L.S.D. mounted

on 112.65 grams of inert paper. Had he been

sentenced for the L.S.D. alone, he would

have received something on the order of five

years imprisonment (and no “mandatory

minimum");** largely on the basis of his

paper, Marshall received, instead, a

sentence of twenty years.

The second consequence is that

sentences amongst L.S.D. dealers will vary

radically not according to amount of L.S.D.

sold, but according to the adventitious

factor of carrier weight. Had Marshall and

petitioner Chapman** merely switched brands

of blotter paper with each other, each would

have moved two spaces up or down on the

+s 600-800 grams of L.S.D. brings a

sentence in the range specified in level 22

of the drug table. (U.S.S.G. at 2Dl.1).

Marshall’s sentenced was adjusted upward to

level 24 for independent reasons. The

sentence under level 24 is 51-63 months.

** Again, it must be stressed that

petitioner’s drug dealing was unrelated to

Chapman’s.

/ |

sentencing table ‘v.8.8.@. >. ®@ - deb,

sentencing table]),--reducing Marshall’s

sentence by as much as five years and

increasing Chapman’s sentence by two. Had

Marshall placed his L.S.D. on gelatin, the

aggregate would have weighed about 27

grams.*” This would have placed him four

points lower on the _ sentencirg table,

reducing his sentence by as much as eight

years.

The third consequence is that L.S.D.

trafficking is punished far more severely

than is trafficking in other drugs, even

heroin and cocaine. Marshall received a

twenty year sentence for selling just under

twelve thousand doses of L.S.D. mounted on

just over one hundred grams of carrier. As

Judge Posner pointed out in his dissent

below, for Marshall to have received a

comparable sentence for dealing heroin, he

McGeehan, supra, 824 F.2d at 680.

would have to have sold ten kilograms,

enough for one to two million doses; the

corresponding amount of cocaine (fifty

kilograms) would yield from 325,000 to five

million doses.’** Even "crack" must be

distributed at the fifty-thousand-dose level

to fetch a twenty year sentence. (Slip Op.

at 41-42; United States v. Marshall, supra,

908 F.2d at 1334, Posner, J., dissenting.).

As appears more fully below, the

literalist construction of 21 U.S.C. 841(b)

which yields such results is wrong. In

fact, the statutory language is ambiguous

and the legislative history suggests that

carrier-weight-based sentencing defeats

- The sources for these statistics

with regard to heroin are: Platt, Heroin

Addiction: Theory, Research, and Treatment

50 (2d Ed., 1986); cf., Diamorphine 63, 98

(Scott Ed., 1988)). The sources with regard

to cocaine are: Washton, Cocaine Addiction:

Treatment, Recovery, and Relapse Prevention

18 (1989); Cocaine Use in America:

Epidemiologic and Clinical Perspectives 214

(Kozel & Adams, Eds.), N.I.D.A. Pamphlet,

No. 61, 1985.

rather than furthers the expressed aims of

Congress.

(A)

Construed Under the Rule of

Lenity, The Law Does Not

Provide For Carrier-

Weight-Based Sentencing

This Court has repeatedly demonstrated

a "reluctance to increase or multiply

punishment absent a clear and definite

legislative directive," [Simpson v. United

States, supra, 435 U.S. 6, 15 (1978)]),

holding, instead, that "ambiguity concerning

the ambit of criminal statutes should be

resolved in favor of lenity." Simpson v.

United States, supra, 435 U.S. at 15; United

States v. Bass 404 U.S. 336, 347 (1971);

Rewis v. United States 401 U.S. 808, 812

(1971).

Marshall invokes this "rule of lenity"

and urges this Court to construe the

statute in his favor for reasons as follows.

(B)

The Language of the Statute

Is Ambiguous

Marshall turns first to the language of

the statute, itself. Reiter v. Sonotone

Corporation 442 U.S. 330, 337 (1979).

Several appellate cases have addressed

the meaning of the phrase "mixture or

substance containing" with reference to

trafficking in L.S.D. In each, the

Government position has been that because

the words "mixture" and “substance” have

plain "dictionary" definitions, the phrase

"mixture or substance containing" requires

no special judicial construction. E.g.,

United States v. Daly, 883 F.2d 313 (4 Cir.

1989), cert. den. 110 S.Ct. 2622 (1990);

United States v. Bishop, 894 F.2d 981 (8

Cir. 1990). This was the position taken by

the Government in opposition to the instant

petition. (Brief in Oppos. at 7-9).

This lax construction of the statute

has superficial appeal, and the unanimity of

appellate opinion builds confidence in it.

On closer examination, however, the

confidence fades.

(1)

The Phrase “Substance Contain-

ing ... L.S.D." Has Been So

Variously Interpreted by Different

Courts and Professionals

That It Cannot Be Said to Be

"Plain" or "Unambiguous"

Consider, for example, the phrase

"substance containing L.S.D.." Several

Courts of Appeals have taken up this

literalist position: paper is a substance;

when paper "contains" L.S.D., it is a

"substance containing L.S.D." See, United

States v. Daly, supra, 883 F.2d at 317-318;

United States v. Bishop, supra, 894 F.2d at

986; see, also, United States v. Taylor 868

F.2d 125, 127 (5 Cir., 1989).

These holdings, which equate "substance

containing" with "vessel containing" are

problematic, because it does not appear that

Congress ever intended to include other

sorts of common "vessels," such as vials or

syringes, in the weight of a drug for

sentencing purposes. E.g., United States

vy. Smith 840 F.2d 886, 888 (11 Cir., 1988),

cert. den., 488 U.S. 859 (1988).’” The

list of excluded "vesseis" is not restricted

to hard objects, such as vials. when

illegal drugs are sold in capsules made of

gelatin, the weight of the capsules is not

included in the calculation of weight for

sentencing purposes. E.g., Thomas v. United

States 239 F.2d 7, 8 (10 Cir., 1956). Nor

does the weight of baggies in which drugs

are packaged for shipment go into the

‘** This suggests an ironic scenario.

There are rare instances in which L.S.D. is

legitimately possessed by research

laboratories. Such "legitimate" L.S.D. is

packaged in ampoules, [Wells, Psychedelic

Drugs 48 (1974)). If “mixture or

substance" includes blotter paper but not

ampoules, dealers who steal L.S.D. to sell

it are rewarded for their theft with a

Significantly reduced sentence.

calculation of weight for’ sentencing

purposes. United States v. Luster 896 F.2d

1122, 1127 (8 Cir., 1990). Only in L.S.D.

cases does the Government argue that gelatin

or packaging materials are "substances

containing" the illegal drug.”

The Court of Appeals in the instant

case refused to construe the phrase

"substance containing" as broadly as did the

Daly and Bishop Courts, citing to the

absurdity of weighing a single dose of

L.S.D. "contained" in a heavy glass bottle

or a jetliner for distribution. (Slip Op.

at 7; United States v. Marshall, supra, 908

F.2d at 1317).”

7° ~6dIn this case it appears that the

Government chemist excluded some packaging

materials from his net weight calculation.

This apparent recognition that at least some

packaging materials cannot figure in the

sentencing calculus only underscores the

inconsistency of weighing others.

* It is well known that cocaine and

heroin dealers sometimes, when caught,

swallow the balloons into which they have

(continued... )

The Seventh Circuit was, of course,

correct in this regard. But the point here

is not only that a narrower reading of the

phrase "substance containing" is the correct

one, but that the phrase "substance

containing" is sufficiently ambiguous that

various Courts have disagreed over its

definition, although each has proclaimed it

to have a plain meaning.

Iii fact, “substance” has two different

and incompatible meanings. "Substance"

refers either to the unchanging essence of

a thing or to any material object, however

*(...continued)

placed the drug for shipment. If such a

Gealer is thereafter captured, literal

application of the phrase "substance

containing" would require the arresting

agency to weigh the dealer. This also might

occur in L.S.D. cases. Grinspoon & Bakalar,

p. 77 (Basic

Books, 1979), report that L.S.D. used to be

smuggled inside the fingernails of

distributors. (See, also, Tr. 77).

alloyed or composite its composition may

be. ?? Only under tne latter, broader,

meaning does the phrase "substance

containing" refer to a carrier medium on or

in which L.S.D. has been placed.

