# Respondents Brief — Chapman v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0125%3A06

## Record

- **Collection:** Supreme Court brief
- **Document type:** Respondents Brief
- **Published:** January 1, 1991
- **Citation:** 500 U.S. 453

## Text

re ~~ —— rem i, a 2 ee

Saeeneee~-==- oe @2 Ge Ge & ED a am ow aw Gs = ow

sent

Pa

mE ‘ourrED STATES OF AMERICA,
Respondent (s)

; > ee wh tigers Ct eed nme ere tne mote o~ ~- —=+*«
we mere ee , ow 0b an en eras ke ewes an in wanes ee

oe. Certiorari to the
ites Court of Appeals
Por the Seventh Circuit

— “ene a ee ee ae a ne eee i =F
dcciSankeebeeeehthad ches Gp anana: Goch ene eres wee

BRIEF ON THE MERITS OF RESPONDENT,
STANLEY MARSHALL,

e Support of Petitioners, Urging Reversal

—_ ~~ a“

- tap abe mre ee wee — be Fo: 20 Sen “e+e * teeta me & ~

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?

i

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.

ii

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

21

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

(C) The Legislative History Inequalities Are Not

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 . ®@ - 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

17

McGeehan, supra, 824 F.2d at 680.
26

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.

27

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.

28

(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

29

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

30

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.

31

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... )

32

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).

33

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).

34

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

35

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,

36

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.

37

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

38

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

39

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.

40

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.

41

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.

42

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

43

"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

44

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

45

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

47

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...)

48

‘
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.

49

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

50

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.

51

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).

52

a

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)].

53

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).

54

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

55

(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.

56

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

57

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

58

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-

59

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.

60

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.

61

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... )

62

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.

63

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.

64

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

65

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.*
II

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

40

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.

66

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).

67

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

68

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.

69

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

70

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

71

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.

72

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.

73

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.

74

(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

75

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.

76

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

77

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

78

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

79

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.

80

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.

81

"[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.

82

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.

IV
CARRIER-WEIGHT-BASED SENTENCING
DEPRIVES DEFENDANTS OF A FUNDAMENTAL
RIGHT, AND SUCH DEPRIVATION MUST BE

ASSESSED UNDER STRICT
CONSTITUTIONAL SCRUTINY

Petitioner Chapman argues that

‘© The "newness" of the Determinate
Sentence Law, with its mandatory minimum
sentences and its precise sentencing
guidelines, provided a context of further
subjective uncertainty for criminal
defendants.

83

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).

84

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

47

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).

85

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,

86

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

87

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.

V
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...)

89

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.

90

(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

91

"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

92

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.

93

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.

94

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.

95

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

96

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

97

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

98

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

99

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0125%3A06. Public record. Not legal advice.