Amicus Curiae Brief — Chapman v. United States

7 Supreme Court

v i

No. 90-5744 JAN

JOSEPH F. °

IN THE SUPREME COURT OF THE UNIVED- STATES

October Term, 1990

RICHARD L. CHAPMAN, JOHN M.

SCHOENECKER, and PATRICK BRUMM,

Petitioners,

Vv.

UNITED STATES OF AMERICA

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF OF THE DRUG POLICY FOUNDATION

AND THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICI CURIAE

SUGGESTING REVERSAL

Kevin Zeese Alan Ellis

(Counsel of Record) NACDL

Drug Policy Foundation 1110 Vermont Ave., NW

4801 Massachusetts Ave., NW Washington, DC 20005

Washington, DC 20016 (202) 872-8688

(202) 895-1634

Sharon Beckman Carol Steiker

Silverglate & Good Public Defender Service

89 Broad Street of the Dist. of Columbia

Boston, MA 02110 451 Indiana Ave... NW

(617) 542-6663 Washington, DC 20001

(202) 628-1200

Counsel for Amici Curiae

INTEREST OF AMICI CURIAE

The Drug Policy Foundation is a privately funded, tax-exempt,

nonprofit organization concerned with the development of rational

solutions to current drug problems. Its national membership

includes current and former law enforcement officials, physicians,

scientists, drug abuse experts, leaders of the business community,

and distinguished scholars active in all aspects of drug policy.

By sponsoring publications, conferences, and public education

programs, the Drug Policy Foundation provides an interdisciplinary

forum for the development of sound drug policy and practice. The

Foundation also participates in state and federal court proceedings

to encourage rational interpretation of state and federal drug laws.

At issue in this case are the meaning and rationality of the

penalty structure Congress has enacted for federal drug offenses.

The Drug Policy Foundation offers its assistance to the Court

because it believes that basing the penalties for drug offenses on a

factor as arbitrary as the weight of the carrier vehicle would serve

no rational purpose and would undermine the goals of

proportionality and consistency in sentencing.

The National Association of Criminal Defense Lawycrs

(NACDL), including its statute affiliates, is a nationwide

Organization comprised of over 25,000 attorneys who are actively

engaged in defending persons charged with criminal offenses and

who are concerned with the proper administration of the criminal

Justice system.

NACDL was founded in 1958 to preserve the adversary system

of justice; to maintain and foster independent and able criminal

detense lawyers; and to ensure justice and due process to persons

accused of crime. It pursues these goals through a variety of

educational and public service activities, including national! training

programs, publication, committee activities, legislative action and by

appearing as amicus Curiae in cases presenting issues of significance

il

to the American criminal justice system. Significant cases in which

NACDL has recently filed briefs amicus curiae in this Court include

Caplin & Drysdale, Chartered v. United States, 109 S. Ct. 2646

(1989): United States v. Monsanto, 109 S. Ct. 2657 (1989); and

Mistretta v. United States, 109 S. Ct. 647 (1989).

The case before the Court raises questions about the proper

interpretation of a mandatory sentencing scheme and implicates the

constitutional right to fairness in sentencing. The Amicus Curiae

Committee of the NACDL has discussed this case and decided that

the issues it presents are of such importance to the administration

of the criminal justice system that NACDL should take a position

and offer its assistance to the Court.

This brief is filed with the written consent of all parties.

TABLE OF CONTENTS

SUMMARY OF ARGUMENT

ARGUMENT ,

I. CONGRESS DID NOT INTEND THE

PHRASE "MIXTURE OR SUBSTANCE

CONTAINING A DETECTIBLE AMOUNT OF"

LSD TO INCLUDE CARRIERS

A. The language and structure of the

Statutory sentencing scheme

establish that Congress did not

intend punishment for trafficking

in controlled substances to depend

upon the weight of carriers or

similar paraphernalia

B. The legislative history of the Anti-Drug

Abuse Act of 1986 supports the conclusion that

Congress did not intend sentences for drug

traffickers to depend on the weight of carrier media

Il. WELL-ESTABLISHED PRINCIPLES OF

STATUTORY CONSTRUCTION MANDATE

THE ADOPTION OF AMICI’S CONSTRUCTION

OF THE STATUTE AND GUIDELINES

A. The rule of avoiding constitutional

conflicts mandates the adoption of

amici’s construction of the

Statute and Guidelines

B. The rule of lenity mandates the

adoption of amici’s construction

of the statute and Guidelines

to

tJ

tl

13

16

17

19

iV

C. The rule cf avoiding absurd results

mandates the adoption of amici’s

construction of the statute and Guidelines

Ill. THE GOVERNMENT'S INTERPRETATION OF

THE STATUTE AND GUIDELINES WOULD

RENDER THEM UNCONSTITUTIONAL

CONCLUSION

30

TABLE OF AUTHORITIES

CASES

Bearden v. Georgia, 461 U.S. 660 (1983)

Bifulco v. United States, 447 U.S. 381 (1980)

Bolling v. Sharpe, 347 U.S. 497 (1954)

Broadrick v. Oklahoma, 413 U.S. 601 (1973)

Church of the Holy Trinity v. United States,

143 U.S. 457 (1892)

Cleburne v. Cleburne Living Center, Inc..

473 U.S. 432 (1985)

Crandon v. United States, 110 S. Ct. 997 (1990)

Crowell v. Benson, 285 U.S. 22 (1932)

DeBartolo Corp. v. Florida Gulf Coast

Building and Construction Trades

Council, 485 U.S. 568 (1988)

Department of Agriculture v. Moreno, 413 U.S. 528 (1973)

Department of Agriculture v. Murry, 413 U.S. 508 (1973)

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)

Frisby v. Schultz, 487 U.S. 474 (1988)

Furman v. Georgia, 408 U.S. 249 (1972)

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982)

17, 18

23, 24

24

17

17

tl

eS

tl

to

vi

Hooper v. Bernalillo, 472 U.S. 612 (1985)

Hughey v. United States, 110 S. Ct. 1979 (1990)

Jiminez.v. Weinberger, 417 U.S. 628 (1974)

Ladner v. United States, 358 U.S. 169 (1958)

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)

Machinists v. Street, 367 U.S. 740 (1961)

Moskal v. United States, 111 S. Ct. 461 (1990)

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979)

Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986)

Plyler v. Doe, 457 U.S. 202 (1982)

Public Citizen v. Department of Justice,

109 S. Ct. 2558 (1989)

Reed v. Reed, 404 U.S. 71 (1971)

Scales v. United States, 367 U.S. 203 (1961)

Schneider v. Smith, 390 U.S. 17 (1968)

Schweiker v. Wilson, 450 U.S. 221 (1981)

Simpson v. United States, 435 U.S. 6 (1978)

Sorrells v. United States, 287 U.S. 435 (1932)

St. Martin Evangelical Lutheran Church v. South Dakota,

45i U.S. 772 (1981)

19

vil

Thomas v. United States, 239 F.2d 7 (10th Cir. 1956)