Under the first meaning, a "substance

containing L.S.D." is something which is

"essentially" L.S.D., for example L.S.D. in

solution or an "isomer" of L.S.D. This was

the sense to which the Government’s own

chemist below repeatedly referred to the

L.S.D. (E.g., TE 8:24, 9:2-3, 1134,

15:3).”° This was also the sense in which

the word was used in United States vy.

2 ~—r- Bhack’s Law Dictionary (6 Ed.,

1990) contains only the first definition,

defining "substance" as the "[e]ssence as

distinguished from the form." If blotter

paper is the "form," and L.S.D. is the

"essence," blotter-paper-plus-L.S.D. is not

a "substance" containing L.S.D. under this

definition of "substance." The dictionary

does not define "mixture."

7 Further to complicate matters, on

one occasion, he referred to the blotter

paper as a “material,” (Tr. 9:16 and 20-21),

although on another he referred to the

L.S.D. at the "material." (Tr. 11).

Healey 729 F. Supp. 140, 142 (D.C. D.C.,

1990), which reasoned that "a substance is

a “species of matter of a definite chemical

composition, or "{a]ny particular kind of

corporeal matter" ..." By contrast, "[a]

piece of paper soaked in ink, beer, or

L.S.D. is not a kind or species of matter."

United States v. Healey, supra, 729 F.Supp.

at 142. While such a piece of paper might

be a “substance” in a loose sense, it is

conceptually opposite to a "substance" in

the narrower sense of "substance"-as-

"essence".

In sun, the phrase "substance

containing L.S.D." iS an ambiguous one

because "substance" has two plain, but

contrasting meanings.

(2)

Tne Phrase "Mixture Containing"

Is Also Ambiguous

Nor have Courts had much more luck

with "mixture."

In common parlance, "mixture" means a

commingling of compounds.

Here, the Court of Appeals used the

term in a somewhat odd sense. The Court

reasoned that when L.S.D. in alcohol is

applied to blotter paper, the alcohol

evaporates, leaving the L.S.D. not "on,"

but "in" the paper. "You cannot pick a

grain of L.S.D. off of the paper. Ordinary

parlance calls the paper containing tiny

crystals of L.S.D. a mixture." (Slip Op. at

7-8; United States v. Marshall, supra, 908

F.2d at 1317).

This definition is "odd" because the

Court of Appeals has not described a true

mixture. "Mixture" means reciprocal

blending; a salad is "mixed" because the

ingredients are distributed amongst each

other. According to the Court of Appeals,

when L.S.D. is placed on blotter paper, the

L.S.D. is "mixed" with the blotter paper,

but not vice-versa, i.e., there is no

blotter paper in the L.S.D. In this sense,

the L.S.D.-plus-paper agglomeration differs

substantially from, for example, a cocaine-

plus-manitol combination, which is a true

"mixture."

Moreover, the distinction between

L.S.D. “in" the fibers of the paper as

opposed to "on" them is an odd one; one is

hard pressed to fathom why Congress chose to

increase drug penalties on the basis of it,

Since it is of no practical importance. The

Government’s own chemist testified at trial

that if L.S.D. cannot be "picked" off of

paper, it can be "licked" off of it.**

(Tr. at 48). To say that a chemical is a

"mixture" with paper because it must be

removed with a tongue rather than with a

** Actually, he never said that L.S.D.

can not be "picked" off of paper. This

appears to be a fact which first appears in

this record in the opinion of the Court of

Appeals.

hand is akin to saying that a lightbulb is

a "mixture" with a socket because it cannot

be pried out, but must be unscrewed.

But even if the definition of

"mixture" adopted by the Seventh Circuit

were correct, it would not be dispositive.

Again, the problem is that in common speech,

the term "mixture" has divergent practical

applications. Sometimes "mixture" refers to

a blending of ingredients which retain

separate identities. But in everyday

speech, "mixture" may also refer to the

degree of purity possessed by a single item,

e.g. the "fuel mixture" required to make an

engine run well.

Even if L.S.D.-plus-paper were a

mixture in the sense of a blend, it is not

a “mixture” in the other. sense. In

chemistry, however, there is a "mixture" of

L.S.D. -- i.e. an impure form of it --which

is so common that a reasonable mind might

think that Congress was’ referring to

it when it added the "mixture" language to

section 84l(b). As discussed by the

Government’s expert at trial, L.S.D. occurs

in both a “free base" form and in the form

of a tartrated salt. A tartrated salt is a

"mixture" of the alkaloid L.S.D. and an

acid, in this case tartaric acid.

Windholz, et. al., Eds., The Merck Index,

Tenth Edition (1983), pp. 805-806; Claus,

Ed., Gathercoal & Wirth’s Pharmacognosy, p.

508 (3d Ed., 1956, Lea & Febiger,

Publishers). This tartrated salt, a common

drug of abuse which has ; ldng been listed

(along with L.S.D.) as a controlled

substance in schedule QI, ‘2i U.8.C.

812(c)I(c)(9)], is about twice as heavy as

is pure L.S.D.. Merck Index, supra.

Readily soluble in water, [United States v.

Healey. Supra, 729 F.Supp. at 141], deaiers

like it because it is stable, soluble, and

thus easy to prepare for distribution.”

When the Government’s chemist at trial

used the term "mixture," (to say that

Marshall’s L.S.D. was “pure” and not a

"mixture," (Tr. 11:18)), he may have been

referring to the distinction between

"“freebase" L.S.D. and L.S.D. “tartrate."

The significance of the seemingly

arcane distinction between L.S.D. and

L.S.D.-tartrate is that between’ the

initiation of weight-based penalties for

drug dealing in 1984,7% and the enactment

of the "mixture or substance language in

1986, persons trafficking in this heavier

"salt" of L.S.D. might have claimed

7> An L.S.D. salt need not, of course,

be tartrated. There are as many “mixtures

containing L.S.D." in terms of this

-definition as there are acids to add to the

alkaloid.

v. 4, p. 3605 (5 Ed., 1982, Chapman & Hall,

Publishers).

7° Comprehensive Crime Control Act of

1984; Pub. L. No. 98-473, 98 Stats. at Large

2068.

something of a "free ride." "Schedule I,"

[21 U.S.C. 812(c)I(c))}, banned, inter alia,

"salts, isomers, and salts of isomers of. .

-(9) lysergic acid diethylamide, and 21]

0.8.C. 841(a) banned trafficking in

substances controlled under, inter alia,

schedule I. However, sentences (prior to

1986) were calculated not on the basis of

the weight of the somewhat heavier "salt" of

L.S.D., but on the weight of the pure

"L.S.D. freebase" contained jin the salt,

i.e., on the weight of "L.S.D." Fmr. 21

U.S.C. 841(b)(1)(A)(iv) (Supp. III, 1982).

A rational interpretation of the phrase

"mixture containing L.S.D." is that Congress

intended that persons trafficking in

L.S.D.-salts would be punished for the whole

weight of the salt, rather than for the

lesser weight of the "pure freebase" L.S.D.

contained therein.?”’

Here, the trial court apparently

thought of "mixture" in this second sense,

i.e. as an index of purity.** Using this

definition, the trial judge wrote that

Marshall’s paper-plus-L.S.D. was not a

mixture. By contrast, the Court of Appeals

” A “hypothetical” illustrates the

point. To prevent high blood pressure,

Congress bans trafficking in sodium. Later,

realizing that sodium is commonly

distributed in the form of table salt,

Congress bans distribution of "mixtures"

containing sodium. Although sodium chloride

(salt) is clearly a mixture, no one would

think of weighing the t-bone steak upon it

had been sprinkled as a means of determining

the weight of the sodium mixture. Yet this

is precisely what is occurring in L.S.D.

cases.

” "If the legislature had intended

merely to go after L.S.D. regardless of its

purity, it could have stopped with the word

"mixture" .... But the legislature went on

and included the words "or substance

containing a detectable amount of" L.S.D.

This latter phrase goes beyond merely the

--it clearly

contemplates the medium in which the drug is

ingested, be it paper, sugar cube, chocolate

chip cookies, or any other ‘substance.’"

United States v. Marshall. supra, 706

F.Supp. at 653.

held explicitly that it was. Again, the

point here is not merely that one court was

right and the other wrong, but that two

courts disagreed over the meaning of a word

that both proclaimed to have an obvious

meaning.

In sum, courts which agree that the

phrase "mixture or substance" is

unambiguous, disagree as to the meaning of

key words in the words in the phrase. Such

disagreement is inevitable in light of the

dichotomies in the dictionary definitions of

both "mixture" and "substance" and in light

of the real-world fact that “mixture

containing L.S.D." might well refer to

L.S.D.-tartrate as opposed to blotter paper.

It thus defies the lessons of two years of

appellate litigation to say, as does

respondent, that there is ""no ambiguity” in

the language of the statute or the

Guideline." (Brief in Oppos. at 9). The

"words of the statute themselves," are

ambiguous.

Courts are not alone in their

confusion. The United States Sentencing

Commission has expressed some measure of

bewilderment concerning application of the

"mixture or substance" language in L.S.D.

cases. On November 30, 1988, the

Commission noted that construction of the

phrase was one of the "Questions Most

Frequently Asked" of the Commission. On

March 3, 1989, the Commission solicited

comments on whether blotter paper ought to

be weighed with the L.S.D. 54 Fed. Reg.

41, p. 9136. After comments were received,

the Chairman of the Commission wrote to

Senator Biden expressing perplexity that

persons dealing one hundred doses of L.S.D.

on different media would be sentenced at

level 12 (10-16 months) for pure L.S.D.; 26

(63-78 months) for paper; and 36 (188-235

months) for sugar cubes. See, United

States v. Daly, supra, 883 F.2d at 316.

The Commission’s uncertainty further

demonstrates that the statutory language is

unclear,--even to sentencing professionals.

(C)

The Legislative History Does Not

Support a Carrier-Weight-

Based Sentencing Scheme

Nor does the legislative history lend

support to carrier-weight-based sentencing.

If anything, the history suggests a far

different intent.

(1)

Congress Did Not Intend a

Drastic Increase in Punishment

For Street Sales of L.S.D.

The "mixture or substance" language was

added to section 841(b) as part of the Anti-

Drug~-Abuse Act of 1986.

The words "mixture or substance,"

themselves, do not appear to have been the

subject of much formal discussion in the

Congress. They first appear as part of the

text of the Senate Bill [{S. 2870, §1002.

See, 132 Cong. Rec. S. 13649] proposed after

the House Judiciary Committee had already

discussed and reported on precursor

language, the phrase "mixture, preparation

or compound." [H.R. Rep. No. 845, 99 Cong.

2d Sess., Pt. 1, at 11-12 (1986)].”

The phrase "mixture, preparation or

compound" was introduced in support of

"([ojne of the major goals of this bill,

to give greater direction to the D.E.A. ane

the U.S. Attorneys on how to focus scarce

” Marshall assumes for the sake of

this discussion that the underlying intent

of both the House and Senate language was

the same.

law enforcement resources." (page ll). The

Committee directed primary focus on "major

traffickers, the manufacturers or the heads

of organizations who are responsible for

creating and distributing very § large

quantities of drugs." (page ll). With

regard to these, "the Committee selected

quantities which if possessed by an

individual would likely be indicative of

operating at... a high level. The

Committee’s statement of quantities is of

mixtures, compounds or preparations that

contain a detectable amount of the drug,--

these are not necessarily quantities of pure

substance." (page 12). "The Committee

[also] determined that a second level of

focus ought to be on the managers of the

retail level traffic, the person who is

filling the bags of heroin, packaging crack

into vials or wrapping pcp in aluminum foil,

and doing so in- substantial street

quantities." (page 12).*°

Interrelated inferences can be drawn

from this language.

First, in the Committee’s text,

"mixture," accompanied by the - words

"compounds" and "preparations," suggests

"mixture" in a "chemical" sense, i.e., the

sense of L.S.D. as a tartrated salt or some

adulterated form.”

Second, although the 1986 legislation

was passed in the charged atmosphere of an

incipient "war on drugs," nothing in the

House Report indicates that the primary

purpose of the "mixture or substance"

language was to increase penalties for drug

dealing.** Rather, the goal of the statute

»° Senator Byrd echoed this two-tier

approach in comments he made to the Senate.

132 Cong. Rec. S. 14301 (9/30/1986).

” "Substance," as used by the

Committee, denotes the drug, itself.

»2 Indeed, at low rates of dilution,

the potential punishment for cocaine and

(continued...)

‘

was to assist the justice system in

differentiating amongst the occupants of

different tiers of the distribution chain.

Inclusion of the "mixture or substance"

language was designed to foster this goal

by, inter alia, referring more realistically

to drugs in the form in which they were

routinely trafficked in bulk.

With this goal in mind, the Committee

differentiated between manufacturers and

"king pins" who create and distribute large

quantities on the one hand, and "managers

of the retail traffic" who package drugs, on

92(...continued)

heroin dealing may have decreased under the

new law, (although it became more certain).

Compare the threshold amounts for high

tier treatment under (/Fnr. 21 U.8.C.

841(b)(1)(A)(i) and (ii), (Supp III, 1982),

(100 grams of opiates or 1000 grams of

cocaine), with those in current 21 U.S.C.

841(b)(1)(A)(i) and (ii), (1000 grams of

"mixture or substance containing heroin" and

5000 grams of a "mixture or substance

containing cocaine.)." Under the new

statute, one can, for example, traffic in

four times the amount of 80% pure cocaine

under the 1986 amendments than under the

1984 law before stepping into the high tier.

the other. “Manager of the retail traffic"

more accurately describes what Marshall did

than does the phrase "major trafficker,

manufacturer, or head of organization."

Marshall’s crime was not to direct a large

organization supplying an entire region or

regions; Marshall’s role was that of a

"hands-on" packager of the drug in the form

in which it ultimately was sold to consumers

in “substantial street quantities."

Marshall has already mentioned in the

Introduction to this section of the brief

that weighing the carrier for sentencing

purposes in this case has placed him at a

sentence level otherwise reserved for heroin

and cocaine "kingpins" trafficking in

millions of doses.

By contrast, weighing the L.S.D. alone

would have placed Marshall right about where

he belonged: at or near the sentence levels

reserved for mid-tier dealers. Section

841(b)(1)(B),-- the section designed to

punish "the managers of the retail

traffic,"--imposes five year (or greater)

sentences on persons who deal heroin in the

10,000 to 20,000 dose range, and cocaine in

the 3250 to 50,000 dose range. This

approaches the range of doses that Marshall

sold. It is no coincidence that the amount

of L.S.D. listed in section 841(b)(1)(B) is

one gram, which (according to the "Typical

Weight per Dose" table) yields 20,000 doses;

both figures correspond to the amount of

"pure" L.S.D. and the number of doses of

L.S.D. in the blotter paper sold by

Marshall.”

It is true that in setting up the range

of penalties, "the Committee has _ not

generally related. . . quantities to the

number of doses of the drug that might be

present in a given sample," (H.R. Rept. No.

= The match is only approximate;

Marshall’s drug trafficking was slightly

under the statutory level.

845, supra, at page 12), nor would the

committee have been required to do so.”

But to construe the "mixture or

substance" langueye as deliberately intended

to “warp the statutory design" (Slip Op. at

44; United States v. Marshall, supra, 908

F.2d at 1335), by punishing L.S.D. sales far

more severely than trafficking in heroin or

cocaine, there must appear on the record

Some indication that Congress viewed L.S.D.

as a greater problem than those other drugs.

There is no such indication in the

legislative history, and, indeed, all

indications are to the contrary.