United States v. American Trucking Associations, Inc.,

310 U.S. 534 (1940)

United States v. Bishop, 894 F.2d 981 (8th Cir. 1990)

United States v. Daly, 883 F.2d 131 (4th Cir. 1989),

cert. denied, 110 S. Ct. 2622 (1990)

United States v. Elrod, 898 F.2d 60 (6th Cir. 1990)

United States v. Hanlin, No. 90-00006-01

(W.D. Pa), appeal docketed, No. 90-3689 (3rd Cir. 1990)

United States v. Healy, 729 F. Supp. 140 (D.D.C. 1990)

United States v. Kirby, 7 Wall. 482 (1869)

United States v. Kozminski, 487 U.S. 931 (1988)

United States v. Larsen, 904 F.2d 562 (10th Cir. 1990),

petition for cert.pending, No. 90-5509

United States v. Lowden, No. 89-00031-1 (D.Ma. 1989)

appeal docketed, No. 90-1605 (1st Cir. 1990)

United States v. Luster, 896 F.2d 1122 (9th Cir. 1990)

United States v. Marshall, 908 F.2d 1312 (7th Cir. 1990)

United States v. Marshall, 706 F.Supp. 650 (N.D. Ill. 1989),

affd. 906 F.2d 1312 (7th Cir. 1990)

United States v. McGeehan, 824 F.2d 677

(8th Cir. 1987)

1]

1]

11

26

4, 10

passim

passim

8, 27

viii ix

oid -Macias, No. 89-0932-T (S.D. Ca.), Stimulants, Depressants, Inhalants,

Sn ee 1058S ee eee (1h Cir. 1990) 7 Hallucinogens & Marijuana--Including

a a a " - «- ‘ .

Caffeine, Nicotine and Alcohol 347 (1972)

: in & Elevator Co.,

United States x eee Grain - 18 L. Grinspoon & J. Bakalar, Psychedelic

287 U.S. 77 (1932) Drugs Reconsidered (1979)

United States v. Smith, 840 F.2d 886 (11th Cir.),

t. denied, 448 U.S. 859 (1988) 4, 10 A. Hoffman, LSD: My Problem Child (1979)

cert. denied, ».

ae 2d 125 (Sth Cir. 1989) 11 A. Ludwig & J. Levine, Patterns of

United States v. Taylor, 868 F.2 { Hallucinogenic Drug Abuse, 191 JAMA

' g k. 485 U.S. 351 (1988) 22 93 (1965), (cited in Organization and

United States v. Wells Fargo Ban Coordination of Federal Drug Research

United States v. Wiltberger, 5 Wheat. 76 (1820) 19, 20 | and Regulatory Programs: LSD

Hearings Before the Subcommittee on

Executive Reorganization of the

STITUTI STATUTES, AND RULES Committee on Government Operations

eat _ 89th Cong., 2nd Sess. 149 (Exhibit

11) (1966

U.S. Constitution ) ( )

Vv 2, 24, National Narcotics Intelligence Consumers

Aaa 30 Committee, The NNICC Report, 1989:

The Supply of Illicit Drugs to the

Amend VIII 30 United States (1989)

me ;

3

18 U.S.C. $3952{aX0) J. Smith, Patenting The Sun: Polio and

21 U.S.C. § 841(b) passim the Salk Vaccine (1990)

21 US.C. § 857(b) 5, 26 P. Stafford, Psychedelics Encyclopedia (1977)

28 U.S.C. §991(b)(1)(B) 3 Steadman’s Medical Dictionary 882 (24th ed. 1982)

MISCELLANEOUS

E. Brecher, Licit & Illicit Drugs: The .

Consumers Union Report on Narcotics,

2

interpretive issue now before the Court. If a narrow reading of the

statute and Guidelines, is even fairly possible”, or if there is a

“reasonable doubt" as to what Congress intended, then such a

narrow reading must be adopted by this Court pursuant to the well

established canons of statutory construction thai require courts to

avoid constitutional conflicts and to construe criminal statute with

lenity. And even if a literal reading the statutory language

unambiguously precluded the construction advocated here, the

doctrine of avoiding “absurd” results would nonetheless mandate

that construction.

Finally, if the Court adopted the government's construction

of the statute and Guidelines, such a construction would render the

relevant provisions unconstitutional under the Equal Protection

component of the Due Process Clause of the Fifth Amendment,

because there would exist no conceivable "rational relationship"

between the widely variable weights of different LSD carricrs and

any legitimate punitive purpose.

ARGUMENT

I. CONGRESS DID NOT INTEND THE

PHRASE "MIXTURE OR SUBSTANCE

CONTAINING A DETECTABLE AMOUNT OF"

LSD TO INCLUDE CARRIERS.

A. The language and structure of the statutory

scnicncing scheme indicate that Congress

did not intend punishment for trafficking

in controlled substances to depend upon

the weight of carriers or similar paraphernalia.

The penalty scheme for offenses involving the domestic

manufacture or distribution of controlled substances is set out in 21

3

U.S.C. § 841(b). The statute establishes sentencing ranges of

different levels of severity, based in part on the weight of the

"mixture or substance containing a detectable amount of” the

controlled substance involved. For a first offense involving a

schedule I or II controlled substance, the statute authorizes

imprisonment within one of three ranges -- not more than 20 years,

5 to 40 years; and 20 years to life’ -- depending on the nature of

the controlled substance and weight of the "mixture or substance"

involved.

The structure of § 841(b) evidences a clear congressional design

to achieve both proportionality and consistency in sentencing.

Heightened penalties are imposed for offenses involving greater

amounts of a "mixture or substance containing a detectable amount

of" a particular controlled substance. (The individual who sells in

10 grams of a mixture or substance containing LSD reccives a

harsher penalty than the individual who sells in 1 gram of a mixture

or substance containing LSD.) The weight-based equivalences

Congress has drawn between offenses involving different controlled

substances further demonstrates Congress’ intent to assure that

equally culpable individuals receive similar sentences. (The

individual who sells 1 gram of a mixture or substance containing

LSD receives the same sentence as the individual who sells 100

grams or more of a mixture of substance containing heroin.) This

Statutory design is consistent with Congress’ overall plan to achieve

proportionality and consistency in sentencing. See 28 U.S.C. §

991(b)(1)(B) (creating Sentencing Guidelines system); 18 U.S.C. §

3553(a)(6) (directing courts to "avoid unwarranted sentence

disparitics among defendants with similar records who have been

found guilty of similar conduct").

1 ‘The statute imposes heightened penalties for repeat offenders and for those

whose conduct results in death or serious bodily injury. 21 U.S.C. § 841(b).

4

The Federal Sentencing Guidelines, which determine the

sentence in a particular case within the range mandated by

Congress, incorporate the weight-based equivalencies set out in

section 841(b). U.S.S.G. § 2D1.1, comment (n.10) ("The

Commission has used the sentences provided in, and equivalences

derived from, the statute.") The Drug Quantity Table assigns a

base offense level based on the "weight of any mixture or substance

containing a detectable amount of the controlled substance."