It appears that L.S.D. was mentioned

only once during the six weeks of debate

concerning the Anti-Drug bill, when Senator

Harkin mentioned that L.S.D. use was holding

** Indeed, even prior to enac

, tment of

the "mixture or substance containing”

language, L.S.D. trafficking was punished by

weight, not by the dose. E.g., Fmr. 21]

U.S.C. 841(b)(1)(A)(iv) (Supp. III, 1982).

steady or declining; this comment was not

even occasioned by the "mixture or

substance" language. put was directed at a

wholly unrelated portion of the bill.” It

appears, further that only one other Senator

made reference to L.S.D. during the 1986

legislative years.** As has already been

discussed, there is no particular reason to

suppose that the "mixture or substance"

**> Harkin was commenting on a measure

to exhort the entertainment industry to

refrain from glamorizing drugs.

* Senator Paula Hawkins remarked on

several occasions that L.S.D. was

occasionally being used in conjunction with

other drugs. E.g., 132 Cong. Rec. S. 9522

(July 15, 1986) (reference to "space-basing"

of crack cocaine mixed with P.C.P. or

L.S.D.). Although Hawkins’ remarks were not

made during debate of the Anti-Drug bill,

itself, they may shed some light on the sort

of "mixtures" that Congress contemplated.

In any event, the total record does not

indicate that Hawkins believed L.S.D. to be

a particular problem. Twice, she commented

on the record that its use was declining,

--"substantially", [132 Cong. Rec. S 9049

(July 23, 1986)], and "markedly," [132 Cong.

Rec. S. 16203 (October 14, 1986)].

language was designed ‘to increase the

penalty for trafficking in any drug; clearly

no such intent appears regarding L.S.D.

(2)

The "Mixture or Substance" Language

Was Targeted at Cocaine Dealing, But

L.S.D. Does Not Resemble Cocaine

By contrast, in 1986 Congress was

obsessed with the cocaine and heroin trade,

which figured prominantly in the anti-drug

debate.”*’ The meaning of the phrase

"mixture or substance" with regard to heroin

3”

A sampling of the first day’s

House debate is instructive. (All citations

are to 132 Cong. Rec. H., Sept. 10, 1986).

Representative Gingrich mentioned cocaine

and heroin (6523); representative Dioguardi

mentioned crack (6526); representative

Biaggi mentioned cocaine, heroin, and

marijuana (6532); representative Trafficante

mentioned addicts and cocaine (6534);

representative Wyden mentioned cocaine and

heroin (6558).

Particularly ironic was the comment of

representative Jeffords, who stated that he

had been in the Vermont Attorney General’s

office during the drug crisis of the 1960s

and early 1970s. L.S.D., of course, was

rampant then, but not apparently now. "Here

we are again, many years later, faced with

a drug crisis, but the problem now is

cocaine, a much more serious drug." (6574).

and cocaine is, of course, clear. A

particularly pernicious aspect of the

cocaine and heroin traffic is that dealers

increase the volume of available contraband

by "cutting" the pure drug with filler.

The problem with interpolating a

reference to dealers who place L.S.D. on

paper or gelatin into a debate concerning

dealers who "cut" heroin or cocaine with

dilutant "filler" is that L.S.D. is not

"cut" in the same sense as are heroin or

cocaine.

In the first place, cocaine as

possessed by mid and high-end dealers is

roughly 90% pure. [E.g., United States v.

Kidder 869 F.2d 1328 (9 Cir., 1989) (cocaine

88-93% pure); United States v. Savinovich

845 F.2d 834 (9 Cir., 1988) (cocaine, 87%-

95% pure); United States v. Zavala 853 F.2d

1512 (9 Cir., 1988) (cocaine, 86% pure);

United States v. Holmes 438 F.2d 1175, 1176

(11 Cir., 1988) (cocaine, 87% pure). By

contrast, Marshall’s L.S.D.-plus-paper

aggregate was only about six tenths of one

percent pure.

Second, when cocaine and heroin are

"cut" to forms of less than 80% - 90% purity

at the "street" level, the dilution is

undertaken for a different purpose (and with

a different result) than is the mounting of

L.S.D. on carriers. The purpose of

“cutting” Cocaine and heroin is to increase

the absolute amount of adulterated drug in

” Nor does the result differ with

other drugs.

898 F.2d 28,

cert. den. 59 USLW 3223 (4 Cir., 1990)

involved 50%+ pure dilaudid; but careful

calculation shows that Bayerle could have

received virtually the same sentence for a

pure sample. In United States v. Baker 883

F.2d 13 (5 Cir., 1989), 11 oz. of 100% pure

methamphetamine was combined with a 1-23%

pure “mixture" to produce an aggregate

amount for sentencing purposes. However,

(unlike L.S.D.), the guidelines makes a

purity- adjustment for methamphetamine, so

Baker ended up receiving a lesser sentence

for the combined sample than she would have

received for the pure drug, alone.

circulation. Mounting L.S.D. on carrier

media merely makes fixed doses of the drug

more tractable for consumers. Again, the

basic difference is that cocaine and heroin

are sold by weight- of-mixture, but L.S.D.

is not. The “purity” of the dose relative

to the carrier medium is irrelevant to the

L.S.D. consumer.

Even if blotter paper can be crammed

into a procrustean analogy with the "cut"

used in cocaine transactions, the analogy

would not matter for three reasons.

First, there is no indication that

Congress, itself, meant to make the analogy.

The language of House Report 845 indicates

that Congress was clearly aware of the role

of "cut" in cocaine and heroin trafficking.

It is questionable whether Congress was

similarly aware of the role of carrier media

in L.S.D. cases. Even if it was thus aware,

it is by no means clear that anyone in

Congress analogized L.S.D. carriers to the

dilutants used to increase the street supply

of other drugs. And there is simply no

evidence that in using the phrase "mixture

or substance," Congress neant to refer to

carrier weight, or to base punishment in

terms of it.

Second, even if one could analogize

carrier media to "cut," the statutory

language, itself, remains ambiguous, for

reasons discussed in subdivision (B) of

this argument, i.e., that the words

"substance" and "mixture" are susceptible of

various interpretations. Analogy to "cut"

does not make the "dictionary" or scientific

meanings of "mixture" or "substance" any

Clearer. Statutes do not govern by analogy;

they govern by clear and unambiguous

command. No such command was made in the

statute here.

In sum, it does not appear that

Congress intended the phrase "mixture or

substance" to refer to carrier media in

L.S.D. cases.

(D)

Congress Did Not Wish to Undermine

The Determinate Sentencing Act By

Weighing Carrier Media in L.S.D Cases

A further indication that Congress did

not intend that carrier media be weighed in

calculating sentences in L.S.D. cases is

that to do so would frustrate the structure

of the Determinate Sentence Act; the

Guidelines promulgated thereunder; and the

work of the Sentencing Commission.

The Determinate Sentence Law was

promulgated for a number of reasons, an

extremely important one of which was to

insure uniformity in the sentencing process.

18 U.S.C. 3553(a)(6). The United States

Sentencing Commission was chartered, in

part, to implement this ain. 28 U.S.C.

991(b) (1)(B).

In establishing drug sentence guide-

lines, the Commission purported to have

adhered to this statutory mission. In its

comment on the drug-table, the Sentencing

Commission stated that "{o]ffenses under 21

U.S.C. §§ 841 and 940 receive identical

punishment based upon the quantity of the

controlled substance involved .... The base

offense levels in § 2Dl.1 [the Drug Table}

are either provided directly by the

Anti-Drug Abuse Act of 1986 or are

proportional to the levels established by

statute, and apply to all unlawful

trafficking. (emph. added). See, also,

Comment, U.S.S.G., at A(3), Dp. 1.23

"Congress sought proportionality in

sentencing through a system that imposes

appropriately different sentences for

crimiiial conduct of different severity."

See, also, 28 1).S.C. 991(b)(1)(B).

The determinate sentence law does not

require equal sentences for the respective

drugs, nor does it require that L.S.D.

Gealers be sentenced by the dose. But the

foregoing pronouncements indicate that some

degree of systemic uniformity was conten-

plated for the drug-sentence scheme as a

whole. At very least, it appears that

Congress and the Commission intended to

treat offenders who traffic in identical

amounts of a single drug comparably to one

another.

Carrier-weight-based sentencing warps

this entire scheme.

In the first place, as previously

shown, it punishes L.S.D. at an exaggerated

level relative to other drugs, at variance

with the proportionality language quoted

above.

Second, as has also been shown, basing

punishment on carrier-weight differentiates

between various L.S.D. dealers in a perverse

manner that is completely out of keeping

with the spirit of uniform determinate

sentencing.

Marshall has already illustrated the

discrepency in this particular case by the

hypothetical exchange of his paper with

Chapman’s. But the perversity plagues all

aspects of carrier-weight-based sentencing.

The range in weights amongst commonplace

L.S.D. "carriers" is from 0.00225 gm./dose

for gelatin, [United States v. McGeehan 824

F.2d 677, 680 8 Cir., 1987)], to 0.016

gm./dose for the blotter paper used in

United States v. Rose 881 F.2d 386, 387 (7

Cir., 1989). A dealer can receive a ten

year mandatory minimum sentence with a mere

600+ doses by using Rose’s blotter paper or

by using 4200+ doses with McGeehan’s

gelatin. (Marshall would have qualified for

the ten year minimum with 1060 doses of his

lightest blotter paper).”’’

” The problem is magnified

outlandishly when sugar cubes,--another

common carrier medium, [see, United States

Vv. Marshall, supra, 706 F.Supp. at

652],--are used. A sugar cube weighs 2.2

(continued... )

An even greater discrepancy resuits

when an identifiable amount of L.S.D. is

sold, but no contraband is recovered. Then,

and only then [United States v. Bishop,

supra, 894 F.2d at 987], sentences are

calculated in accordance with a table of

"Typical Weight Per Unit," U.S.S.G. 2Dl.1l.

L.S.D. weighs .05 mg. per dose according to

this table. Under this system, had

Marshall’s L.S.D. actually entered the

stream of commerce, and been consumed

(presumably the very thing the drug laws

were designed to prevent), Marshall would

have been "rewarded" with a sentence of no

more than seventy-eight months -- less than

_ 3*%(,..continued)

grams, and dealing 50 doses of L.S.D. on

sugar cubes, (i.e., 110 grams of sugar plus

L.S.D.), can fetch a twenty year sentence.

Tablet-cases, one of which appeared

before this Court as recently as 1974,

(Dorzynski v. United States, supra, 418 U.S.

424], also present a magnified instance of

the problem oof carrier-weight- based

sentencing.

a third of what he actually received.

This produces a crazy-quilt of

sentences even in "ordinary" L.S.D. cases in

which paper or gelatin is used as a carrier.

Sentences can vary by four or more sentence-

table-levels merely on the fortuity of what

carrier medium is selected by the dealer.

Indeed, the weight of the carrier medium

accounts for virtually the entire length of

any sentence in a typical L.S.D. case. As

Judge Posner sardonically remarked,

"Congress might as well have said: if there

is a carrier, weigh the carrier and forget

the L.S.D." (Slip Op. at 40; United States

vy. Marshall, supra, 908 F.2d at 1333).

It is unlikely that Congress would

scuttle the whole Determinate Sentence Law

with regard to L.S.D. a mere two years after

promulgating that law for all criminal

offenses. More likely, Congress never

intended that carrier-weight form the basis

for sentencing in L.S.D. cases.

Interim Conclusion

"Federal crimes coe “are solely

creatures of statute." Liparota v. United

States 471 U.S. 419, 424 (1985), citing

United States v. Hudson 7 Cranch 32 (1812).

Accordingly, when assessing the reach of a

federal criminal statute, we pay close heed

to language, legislative history, and

purpose in order strictly to determine the

scope of the conduct the enactment forbids.

.. "[{W)jhen choice has to be made between

two readings of what conduct Congress has

made a crime, it is appropriate, before we

choose the harsher alternative, to require

that Congress should have spoken in language

that is clear and definite." Williams v.

United States 458 U.S. 279, 290 [(further

citations omitted)]." Dowling v. United

States 473 U.S. 207, 213- 214 (1985).

Congress has not spoken clearly here. The

language of the statute is ambiguous; the

intent of Congress, delphic. Stanley

Marshall ought not to be serving a twenty

year sentence on the basis of so unclear an

expression of will.*

CARRIER WEIGHT BASED SENTENCING

VIOLATES THE DUE PROCESS CLAUSE

OF THE FIFTH AMENDMENT BY

DEPRIVING CRIMINAL DEFENDANTS

OF EQUAL PROTECTION OF THE LAWS

FOR IRRATIONAL REASONS

Introduction

Sentencing schemes which discriminate

irrationally between classes of offenders

violate the equal protection clause of the

Two other canons of statutory

construction militate in favor of Marshall’s

position. First, statutes should be

construed to avoid absurd results. Sheridan

487 U.S. 392, 402, fn. 7

(1988). Second, constructions which cast

doubt on Constitutionality should be

avoided. As Marshall demonstrates in the

following sections of his argument,

construction of the phrase "mixture or

substance containing" to include carrier

media raises significant Constitutional

problems.

Fourteenth Amendment. Eisenstadt v. Baird

405 U.S. 488 (1972); see, also, Marshall v.

United States 414 U.S. 417 (1974): McGinnis

v. Royster 410 U.S. 263 (1973)."

In Bolling v. Sharpe 347 U.S. 497

(1954), this Court recognized that the Due

Process clause of the Federal Constitution

operated to guarantee equal protection of

the laws in jurisdictions not directly

covered under the parallel Fo.rteenth

Amendment guarantee.

Even assuming, (for the sake of

argument), that Congress did intend to base

” This Court cannot, of course,

review the discretion exercised by

individual judges within the bounds of a

Constitutional sentencing statute. Williams

vy. Illinois 399 U.S. 235, 243 (1970);

Williams vy. New York 337 U.S. 241, 248-249

(1947). At issue here is not, however,

individual sentences, but an entire criminal

sentencing scheme. Cf., Mullaney v. Wilbur

421 U.S. 624, 696-697, 697, fn. 23 (1975),

citing United States v. Tucker 404 U.S. 443

(1972). This Court has held that "the

sentencing process, as well as the trial

itself, must satisfy the requirements of the

Due Process clause." Gardner v. Florida 430

U.S. 349, 358 (1977).

sentences in L.S.D. cases on the weight of

carrier media, such a sentencing scheme in

L.S.D. cases offends against the equal

_protection component of the Federal Due

Process clause.

As appears below, that scheme makes no

sense at all. "To base punishment on the

weight of the carrier medium makes about as

much sense as basing punishment on the

weight of the defendant.” (Slip Op. at 39;

United States v. Marshall, supra, 908 F.2d

at 1333, Posner, J., dissenting). For this

reason, the carrier-weight-based sentencing

scheme in L.S.D. cases cannot stand up to

even minimal rationality review.

(A)

Carrier-Weight-Based

Sentencing Irrationally

Distinguishes

Amongst Identical Defendants

Who Commit Identical Crimes

Discussion in section I of this brief

has illustrated the inequalities implicit in

carrier-weight- based sentencing. Sentences

rocket up or down the sentencing table

depending on a wholly adventitious factor.

Nothing in the crime of selling L.S...

warrants distinguishing amongst carrier

media to which the drug happens to be

applied. As previously explained, the type

of carrier onto which & dose of L.S.D is

mounted is irrelevant to the consumer of the

drug. “A person who sells L.S.D. on blotter

paper is not a worse criminal than one who

sells the same number of doses on gelatin."

(Slip Op. at 39-40; United States _v.

Marshall, supra, 908 F.2d at 1333, Posner,

J., dissenting).* Indeed, a dealer is

unlikely even to be aware of the weight of

the carrier. Petitioner, who sold an

aggregate weight of four ounces of drug-

* Nor is the dealer who manages to

flush away his drugs before the D.E.A.

arrives, and thus reap the benefit of

"Typical Weight Per Dose" sentencing (United

States v. Bishop, supra, 894 F.2d at 987),

a better person.

plus-carrier, probably would not have

noticed had his carrier been marginally

lighter or heavier, yet he would have

received a lesser sentence had his

aggreggate amount of paper been less than

half an ounce lighter.