U.S.S.G. § 2D1.1(c). The accompanying commentary specifies that

the phrase "mixture or substance’ as used in this guideline has the

same meaning as in 21 U.S.C. § 841." U.S.S.G. § 2D1.1, comment

(n.1).

The language and structure of this statutory scheme

demonstrate that Congress did not intend sentences imposed for

drug trafficking under section 841(b) to be based on the weight of

carrier media or similar paraphernalia. Paraphernalia used to

facilitate the handling and administration of a controlled substance

cannot reasonably be thought to be part of the "substance

containing” the illegal drug or an ingredient in the drug "mixture."

Courts nave routinely concluded that Congress did not intend the

phrase "mixture or substance" to include paraphernalia in which the

controlled substance is contained. See, e.g., United States v.

Luster, 896 F.2d 1122, 1127 (9th Cir. 1990) (section

841(b)(1)(A)(iii) includes "the weight of the entire mixture or

substance without packaging") (emphasis added); United States v.

Smith, 840 F.2d 886, 888 (11th Cir.) (calculation of the weight of

crack cocaine "mixture" did not include the weight of the 60 vials),

cert. denied, 448 U.S. 859 (1988); Thomas v. United States, 239

F.2d 7, 8 (10th Cir. 1956) (excluding weight of-capsule in which

5

heroin was contained). See also United States v. Marshall, 908

F.2d at 1317 ("That phrase cannot include all ‘carriers.”").*

The same analysis applies to vehicles used to carry LSD. The

synthetically produced compound LSD is odorless, colorless,

tasteless, and produces hallucinogenic effects in extremely small

doses.* These desage units are far too small to handle and are

therefore adhered to a carrier — typically paper, gelatin capsules or

sheets, or sugar cubes — for delivery and consumption. United

States v. Marshall, 908 F.2d 1312, 1315 (7th Cir. 1990) (en banc);

706 F. Supp. 650, 652 (N.D. Ill. 1989)* The LSD carrier, which

facilities the distribution and administration of measured doses of

LSD, performs the same function as gelatin capsules commonly

= As part of the Anti-Drug Abuse Act of 1986, Congress also enacted a drug

_ paraphernalia act prohibiting and punishing the sale of “any product, or material of

any kind which is primarily intended or designed for use in manufacturing,

compounding, converting, concealing, producing, processing, preparing, injecting,

ingesting, inhaling, Or otherwise introducing into the human body a controlled

substance.” 21 U.S.C. § 857(b). The penalties Congress established for illegal sale

of drug paraphernalia — imprisonment for not more than three years, a fine of not

more than $100,000, and forfeiture — are not based on the weight of the illegal

paraphernalia. The most logical was to harmonize the language of the

paraphernalia statute with that of 841(b) is to read the phrase "mixture or

substance” to exclude the vehicles used for handling or ingestion of the illegal

substances.

3k. Grinspoon & B. Bakalar, Psychedelic Drugs Reconsidered 77 (1979); E.

Brecher, Lictt & Illicit Drugs: The Consumers Union Report on Narcotics,

Stimulants, Depressants, Inhalants. Hallucinogens & Marijuana--Including Caffeine

Nicoune and Alcohol 347 (1972). The U.S. Sentencing Commission estimates that

the average dose weighs 50 micrograms (millionths of a gram). U.S.S.G. § 2D1.1,

comment (n.11) (Typical Weight Per Unit Tabie).

. Paper methods include “biotter (impregnated paper) and microdot (dried

droplets on paper).” L. Grinspoon & J. Bakalar, Psychedelic Drugs Reconsidered

at 77. See The NNICC Report 1989 at 88 ("blotter acid and microdots continued

to be the primary forms encountered"); P. Stafford, Psychedelics Encyclopedia at

15, 73-75 (cataloguing the use of microdots, gelatin squares, blotters, ampules,

sugar cubes)” "sugar cubes"); E. Brecher, Licit & Illicit Drugs at 367.

6

used by manufacturers and pharmacists to facilitate the delivery and

administration of preciscly measured dosages of lawfully purchased

substances.*

A carrier, which functions as a drug delivery system, is different

in nature and function from an agent that is mixed with a drug to

dilute it or increase its apparent weight or bulk. Drug traffickers

commonly adulterate the drugs they sell with less potent or even

inert substances to increase the apparent quantity of the drug and,

derivatively, their weight-based profits. A similar phenomenon

occurs in the LSD trade, albeit less frequently, when LSD tartrate

is mixed with less potent substances such as phencyclidine (PCP) or

methamphetamine crystals (speed) before delivery to the

consumer.’ By no stretch of the imagination, however, can the

carrier medium be seen as part of the "substance or mixture,"

because, as the government has stipulated, LSD is sold "without

— =

Similarly, suges ets have been used as a vehicle for administering the

Sabin Polo vaccine. .. Swe, Patenting The Sun: Polio and the Salk Vaccine 149

(1990). Carriers that facilitate the administration of a measured dose also reduce

the risk of accidental overdose. See A. Hoffman, LSD: My Problem Child at 71-73

(discussing the risks associated with preparations of LSD where the dosage is not

controlled).

® _E. Brecher, Licit_and Illicit Drugs at 96-98); 1989 NNICC Report at 7

(reporting that "cutting agents were used to compensate for the perceived shortage”

of cocaine “fueled by the many, well-publicized media reports of multiple seizures

and other successful law enforcement initiatives in both the United States and Latin

America during the latter ha!t of 1989").

7 LSD tartrate is a salt of LSD resulting from the combination of LSD and

tartaric acid. A. Hoffman, LSD: My Problem Child 72 (1979); See 132 Cong. Rec.

S. 9522 (July 23, 1986) (Statement of Sen. Hawkins) (noting the use of mixtures of

LSD, PCP, and crack cocaine); P. Stafford, Psychedelics Encyclopedia 12-14 (1977)

(1973 study of 405 samples of black market LSD reported 91.6% were pure LSD,

3.4% had no drug at all, 3% were actually dimethoxyamphetamine (DOM), PCP

and other drugs, and 2% had DOM, PCP, and methamphetamine in addition to

LSD); E. Brecher, Licit and Illicit Drugs at 376 (noting that “some black-market

suppliers adulterated their LSD with a variety of substances, including

amphetamines”).

7

regard to the weight of the carrier that contains that dosage.” Pet.

Add. 32A; 908 F.2d at 1330 (Cummings, J. dissenting). The carrier

medium functions solely as the delivery vehicle and is not part of

the "mixture Or substance” sold. Blotter paper, sugar cubes, and

gelatin squares containing LSD are best viewed “as carricrs, like the

package in which a fifth of liquor is sold." 908 F.2d at 1335

(Posner J., dissenting). If the phrase "mixture or substance” is to be

given the same meaning in cases involving LSD as elsewhere in the

statutory penalty scheme, it must be interpreted to exclude the

weight of the carrier vehicle.