But under the sentencing’ scheme

championed here by the Government, persons

who traffic in identical amounts of L.S.D.

receive radically different sentences based

entirely on the varying weights of the media

on which those doses happen to be mounted.

(B)

These Sentencing Inequalities

Are Not Rationally Related

To The Purposes of the Anti-

Drug Statutes

It has thus been established that

carrier-weight-based sentencing is premised

on a fortuitous distinction. The next

question for analysis is whether this

"distinction ... [has] some relevance to the

purpose for which the classification is

made," (Baxtrom v. Herald 383 U.S 107, lll

(1966); see, Eisenstadt v. Baird, supra,

405 U.S. 438], without which it must be held

to violate the Due Process Clause.

AS appears below, not only does

carrier-weight-based sentencing fail to

further the aim of the anti-drug legislation

of which it was a part, but it in fact

frustrates such laws.

The aim of the Anti-Drug Act of 1986

was to punish "kingpins," especially those

dealing heroin and cocaine, and, to a lesser

extent, of punishing "managers of retail

traffic" distributing "substantial street

quantities" of illicit drugs. The goal of

the classifications, according to the House

Report, (H.R. No. 845, supra, at ll}, was

to allocate scarce law enforcement resources

for the war on drugs.

To the degree that limited enforcement

resources are wasted pursuing mid-tier

L.S.D. dealers, the statutory aim is

frustrated.

Should carrier-weight-based sentencing

prevail, those few L.S.D. dealers who

continue to market their drugs on heavy

paper carriers will remain tempting targets

for law enforcement. They are, after all,

notoriously easy “marks," (naive, trusting

"hippies"), and carrier-weight-based

sentencing distorts the magnitude of an

L.S.D. “bust” to reflect favorably on the

prowess of the arresting officer.

Resources will thus be misdirected towards

apprehending mid-level dealers while

larger-scale dealers in more dangerous

compounds may be neglected.

Most L.S.D. dealers wil , of course,

respond to carrier-weight-based sentencing

by changing their marketing technique. But

these changes will not be of benefit to Law

Enforcement.

For example, sophisticated L.S.D.

dealers might discover that they can dot

their L.S.D. on paper with a pipette, and

claim that the mixture containing L.S.D. is

limited to the area covered by the dot. It

is hard to imagine how encouragement of such

techniques will seriously diminish

trafficking in L.S.D.”

Even if “alternative technologies" such

as the use of pipettes cannot be brought

into the L.S.D. trade, dealers can resort to

other tricks. They can simply ship their

ware in smaller increments. Or they can

cluster L.S.D.-labs closer to the sites at

which the drug is applied to paper, thus

making for smaller "production runs." Or

they can find and use lighter carrier media,

(gelatin is already available). All of

these eventualities will only make shipments

of L.S.D. smaller and harder to detect, and

1:8 The imprecision of pipette

application might, moreover, lead to

accidental overdoses.

will only frustrate law enforcement efforts.

Although Congress was probably happy

that L.S.D. use was declining, there is

nothing in the legislative history which

Suggests that Congress wanted to make

further efforts at detection and eradication

of the traffic more difficult. Carrier-

weight-based sentencing does nothing to

discourage the appetite of individual

customers for the drug, nor does it make

manufacture of the drug (now a bargain at 35

cents a dose [Slip Op. at 42, United States

V. Marshall, supra, 908 F.2d. at 1334,

Posner, J. dissenting]) more difficult. It

only poses some readily soluble logistical

hurdles in the distribution chain. Carrier-

weight-based sentencing actually frustrates

efforts to curtail manufacture, distri-

bution, and consumption of the drug.

(C)

No Rational Basis Has Been,

Or Can Be, Advanced For

Carrier-Weight-Based Sentencing

Of course, Congress need not set out

the reasoning underlying its legislative

choices, and when a rational result can be

inferred, even a statute enacted in

ignorance will stand up to Due Process

scrutiny. United States Railway Retirement

Board v. Fritz 449 U.S. 166, 174 (1981).

But when it is clear that no rational

reasoning can be advanced, the statute must

be deemed to fail the minimum requirements

of "rationality" analysis.

At oral argument on appeal, no rational

reason for the statute was advanced by the

Government. (Slip Op. at 33, fn. 7; United

States v. Marshall, supra, 908 F.2d. at

1330, Cummings, J., dissenting). Until the

Opinion of the Seventh Circuit was filed,

the closest the Government and other Courts

came to stating a rational basis for the

interpretation was some sort of gut

preference for literal readings of statutes.

While the wording of a statute is of first

and final importance, literalism in

statutory construction is neither a

constitutionally compelled doctrine nor a

rule of public policy. Watt v. Alaska 451

U.S. 259, 266 (1981).**

Apart from a preference for literalisn,

Marshall is aware of only three purported

justifications for construing the "mixture

or substance" language in section 841l(b) to

include carrier media. These rationales,

advanced by the Seventh Circuit in its

opinion below, are considered in sequence.

First, it has been suggested that

Congress may have chosen to penalize blotter

paper sales because they have contributed to

” To the contrary, "(tjhe

interpretation of the laws is the proper and

peculiar provence of the courts." Hamilton,

et. al., Federalist (Bourne Ed., 1901) at

10l.

the renewed success of L.S.D. (Slip Op. at

21; United States v. Marshall, supra, 908

F.2d at 1325). This assertion simply flies

in the face of the legislative history of

the act. The only "findings" in the whole

legislative history with regard to L.S.D.

are (1) that it has not achieved renewed

success; and (2) that, on occasion, it is

consumed not with blotter paper but with

other drugs. One cannot torture out of

this a legislative intent to root-out a

blotter paper problem which no one had

theretofore detected, and the actual decline

in L.S.D. use cited by Senator Harkin would

have made such intent irrational.

Second, it has been suggested that

Since most L.S.D. transactions occur on

blotter paper, it is not unfair to weigh

5%. (Slip Op. at 21-22; United States vy,

Marshall, supra, 908 F.2d at 1324). But

transactions on gelatin are common also, as

are transactions in pure L.S.D.. That the

plurality of transactions may be on blotter

paper,--there is no actual support for this

proposition in the record,--merely begs the

question and does not answer it. In any

event, the "fairness" argument proves too

much. Most cocaine transactions are in

gGlassiene envelopes, yet these are not

weighed; most drugs are shipped by airplane,

yet airplanes are not weighed either.

Finally, it has been suggested that it

is too difficult to isolate and weigh L.S.D.

accurately, so it is fair to weigh blotter

paper. (Slip Op. at 22; United States v.

Marshall. supra, 908 F.2d at 1325). At

outset, this assertion is untrue; in every

published L.S.D. case including this one,

the pure L.S.D. has been weighed, and in the

instant case it was even separated from its

isomers. By contrast, the Government

chemist stated that he weighed not only

blotter paper but contaminants on it as

well,--hardly a model of scientific

precision. In any event, "[tjhe

constitutional imperatives of the Equal

Protection Clause cannot be satisfied by

mere conjecture as to administrative incon-

venience." Frazier v. Manson 703 F.2d 30,

39 (2 Cir., 1983).

In sum, neither Congress nor any one

else has thus far proposed a rational reason

for basing sentencing in L.S.D. cases on the

weight of the carrier.

(D)

For the Foregoing Reasons,

the Carrier-Weight-Based

Sentencing Scheme Violates

the Equal Protection Component

of the Due Process Clause

Congress need not punish. similar

conduct identically. United States v.

Batchelder 442 U.S. 114 (1979). But "[t])he

Constitution requires that Congress treat

Similarly situated persons’ similarly,"

(Rostker v. Goldberg 453 U.S. 57, 79

(1981)], and “in the administration of

criminal justice no different or higher

punishment should be imposed upon one than

such is prescribed to all for like offenses.

(sic)." Truax v. Corrigan 257 8.8. 388. Dee

(1921). .

Thus, while it is Constitutionally

permissible to allow prosecutors and courts

to select between alternative punishments

for like offenses, it is impermissible to

set out a single sentencing scheme which

imposes mandatory increases or decreases in

punishment on the basis of wholly adventi-

tious factors. Should such irrational

discrimination occur, prosecutions under the

statute are assailable as a violation of

Equal Protection. United States v.