This was the conclusion reached by Judges Posner and

Cummings in dissents from the decision below, by Judge Gesell in

United States v. Healy, 729 F. Supp. 140, 142 (D.D.C. 1990), and

also by the district courts in United States v. Hanlin, No. 9)-00006-

01 (W.D. Pa), appeal pending (4th Cir. 1990); and United States v.

Mendoza-Macias, No. 39-0932-T (S.D. Ca. 1990), appeal pending

(9th Cir. 1990) (all concluding that the paper carricr was not part

of a "mixture or substance containing a detectable amount of”

LSD). A mixture, as Judge Gesell explained, is “a coexistence of

different ingredients or of different groups or classes of things

mutually diffused through each other.” 729 F. Supp. at 142 (cting

9 Oxford English Dictionary 921 (1989)). See Steadman’s Medical

Dictionary 882 (24th ed. 1982) (defining “mixture” as "|a] mutual

incorporation of two or more substances, without chemical union,

the physical characteristics of each of the components being

retained"). Cocaine cut with lactose is a “mixture,” but "LSD and

blotter paper are not commingled in the same way as cocaine and

lactose.” 908 F.2d at 1317. A carrier containing or holding a

controlled substance is not a “mixture,” because there is no “mutual

incorporation.” Like a postage stamp on an envelope, LSD

adhered to a carrier is not a “mixture” in the ordinary sense of the

word.

8

Judges Posner, Cummings, and Gesell were also correct in

concluding that blotter paper carrying LSD is not a “substance

containing” LSD within the meaning of the statute. A "substance"

is "a species of matter of definite chemical composition,” or "any

particular kind of corporeal matter." 729 F. Supp. at 142 (citing 17

Oxford English Dictionary 64 (1989). LSD and carrier paper --

which do not react chemically with each other and do not form a

“particular” matter -- do not fall within the meaning of the word

substance. The Marshall majority agreed with this conclusion,

reasoning that the statutory "phrase cannot include all carriers.

One gram of crystalline LSD in a heavy glass bottle is still only one

gram of ‘statutory LSD.” So is a gram of LSD being ‘carried’ in a

Boeing 747." 908 F.2d at 1317.

The conclusion that the phrase "mixture or substance” does not

include blotter paper or other carriers is further supported by the

overall structure of the mandatory sentencing scheme. Since the

nature of the carrier medium does not affect the price or potency

of substance it delivers, carrier vehicles vary tremendously in size

and weight. In the present case, the LSD to paper ratio ranged

from 5.7 milligrams to 9.6 milligrams per dose of LSD. Marshall,

906 F.2d at 1316 n.1. In United States v. McGeehan, 824 F.2d 677,

680 n.4 (8th Cir. 1987), the gelatin carrier weighed 2.25 milligrams

per dose. A sugar cube weighs around 2 grams. Marshall, 906 F.2d

at 1333. These variances are quite significant in light of the fact

that the average dose of LSD is .0S milligrams. U.S.S.G. § 2D1.1,

comment (n.11). At the extreme. commentators report that LSD

has been distributed on animal crackers," and that "painting it onto

the fingernails and impregnating the cloth of a man’s suit have been

* A. Ludwig & J. Levine, Patterns of Hallucinogenic Drug Abuse, 191 JAMA

93 (1965), (cited in Organization and Coordination of Federal Drug Research and

Regulatory Programs: LSD, Hearings Before the Subcommittee on Executive

Reorganization of the Committee on Government Operations 89th Cong., 2nd Sess.

149 (Exhibit 11) (1966).

9

used for smuggling.”” Since the weight of the average LSD dose is

far lighter than any carrier, the weight of the carrier, if it is taken

into account, will determine the sentence. 906 F. 2d at 1333

(Posner, J., dissenting) ("Congress might as well have said: if there

is a carrier, weigh the carrier and forget the LSD."). Introducing a

factor as arbitrary and variable as the weight of the delivery vehicle

into the sentencing calculation would obviously destroy the weight-

based equivalencies established by Congress. Since, as the

government concedes, LSD is sold by dose, "without regard to the

weight of the carrier that contains that dosage," Pet. App. 32A, the

weight of a particular carrier bears no relation to amount of LSD

sold or to the defendant's culpability. Including the carrier medium

as part of the "mixture or substance” that the determines severity of

the sentence would therefore run contrary to the proportionality

and consistency Congress attempted to build into its sentencing

scheme.

Finally, excluding the weight of the carrier medium from the

weight-based sentencing calculation is also consistent with the

overall structure of the Federal Sentencing Guidelines. The

commentary to the Guidelines Drug Quantity Table contains a

Typical Weight Per unit Table, to be used to calculate the base

offense level in cases where the number of doses, but not the total

weight of the "mixture or substance,” is known. U.S.S.G. §

2D1.1(c), comment (n.11). The listed dosage weight for LSD -- .05

milligrams -- clearly excludes the weight of any carrier medium.

Excluding the weight of the carrier paper when the weight of the

"mixture or substance" is estimated, but including the weight of the

carrier when the weight of the "mixture or substance" is known,

makes no sense. Interpreting the Guidelines in such a manner

would result in drastically different base offense levels for

individuals distributing the same number of doses contained in the

% L. Grinspoon & J. Bakalar, Psychedelic Drugs Reconsidered 77 (1979).

10

same type of carrier. The only way to harmonize these guidelines

provisions is to interpret them all to exclude the weight of carriers.

The Government, in its response to the petition for certiorari,

argues that excluding the weight of the carrier from the sentencing

calculation is "contrary to the plain language of the statute and the

Sentencing Guidelines." Op. Cert. 5. This claim does not hold up

under scrutiny, however. While changes made in the Anti-Drug

Abuse Act of 1986 -- most notably the shift from LSD to "mixtures

or substances containing" LSD, and the application of different

penalty ranges for offense involving PCP and offenses involving "a

mixture or substance containing" PCP’® -- show that Congress

intended to include cutting agents and adulterants (LSD mixed with

amphetamines, or cocaine mixed with mannitol), as well as "pure"

controlled substances it does not suggest that Congress intended to

include carriers (gelatin capsules, blotter paper, sugar cubes, or

glass vials). See Marshali, 908 F.2d at 1317. In cases involving

heroin and cocaine, the statutory language has been interpreted to

include dilutants and adulterants added to drug mixtures sold by

weight but to exclude the carrier or container. See, e.g., United

States v. Luster, 896 F.2d 1122, 1127 (9th Cir. 1990); United States

y. Smith, 840 F.2d 886, 888 (11th Cir.), cert. denied, 448 U.S. 859

(1988). Similarly, while the phrase "mixture or substance

containing” LSD includes LSD and its salts and mixtures of LSD

and its salts with substances like methamphetamine crystals (speed),

PCP, or crack cocaine, it does not include the carrier. Since LSD

is often combined with tartaric acid and sometimes adulterated with

amphetamines and other similar substances, interpreting the phrase

“mixture or substance" to exclude the weight of the carriers would

10 21 US.C. § 841(b)(1)(A)(iv) refers to "100 grams or more of phencyclidine

(PCP) or 1 kilogram or more of a mixture or substance containing a detectable

amount of phencyclidine (PCP). Similarly, 21 U.S.C. § 841(b)(1)(B)(iv) refers to

offenses involving "10 grams or more of phencyclidine (PCP) or 100 grams or more

of a mixture or substance containing a detectable amount of phencyclidine(PCP).”