Batchelder, supra. 442 U.S. at 124-125,

126, fn. 9.

No rational reason which has been or

can be advanced in support of a sentencing

scheme based on the adventitious weight of

the carrier media in L.S.D. cases.

Assuming, for the sake of argument, that

Congress gid intend the statute to function

as it has functioned here, Congress has

acted unconstitutionally. The statute must

be overturned as violative of the Due

Process clause of the Federal Constitution.

III

THE CARRIER -WEIGHT-BASED

SCHEME VIOLATES THE DUE PROCESS

CLAUSE FOR PROCEDURAL REASONS, AS WELL

The Due Process clause has a procedural

as well as a = substantive component.

Application of carrier-weight-based

sentencing to Marshall also offends against

this component of the Due Process clause.

Although Congress may establish

different punishments for identical conduct,

(United States v, Batchelder, supra, 442

U.S. 114], it can only do so only by way of

clearly written statutes which give notice

to the accused of the range of punishments.

"[Vjague sentencing provisions may pose

constitutional questions if they do not

state with sufficient Clarity the

consequences of violating a given criminal

statute." United States v, Batchelder,

supra, 442 U.S. at 123.

Here, the "mixture or substance"

language gave no notice to _ potential

offenders as to how they might be penalized.

Marshall committed his crime in

mid-1988, when the legislation in question

was quite new and had not been given a

definitive judicial construction; it will

not be definitively construed until a

decision is announced in the _ instant

case. **

** Marshall’s case, United States v.

706 F.Supp. 650, was only

the second judicial opinion to construe

the new "mixture or substance" language,

and the previous case, United States vy.

Bishop 704 F.Supp. 910 (N.D. Iowa, Feb. 7,

1989), was decided only three days before

Marshall’s trial was held. United States

824 F.2d 677 had

addressed the issue, but only in dicta.

Concededly, a criminal defendant

violates an unconstrued statute at his

peril. But persons in Marshall’s position

received no notice from the _ statutory

language as to how the arbitrary fact that

he mounted his L.S.D. on blotter paper

instead of on gelatin, for example, would

amount to a near-doubling of his

sentence.** He was thus deprived of notice

of the consequences of his criminal act, in

violation of the Due Process clause of the

Federal Constitution.

CARRIER-WEIGHT-BASED SENTENCING

DEPRIVES DEFENDANTS OF A FUNDAMENTAL

RIGHT, AND SUCH DEPRIVATION MUST BE

ASSESSED UNDER STRICT

CONSTITUTIONAL SCRUTINY

Petitioner Chapman argues that

Sentence Law, with its mandatory minimum

sentences and its precise sentencing

guidelines, provided a context of further

subjective uncertainty for criminal

defendants.

carrier-weight-based sentencing amounts to

an arbitrary deprivation of liberty, and

that the deprivation must be scrutinized

under the strict standards by which this

Court examines claimed impairments of

fundamental rights.

Chapman has briefed this issue so

extensively that Marshall need not add much

to his presentation of the issue.

Inequalities in economic or social

welfare regulation are permissible if some

rational basis for the inequality has been

or can be articulated. United States

Railroad Retirement Board v. Fritz, supra.

449 U.S. at 174, fn. 10; Dandridge v.

Williams 397 U.S. 471 (1970). Stricter

scrutiny has traditionally been afforded for

questions involving rights named in or

implied from the Constitution. See,

discussion in San Antonio Independent

Schoo] District v. Rodriguez 411 U.S. 1,

33-34 (1973).

Plainly, “liberty” is a fundamental

interest guaranteed by the Due Process

clause. Imposition of a sentence of

imprisonment impinges on this interest.*’

Despite this, in Marshall v. United

States 414 U.S. 417 (1974), this Court

declined to extend strict scrutiny analysis

to unequal allocation of benefits to Federal

Prisoners under a "rationality" standard.

Similarly, in McGinnis v. Royster 410 U.S.

263 (1972), this Court reviewed unequal

allocation of sentence-reducing “good-time"

benefits under a "rationality" standard.

These cases do not, however, stand for

the proposition that inequalities in

sentencing should be reviewed under a "mere

rationality" test. Although both of these

cases involved criminal sentencing, they

It also involves a restriction,

over time, of the right to travel from

place-to-place which is, itself,

fundamental. Shapiro v. Thompson 394 U.S.

618 (1969).

involved denial of benefits, rather than an

unequal allocation of sentencing

impairments. Benefits are not the same as

impairments, so these cases do not directly

address the standard -by which unequal

allocation of punishment should be measured.

Several of this Court’s cases suggest

that unequal allocation of detriment might

be reviewed under a more exacting standard.

In Skinner v. Oklahoma 316 U.S. 535 (1941),

this Court used "strict scrutiny" analysis

to strike down a forced vasectomy statute

which discriminated arbitrarily amongst

prisoners. This Court justified its

analysis on grounds that childbearing was a

fundamental right, notwithstanding its

refusal to recognize such a right a few

years earlier in Buck v. Bell 274 U.S. 200

(1927). Similarly, in Williams v. Illinois

399 U.S. 235 (1970), this Court invalidated

a sentencing-discrimination based on wealth

notwithstanding that wealth is not, itself,

a suspect Classification under the

Constitution, [San Antonio Independent

School District v. Rodriguez, supra, 411

U.S. 1].

Of course, a decision by the legis-

lature to criminalize given misconduct will

provide compelling enough reason to warrant

a restriction on liberty, even if severe.

But "(t)jhe safeguards of due process are not

rendered unavailable simply because a

determination may already have been reached

that would stigmatize the defendant and that

might lead to a significant impairment of

personal liberty." Mullaney v. Wilbur 421

U.S. 684, 698 (1975). Wilbur invalidated

a Maine procedural hurdle which tended to

favor the state in proving that a homicide

was murder as opposed to manslaughter, thus

increasing the potential sentence faced by

the accused. While the standard of review

in Wilbur was not spelled-out, it would

appear that this Court strictly considered

the impairment claimed by Wilbur as against

any justification for the procedure in

state law.

Sentencing is as “critical [a] stage,"

[Mempa _v. Rhay 389 U.S. 128, 134 (1967)],

of a criminal case as is the trial, itself;

in the instant case, the entire conflict of

the parties was over the length of

Marshall’s sentence. In resolving this

conflict, Marshall was entitled to receive

strict judicial scrutiny of a scheme which

increased the length of his sentence from

five to twenty years as a result of a

fortuity.

Marshall believes he can prevail in

this case even under a "mere rationality"

standard. But if for some reason he

cannot, he respectfully requests that this

Court review strictly a scheme which has

taken so large a portion of his life for so

gossamer a reason.

BASING SENTENCE LENGTH MOSTLY ON

CONDUCT UNRELATED TO ACTUAL CULPABILITY

VIOLATES THE PROHIBITION AGAINST

CRUEL AND UNUSUAL PUNISHMENTS

(A)

This Court Should Consider

This Contention Even Though

Chapman Did Not Pose It

This Court understandably "dis-

approve([s] of the practice of smuggling

additional questions into a case after we

grant certiorari." Irvine vy. California

347 U.S. 128, 129 (1954).

However, Marshall raised an Eighth

Amendment claim below, and again in his

petition for a writ of certiorari.** See,

** See, Appellant’s Opening Brief at

19: "As we previously pointed out, had

defendant been sentenced on the basis of the

weight of the drug, he would have received

a sentence of 41 to 51 months. However,

defendants sentence is roughly two hundred

months more because of the inclusion of the

weight of the paper. This 230% increase is

totally disproportionate to the offense

committed and in clear violation of

(continued...)

e.g., Peters v. Kiff 407 U.S. 493, 495

(1972). The certiorari petition is still

pending as a result of unusual procedural

accidents in this case.

Marshall believes that his Eighth

Amendment claim has potential merit and

might be useful to this Court in

consideration of this case. The Eighth

Amendment analysis tends to merge with Due

Process claims already advanced.

With deference to the traditions of

this Court, Marshall respectfully requests

that this Court, should it choose to do so,

consider the below-stated clain.