11

not leave the phrase "without a referent." See United State v.

Marshall, 908 F.2d at 1335 (Posner, J., dissenting).

Moreover, while several courts have agreed that statutory

language commands that the weight of the carrier be included in

the sentencing calculation, these same courts have disagreed about

the precise meaning of the statutory language and have been

unable to articulate a workable definition. The Seventh Circuit

majority ruled that LSD and blotter paper are not a "substance" but

are a "mixture" so long as the LSD is "inside the paper” rather than

"on the blotter paper.” 908 F. 2d 1312. This interpretation is

contrary to the reasoning of the Marshall district court that LSD

on blotter paper is not a "mixture," but a “substance.” 706 F. Supp.

650. The Court of Appeals never defined a "mixture," other than

to say that it is more inclusive than "substance." 908 F.2d at 1317.

The district court determined that "mixture" is the more inclusive

term. 706 F. Supp. at 653.

The alternate interpretation of the statutory language applied

by several courts and advanced by the Government --that the

phrase "substance containing" a controlled substance includes any

"distinguishable kind of physical matter" containing a controlled

substance"! -- is equally unworkable and obviously not what

Congress intended. This broad interpretation of the word

"substance" was rejected by both the majority and the dissenters in

Marshall because it would include all containers, from the "heavy

glass bottle” to the "Boeing 747." 908 F.2d 1312. Punishing LSD

offenders based on the weight of the blotter paper "would be like

11 Op. Cert. 9; United States v. Bishop, 894 F.2d 981 (8th Cir. 1990); United

States v. Daly, 883 F.2d 131 (4th Cir. 1989), cert. denied, 110 S. Ct. 2622 (1990);

United States v. Taylor, 868 F.2d 125 (5th Cir. 1989) (all holding that blotter paper

is a "substance containing LSD"). See United States v. Larsen, 904 F.2d 562 (10th

Cir. 1990), petition for cert. pending, No. 90-5509; United States v. Elrod, 898 F.2d

60 (6th Cir. 1990) (holding that LSD and blotter paper constitute a mixture or

substance containing” LSD).

10

same type of carrier. The only way to harmonize these guidelines

provisions is to interpret them all to exclude the weight of carriers.

The Government, in its response to the petition for certiorari,

argues that excluding the weight of the carrier from the sentencing

calculation is "contrary to the plain language of the statute and the

Sentencing Guidelines." Op. Cert. 5. This claim does not hold up

under scrutiny, however. While changes made in the Anti-Drug

Abuse Act of 1986 -- most notably the shift from LSD to "mixtures

or substances containing" LSD, and the application of different

penalty ranges for offense involving PCP and offenses involving "a

mixture or substance containing" PCP'® -- show that Congress

intended to include cutting agents and adulterants (LSD mixed with

amphetamines, or cocaine mixed with mannitol), as v il as “pure”

controlled substances it does not suggest that Congress intended to

include carriers (gelatin capsules, blotter paper, sugar cubes, or

glass vials). See Marshall, 908 F.2d at 1317. In cases involving

heroin and cocaine, the statutory language has been interpreted to

include dilutants and adulterants added to drug mixtures sold by

weight but to exclude the carrier or container. See, e.g., United

States v. Luster, 896 F.2d 1122, 1127 (9th Cir. 1990); United States

vy. Smith, 840 F.2d 886, 888 (11th Cir.), cert. denied, 448 U.S. 859

(1988). Similarly, while the phrase "mixture or substance

containing” LSD includes LSD and its salts and mixtures of LSD

and its salts with substances like methamphetamine crystals (speed),

PCP, or crack cocaine, it does not include the carrier. Since LSD

is often combined with tartaric acid and sometimes adulterated with

amphetamines and other similar substances, interpreting the phrase

“mixture or substance” to exclude the weight of the carriers would

19 21USC § 841(b)(1)(A)(iv) refers to "100 grams or more of phencyclidine

(PCP) or 1 kilogram or more of a mixture or substance containing a detectable

amount of phencyclidine (PCP). Similarly, 21 U.S.C. § 841(b)(1)(B)(iv) refers to

offenses involving "10 grams or more of phencyclidine (PCP) or 100 grams or more

of a mixture or substance containing a detectable amount of phencyclidine(PCP).”

11

cd

not leave the phrase "without a referent.” See United State v.

Marshall, 908 F.2d at 1335 (Posner, J., dissenting).

Moreover, while several courts have agreed that statutory

language commands that the weight of the carrier be included in

the sentencing calculation, these same courts have disagreed about

the precise meaning of the statutory language and have been

unable to articulate a workable definition. The Seventh Circuit

majority ruled that LSD and blotter paper are not a "substance" but

are a “mixture” so long as the LSD is “inside the paper” rather than

"on the blotter paper.” 908 F. 2d 1312. This interpretation is

contrary to the reasoning of the Marshall district court that LSD

on blotter paper is not a "mixture," but a "substance." 706 F. Supp.

650. The Court of Appeals never defined a "mixture," other than

to say that it is more inclusive than "substance." 908 F.2d at 1317.

The district court determined that "mixture" is the more inclusive

term. 706 F. Supp. at 653.

The alternate interpretation of the statutory language applied

by several courts and advanced by the Government --that the

phrase "substance containing” a controlled substance includes any

"distinguishable kind of physical matter” containing a controlled

substance”!! -- is equally unworkable and obviously not what

Congress intended. This broad interpretation of the word

“substance” was rejected by both the majority and the dissenters in

Marshall because it would include al! containers, from the "heavy

glass bottle” to the "Bocing 747.” 908 F.2d 1312. Punishing LSD

offenders based on the weight of the blotter paper "would be like

i Op. Cert. 9; United States v. Bishop, 894 F.2d 981 (8th Cir. 1990); United

States v. Daly, 883 F.2d 131 (4th Cir. 1989), cert. denied, 110 S. Ct. 2622 (1990);

United States v. Taylor, 868 F.2d 125 (Sth Cir. 1989) (all holding that blotter paper

is a "substance containing LSD"). See United States v. Larsen, 904 F.2d 562 (10th

Cir. 1990), petition for cert. pending. No. 90-5509; United States v. Elrod, 895 F.2d

60 (6th Cir. 1990) (holding that LSD and blotter paper constitute a “mixture or

substance cantaining” LSD).

12

basing the punishment for selling cocaine on the combined weight

of the cocaine and of the vehicle (plane, boat, automobile, or

whatever) used to transport it or the syringe used to inject it or the

pipe used to smoke it." 908 F.2d at 1332 (Posner, J., dissenting).

One can not attribute to Congress an intent to include the weight

of LSD carriers in the sentencing calculations but not vehicles used

to deliver or ingest other controlled substances, especially since the

weights of the various vehicles used to carry the tiny dosage units

vary so dramatically.

The Government's reliance on the "plain language of the

Sentencing Guidelines,” Op. Cert. 5, is also misplaced. The

Sentencing Commission thinks the phrase "mixture or substance" is

“unclear” and has asked Congress to "clarify legislative intent as to

whether the weight of the carrier should or should not be

considered in determining the quantity of LSD mixture of

punishment purposes.” Letter from William W. Wilkins, Chairman

of U.S. Sentencing Commission, to Sen. Joseph R. Biden, Jr.,

Chairman of the Senate Judiciary Committee (April 26, 1989)

(cited in Marshall, 908 F.2d at 1318). See Healy, 729 F. Supp. at

142.

Clarifying legislation has been introduced but not acted

upon by the full Congress. Senator Biden introduced, in a series of

“technical amendments” to the Controlled Substances Act, language

clarifying that the phrase " mixture or substance” does not include

the carrier medium. The senator explained that the amendment

would cure the inequity caused by federal courts that have included

the LSD carrier medium in the sentencing calculation. Cong. Rec.

S 12748 (daily ed. Oct. 5, 1989. The amendment was withdrawn

before Congress had an opportunity to act on it.

More recently, as part of the Drug and Alcohol Abuse

Treatment and Prevention Improvement Act of 1990, Senator

Kennedy proposed that Section 841(b)(1) be amended to "clariffy]"

that "[i]n determining the weight of a "mixture or substance” under

13 .

this section, the court shall not include the weight of . -* ne comnies

upon which the controlled substance is placed or by which it ts

transported.” 136 Cong. Rec. S 7069 (daily ed. May 24, 1990). The

amendment was reported favorably by Labor and Human emu

Committee on September 27, 1990. In its report, the Committee

noted the conflict that has arisen on this issue among the federal

courts and stated that the Court of Appeals’ decision in the poesens

case concluding that Congress intended the carrier to be weighed

was “erroneous{].” S. Rep. No. 101-476, 101st Cong., 2d Sess., at 64-

65.

For the reasons stated above, amici believe that language and

structure of drug penalty statute indicate that Congress did aot

intend to make sentences for LSD offenses depend on the weight

of the carrier. Though the government claims that the ‘pm

language” compels a contrary result, judicial and administrative -

attempts to interpret the language and legislative efforts to clarify it

at the very least "refute[] the proposition that the language of the

statute and the Guidelines ‘couldn't be clearer.” Marshall, 908

F.2d at 1329 (Cummings, J., dissenting). Even if this Court were to

conclude that the language and structure of the statute and

Guidelines do not compel the result urged here, the legislative

history and well-established canons of statutory interpretation

discussed below mandate that any ambiguity in the statutory

language be resolved in favor of this result.

B. The legislative history of the Anti-Drug Abusc

Act of 1986 supports the conclusion that Congress

did not intend scnicnces for drug traffickers

to depend on the weight of carricr media.

Congress’ amendment of the Controlled Substances Act creating

mandatory five-and-ten-year penalties based on the weight of the

"substance or mixture containing a detectable amount of” the

14

controlled substance was part of the Anti-Drug Abuse Act of 1986,

Pub. L. 99-570, 100 Stat. 3207 (1986). The Report of the House

Judiciary Committee on an earlier version of these amendments

reveals that Congress’ purpose was to “focus” scarce law

enforcement resources and to "distinguish drug traffickers by the

quantities of drugs they were responsible for selling or smuggling:

The Committee strongly believes that the federal

government's most intense focus ought to be on

major traffickers, the manufacturers or the heads of

organizations, who are responsible for creating und

delivering very large quantities of drugs. . .. 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.

H.R. Rep. No. 845, 99th Cong., 2nd Sess., at 11-12 (1986).

This Committee report reveals that, after studying the “distribution

patterns for these various drugs,” Congress adopted a "market-

oriented approach,” imposing mandatory minimum sentences based

on "the minimum quantity that might be controlled or directed by a

trafficker in a high place in the processing and distribution chain.”

Id. at 12.

As the Committee Report makes clear, the penalties set out in

section 841 are based on the weights of the "mixtures or substances"

that are weighed in the drug market. Congress was apparently

made aware of the use of cutting agents to increase the profits of

individuals in the upper echelon of the distribution chain and

2

'< The Committee was commenting on the Narcotics Penalties and

Enforcement Act of 1986, which contained language different from that of the

Anti-Drug Abuse Act of 1986 but was similar in that it prescribed heightened and

mandatory sentencing ranges for major traffickers based on the weight of the drug

mixtures involved.

15

therefore intended the phrase "mixture or substance” to include

cutting agents commonly added to controlled substances to increase

their weight. Since the market price of these mixtures is based

upon the combined weight of the controlled substance and the

cutting agent, Congress reasonably relied on the combined weight

as an indication of role in the distribut'on scheme.

It is equally clear that, from a "market-oriented approach,”

Congress did not intend the phrase "mixture or substance” to

include carricr media, whose weight plays no role in the drug

market. Since Congress consulted with DEA agents and

prosecutors about drug distribution patterns, Congress undoubtedly

knew that LSD is "sold by the ‘hit’ without regard to the weight of

the carrier that contains that dosage.” Pet. Add. A32. Congress

knew that "[n]either the price of those doses nor the number of

purchasers of those doses will increase because the LSD is sold on

blotter paper instead of in its granular or liquid form, and that a

dealer selling LSD that weighs more because he has chosen to sell

the drug on blotter paper will not be a more significant market

participant than one who has chosen to sell the same number of

doses in granular or liquid form." Marshall, 908 F.2d at 1330

(Cummings, J., dissenting). Basing the sentence in an LSD case on

a factor as arbitrary as the weight of the vehicle would obviously

undermine Congress’ weight-based "market-oriented" approach to

sentencing.

The contrary conclusion reached by the Chapman majority rests

in part on the assumption that the bizarre results flowing from its

interpretation of the penalty provision could be avoided by the wise

exercise of prosecutorial discretion and selective use of the

Continuing Criminal Enterprise Statute. Marshall, 908 F.2d at 1325

("Congress may count on prosecutorial discretion to take care of

the absurd cases ... and it has created the CCE Act to take care of

Mr. Big.”) The Commitice Report indicates that Congress rejected

that assumption:

16

One of the major goals of this bill is to give greater

direction to the DEA and the U.S. Attorneys on

how to focus scarce law enforcement resources. Up

until 1984 the controlled substances law did not

distinguish drug traffickers by the quantitics of the

drugs they were responsible for selling or smuggling.

The only basis for a heightened sentence was when

the defendant operated a continuing criminal

enterprise (21 U.S.C. 848).

H.R. Rep. No. 845, 99th Cong., 2nd Sess, at 11. Congress was well

aware of the Continuing Criminal Enterprise statute, thought that it

had not accomplished proportionality in prosecution and

sen'encing, and established a new weight-based market-oriented

sentencing scheme to solve — and not to exacerbate — these

problems.