“**(...continued)

defendant’s Eighth Amendment rights. There

is simply no penalogical justification for

such a sentence ...." The claim was briefed

by the Government in its brief at pages

14-16. Appellant replied at page 6 of his

reply brief. The Court considered the

Claim, albeit cursorily. (Slip Op. at 12;

United States v. Marshall. supra, 908 F.2d

at 13 ). Marshall raised it again in his

certiorari petition at pages 51-58.

(B)

Basing Sentence Length on Conduct

Not Proportionate

To the Gravity of an Offense

Violates the Prohibition Against

Cruel and Unusual Punishments

The carrier-weight-based sentencing

scheme also fails under the Eighth

Amendment to the Constitution.

The Seventh Circuit pointed out that

longer sentences for lesser offenses have

been held not to violate the Eighth

Amendment. Hutto v. Davis 414 U.S. 370

(1982). For that matter, a twenty year

sentence for L.S.D. dealing,--albeit in

excess of the 300,090 dose range,--has been

upheld against an Eighth Amendment

challenge. United States v. Wylie 625 F.2d

1371 (9 Cir., 1980).

But the absolute length of a sentence

is but one factor to be considered in Eighth

Amendment jurisprudence. The true test is

whether a sentence, however long, is

"proportionate" to the crime. Solem v. Helm

463 U.S. 277, 290-292 (1983). Helm went on

to hold that ingredients of proportionality

include the harm suffered by the victim and

the culpability of the accused. Solem v.

Helm, Supra, 463 U.S. at 292.

Here, Congress determined that cocaine

and heroin dealers trafficking at Marsha'!l’s

level ought generally to receive sentences

of far less duration than that received by

Marshall. This sheer disparity is strong

evidence of disproportionality, but it is

not the only or even the most telling

factor.

Perhaps more significant is that

punishment here was increased on the basis

of an adventitious factor which did not

aggravate either the crime or Marshall’s

culpability in committing it. This is a

significant contaminant of the sentencing

process, which, when extreme, renders a

sentence disproportionate within the meaning

of the Eighth Amendment.

Here, the adventitious non-criminal

factor makes up almost the whole length of

the sentence. The punishment is excessive

indeed.

Use by Marshall of blotter paper was so

unrelated to the gravity of the offense as

to provide an impermissible basis for

increased punishment.‘ Although his

L.S.D. was sold with blotter paper, the

blotter paper was so unrelated to the actual

harm implicit in drug sales that its

dominant status as a sentencing-determinate

is unconscionable. No one who purchased

Marshall’s L.S.D. was harmed to a greater

** Under 21 U.S.C. 88l(a)(3), material

possessed as a container for controlled

substances is subject to civil] forfeiture,

but the statute makes no provision for

imprisonment of persons possessing blotter

paper.

After Marshall’s' trial, Congress

enacted a civil forfeiture provision more

focused on carrier media. 21 U.S.C.

88l(a)(9). Again, however, this statute

does not provide for increased punishment.

degree because the drug was mounted on paper

instead of a gel, or because the paper he

used weighed twice as much as Chapman’s.*

Marshall’s contention, although novel,

is bolstered by the holding in United States

vy. Busher 817 F.2d 1409 (9 Cir., 1987). At

issue there was a provision of the anti-

racketeering statute, (R.I.C.0O.), 18 U.S.C.

1963(a), which provided for civil forfeiture

of all property involved in a tainted

enterprise. Busher, whose enterprise was

"essentially legitimate, [and who committed]

--- relatively minor R.I.C.0O. violations,"

(United States v. Busher, supra, 817 F.2d at

1415], contended that forfeiture of his

entire interest was disproportionate to his

s° ~6hdIn this, Marshall’s case must be

distinguished from those in which punishment

is permissibly increased on the basis of

factors that, while collateral, are not

adventitious. For example, had Marshall

diluted his L.S.D. to increase its volume or

had he trafficked in a_- schoolyard,

punishment might legitimately be increased.

But he did nothing like this to warrant

greater punishment.

offense, and the Court of Appeals agreed.

It remanded the case for a determination of

what portion of Busher’s enterprise should

be subject to forfeiture.”

Over one hundred years prior to Busher,

a similar result was reached in United

States vy. Certain Piece of Land 25 Fed.

Cses. 366 (D.Cal., 1870). There, pursuant

to a forfeiture statute, the Government

sought to confiscate an entire farm, upon a

corner of which had been erected an illegal

distillery. The Court held that "literal

application of [the statutory] language

would not only be harsh but unequal,--for it

would make the amount of the forfeiture

** Marshall is aware that in United

States v. Tax Lot 1500, T.P. 38 So., Range

2.E. 861 F.2d 232 (9 Cir., 1989), the Court

of Appeals differentiated between

"disproportionate" civil forfeitures and

disproportionate criminal forfeitures. The

distinction does not matter here. As did

Busher, Marshall is challenging a punishment

imposed as part of an “in personam"

proceeding against him. See, United States

v. Busher, supra, 817 F.2d at 1417.

depend not on the value of the distillery,

--- but upon the accidental circumstances

that the illicit distiller happened to own

a large tract, on the corner of which a

still ... was erected."

In Robinson v. California 370 U.S. 660

(1962), this Court held that punishment

cannot constitutionally be inflicted on the

basis of "status" violations. In Weems v.

United States 217 U.S. 349 (1909), this

Court condemned a series of accessory-

punishments including lifelong surveillance

and “civil interdiction" for the crime of

making false entries in a financial record.

Apart from being barbarous, the punishment

was disproportionate to the gravity of the

offense and to the state-of-mind underlying

its commission. Neither Weems nor Robinson

directly hold that punishment based on

adventitious factors is violative of the

Eighth Amendment, but both suggest it.

Here, seventy-five percent of

Marshall’s punishment was based on the

wholly adventitious factor of the weight of

his paper. His sentence is clearly dispro-

portionate under the Eighth Amendment to the

Constitution.

CONCLUSION

The Court of Appeals condoned, somewhat

glibly, that prosecutors had "the power to

excuse the big cheeses while landing on the

small fry with hobnail boots." (Slip Op. at

14; United States vy, Marshall, supra, 908

F.2d at 1321). Such cynicism would be

intolerable under a rational interpretation

of the comprehensive anti-drug statutes or

under ae fully-developed Constitutional

jurisprudence. Marshall is a "small fry"

who got a wiidly disproportionate sentence

on the basis of an irrational adventitious

factor.

All of the judges on the Seventh

Circuit Court of Appeal appear to have

viewed the carrier-weight-based sentencing

scheme as "odd," (Slip Op. at 3; United

States v. Marshall, supra, 908 F.2d at

1315), and "harsh." (Slip Op. at 24;

United States v. Marshall, supra, 908 F.2d

at 1325). Judge Posner characterized the

sentences at issue here as "exceptionally

harsh by the standards of the modern Western

world, dictated by an accidental, unintended

scheme of punishment. . .implied from the

words (taken one by one) of the relevant

enactments." (Slip Op. at 43; United

States v. Marshall, supra, 908 F.2d at

1335).

But the words of the enactment are not

plain. They have multiple referents, and

different Courts have construed them

differently. In any event, "[{o]ne of the

Surest indexes of a mature and developed

jurisprudence is not to make a fortress out

of the dictionary; but to remember that

statutes always have some purpose or object

to accomplish whose sympathetic and

imaginative discovery is the surest guide

to their meaning." Cabell] _ v. Markham 148

F.24 737, 739 (2 Cir., 1945, L. Hand,

Judge), aff’d 326 U.S. 404.

It is clear that Congress did not mean

to punish L.S.D. dealers on the fortuity of

the weight of the carrier media on which

they mount the drug. If Congress gid mean

to do so, they have run afoul of the Fifth

and Eighth Amendments to the Constitution.

This case is about a few poorly chosen

words which have cost Marshall fifteen years

of his life. This is a great injustice

which this Court should rectify.

The judgment of the Seventh Circuit

should be reversed.

DATED: January 22, 1991

Respectfully Submitted,

DONALD THOMAS BERGERSON

Attorney for Respondent

Stanley Marshall

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