Il. WELL-ESTABLISHED PRINCIPLES OF

STATUTORY CONSTRUCTION MANDATE THE

ADOPTION OF AMICI’S CONSTRUCTION

OF THE STATUTE AND GUIDELINES

In Part I of this Brief, amici have argued that the best

construction of Congress’ intent, based on the language, structure,

and legislative history of the statute and Guidelines, is that the

carrier medium on which LSD is adhered was not meant to be part

of the weight of the "mixture or substance containing a detectable

amount” of the drug for sentencing purposes. Even if this

construction were not the best one, however, its adoption would

nonetheless be compelled if the import of the statute and

Guidelines were at all ambiguous by well-established canons of

Statutory construction.

17

A. The rule of avoiding constitutional conflicts

mandates the adoption of amici’s construction

of the statute and Guidclines.

A.venerable rule of statutory construction requires that

Statutes be construed to avoid serious doubts about their

constitutionality. This "cardinal principle" was already well-

established in 1932 when this Court described it as follows:

"When the validity of an act of the Congress is drawn in question,

and even if a serious doubt of constitutionality is raised, it is a

cardinal principle that this Court will first ascertain whether a

construction of the statute is fairly possible by which the question

may be avoided." Crowell v. Benson, 285 U.S. 22, 62 (1932).'*

This rule finds its source in the judiciary’s respect for the

legislature as a coordinate branch of government. By avoiding

potential constitutional pitfalls in the interpretation of federal

statutes, the Court "recognizes that Congress, like this Court, is

bound by and swears an oath to uphold the Constitution.”

DeBartolo Corp. v. Florida Gulf Coast Building and Construction

«Trades Council, 485 U.S. 568, 575 (1988). Thus, the Court gives

Congress the benefit of the doubt by presuming that Congress

intended to legislate constitutionally. In addition, the rule respects

the balance between the legislature and the judiciary by reserving

the Court's authority to define the precise limits of legislative

power — the authority to draw constitutional lines in the sang — for

those cases in which the exercise of such authority is absolutcly

13 Accord Public Ciuzen vy. Department of Justice, 109 S. Ct. 2558, 2572

(1989); Frisby \_ Schultz, 487 U.S. 474 (1988); DeBartolo Corp. v_ Mlorida Gulf

Coast Building and Construction ‘Trades Council, 485 U.S. 568, 575 (1958), St

Martin I-vaneclical Lutheran Church v. South Dakota, 451 U.S. 772, 780 (1981).

NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 500-501 (1979), Lrznoznik +

Cry of Jacksonville, 422 U.S. 205, 216 (1975); Broadrick v_ Oklahoma, 413 U.S

601, 613 (1973), Schneider v. Smith, 390 US. 17, 26 (1968), Machinists ¥_ Street

467 U.S. 740, 749-750 (1961)

i8

necessary. Id. (The rule "reflects the prudential concern that

constitutional issucs not be needlessly confronted.") Finally, the

rule respects the legislature's handiwork because it permits the

Court "to preserve so much of the statute as can constitutionally be

preserved" rather than send Congress "back to the drawing boards"

with no effective enactment in the meantime. United States v.

Marshall, 908 F.2d at 1337 (Posner, J., dissenting) (Given the

choice between having the LSD statute and Guidelines declared

unconstitutional and having a constitutional interpretation of them

adopted by the Court, "we can be reasonably certain that Congress

would have preferred the second course.") In applying the rule,

courts are to adopt a saving construction if "reasonably possible,”

United States v. Shreveport Grain & Elevator Co., 287 U.S 77, 82

(1932), but should stop short of "perverting the purpose of a

statute” or endorsing a construction of a statute that is “plainly

contrary to the intent of Congress." Scales, 367 U.S. at 211;

DeBartolo Corp., 485 U.S. at 575.

Application of the rule to the instant case mandates that

the Court adopt amici’s construction of the statute and Guidelines. -

Firsi, the interpretation urged by amici is much more than “fairly

possible.” Amici has amassed significant support for the proposition

that excluding the weight of the carrier medium from the weight of

LSD for sentencing purposes is the best construction of the

RrOvisions at issue in this case, based on their language, structure

and legislative history. See supra Part I.

Moreover, and most significantly, the construction urged by

amici does not in any way "pervert" Congress’ purpose or intent in

enacting the statute and Guidelines. To the contrary, this

construction is the only way to avoid perversion of Congress’

evident and uncontested purposes. See Part I.B. supra.

The constitutional doubts raised about the statute and

Guidelines under the interpretation urged by the government are

evident and “serious.” To base sentencing determinations, and

19

especially the applicability of mandatory minimum terms of

imprisonment, on a factor as arbitrary as the weight of the LSD

carrier medium would violate petitioners’ right to due process of

law — that is, their right to have Congress set their punishment

based on a factor that bears some rational relationship to a

legitimate governmental goal. See infra Part III (elaborating

constitutional argument). Thus, proper application of the rule of

avoiding constitutional conflicts mandates the result urged by amici.

B. The rule of lenity mandates the adoption of amici’s

construction of the statue and Guidclincs.

The rule of lenity — "the rule that penal laws are to be

construed strictly” — is at least as old as the rule of avoiding

constitutional conflicts. See United States v. Wiltherger, 5 Wheat

76, 95 (1820) (Marshall, C.J.). This time-honored rule not only

ensures fair notice to criminal defendants about the consequences

of their actions, see Crandon v. United States, 110 S.Ct. 997 (1990),

it also tends "to minimize the risk of selective or arbitrary

enforcement and to maintain the proper balance between Congress,

prosecutors, and courts.” United States v. Kozminski, 487 U.S. 931,

952 (1988). So that its multiple purposes are served, the rule of

lenity has been applied equally to the interpretation of substantive

criminal statutes and to sentencing provisions.'* In its most

recent discussion of the application of the rule of lenity, this Court

explained that lenity applies to “those situations in which a

reasonable doubt persists about a statute’s intended scope even

after resort to ‘the language and structure, legislative history, and

motivating policies’ of the statute.” Moskal v. United States, 111 S.

14 See Hughey v. United States, 110 S. Ct. 1979, 1985 (1990), Bifuico v

United States. 447 U.S. 381, 387 (1980); Simpson v_ United States, 435 US. 6, 14-

1§ (1978); Ladner v. United States, 358 U.S. 169, 178 (1958)

20

Ct. 461, 465 (1990) (quoting Bifulco v. United States, 447 US. at

387). If any of the traditional guides to interpretation listed by the

‘Court give rise to a "reason to doubt" Congress’ intent to sweep

broadly, then lenity should apply and the statute should be

construed narrowly.

As amici explained Part I, supra, each of the traditional

guides to interpretation gives rise to a multitude of reasons to

doubt Congress’ intent to include the weight of the carrier medium

in the weight the "mixture or substance containing a detectable

amount” of LSD for sentencing purposes. Moreover, the harms

sought to be avoided by the rule of lenity would materialize in this

case if the rule were not applied. Given the lack of any workable

definition of "mixture or substance,” defendants cannot fairly be said

to have notice of the statutory consequences of their actions.

Prosecutors would be given enormous power to select which LSD

offenders — some of whom may have small amounts of LSD but

very weighty carriers — to charge under the mandatory minimum

Statutory provisions. Finally, if this Court were to inject a variable

that has nothing to do with the defendant's culpability into a

sentencing scheme intended to achieve proportionate sentencing, it

would violate the “plain principle that the power of punishment is

vested in the legislative, not in the judicial department.” United

States v. Wiltberger, 5 Wheat 76, 95 (1820) (Marshall, C.J.). In

light of the reasons to doubt the government's interpretation of

Congress’ intent and the consequences of adopting such an.

interpretation, the rule of lenity should be applied to adopt amici's

narrower construction of the provisions at issue in this case.

C. The rule of avoiding absurd results mandates

the adoption of amici’s construction of the

statute and Guidelines.

21

The rule of avoiding constitutional conflicts and the rule of

lenity are applicable only if "fairly possible" or if the statute at issuc

leaves a "reasonable doubt" as to its intended scope. Yet the Court

of Appeals in the instant case found that the language of the

statute and the Guidelines was so crystal clear as to leave no room

for the operation of these rules. United States v. Marshall, 908

F.2d at 1318. This is also the position advanced by the government

in support of the position below. Op. Cert. at 9 [ There - ‘no

ambiguity’ in the language of the statute or the Guideline."). Yet

even if the Court of Appeals and the government were correct that

a literal reading of the statutory terms would preclude amici’s

construction, the third rule of interpretation compels the Court to

look beyond the literal reading of the statute when such a seading

would lead to “absurd or glaringly unjust results.” Sorrells v. United

States, 287 U.S. 435, 450 (1932).

i This rule of construction was most succinctly stated by the

Court in 1892: |

[F]requently words of general meaning are wed in a

statute, words broad enough to include an act in

question, and yet a consideration of the whole

legislation, or of the circumstances surrounding its

enactment, or of the absurd results which follow

from giving such broad meaning to the words, makes

it unreasonable to believe that the legislator

intended to include the particular act.

Church of the Holy Trinity v. United States, 143 U.S. 457, 459

(1892).!° This Court most recently applied this rule in Public

1S Ancient common law examples of such absurdity include applying a statute

baining obstruction of the mails against a sheriff who was executing a esr : 1

arrest the mail carrier for murder, or applying a medieval law against drawing -_

in the streets against a physician who came io the aid of a passerby chaps

in the street in a fit. See id. at 2565-2566; United States v Kirby, 7 Wall re 48

(1869). This rule of avoiding absurdity has been adhered io consistently by this

99

Citizen v. Department of Justice, 109 S. Ct. 2558 (1989), holding

that although a literal reading of the Federal Advisory Commitice

Act would extend its application to the Justice Department's

solicitation of the ABA Committee's views on prospective judicial

nominees, such a result would be so unreasonable as to cast doubt

on whether Congress truly intended it. In support of its holding,

the Court quoted approvingly from Judge Learned Hand to the

effect that while "the words used, even in their literal sense are the

primary, and ordinarily the most reliable source of interpreting the

meaning of any writing,” nevertheless “it is one of the surest indexes

of a mature and developed jurisprudence not to make a fortress out

of the dictionary; but to remember that statutes always have some

Purposes or Object to accomplish, whose sympathetic and

imaginative discovery is the surest guide to their meaning.” Id. at

2566 (quoting Cabell v. Markham, 148 F.2d 737, 739 (CA2), aff'd,

326 U.S. 404 (1945)).

In the instant case, if the words "mixture or substance” were

read as the government contends they must be, the results would be

patently absurd and plainly inconsistent with Congress’ purposes of

focusing scarce law enforcement resources and treating like

offenders alike. The glaring absurdity created by such a reading is

the keying of punishment for LSD traffickers to an arbitrary and

meaningless detail — the weight of the carrier medium — which

bears no relationship to the weight or number of doses of the drug,

the market value of the drug, or the harm to society from its

distribution. Such a reading would punish LSD traffickers in a

manner grossly disproportionate to the treatment of purveyors of

cocaine and heroin, see United States v. Marshall. 908 F.2d at 1335

(Posner, J., dissenting), and it would punish LSD traffickers whose

Court throughout this century.See United States v_ Wells Fargo Bank. 485 U.S. 35]

(1988); Offshore Logistics, Inc. v. Tallenure. 477 US. 207 (1986): Griffin s

Oceanic Contractors, Inc., 458 U.S. 564. §7] (1982); United States vo American

Trucking Assns.. Inc., 310 U.S. 534, $43-544 (1940)

~

23

carrier weight was known more than LSD traffickers whose dosage

alone was known — by a factor of more than 100. See 908 F.2d at

1315. These absurdities, so inconsistent with the general purposes

of the provisions at issue, compel this Court to conclude that

Congress did not intend what the government contends is the literal

meaning of the statutory language.

Ill. THE GOVERNMENT'S INTERPRETATION

OF THE STATUTE AND GUIDELINES

WOULD RENDER THEM UNCONSTITUTIONAL.

If the Court were to reject amici’s construction of the state

and Guidelines urged in Parts I and II and to accept the

government's reading, the statute and Guidelines would violate the

constitutional guarantee of Equal Protection of the Laws, made

applicable to the federal government through the Due Process

Clause of the Fifth Amendment. Sce Bolling v. Sharpe, 347 U.S.

497 (1954). For a provision to withstand an Equal Protection

challenge, the legislative classifications must be "rationally related to

a legitimate governmental interest." Department of Agriculture v.

Moreno, 413 U.S. 528, 533 (1973). This so-called "rational basis

test” contains two substantive limitations on legislative choice:

legislative enactments must implicate legitimate goals, and the

means chosen by the legislature must bear a rational relationship to

those goals. In an alternative formulation, the Court has explained

that these limitations amount to a prescription that “all persons

similarly situated should be treated alike." Cleburne v. Cleburne

Living Center, Inc., 473 U.S. 432, 439 (1985); see Plyler v. Doe, 457

U.S. 202, 216 (1982); Reed v. Reed, 404 U.S. 71, 76 (1971). As

this Court has stated on many occasions, "the rational- basis

standard is ‘not a toothless one.” Schweiker v. Wilson, 450 U.S.

24

221, 234 (1981) (quoting Mathews v. Lucas, 427 U.S. 495. 510

(1976)).!°

Applying the rational basis standard to the instant case. it is

apparent that the government's construction of the statute and

Guidelines cannot pass constitutional muster. The problem lies not

in the general goals of the statute and Guidelines, for it is surely a

legitimate goal to set out a graduated schedule of punishment for

drug traffickers. Rather, the problem lies in the lack of a rational

relationship between the weight of the LSD carrier medium and

any possible punitive purpose. The legislative history makes clear

that Congress included the weight of the "mixture or substance

containing a detectable amount" of a controlled substance in the

weight of the drug for sentencing purposes because Congress

sought to punish more severely those traffickers who dealt with

larger quantities of controlled substances. See H.R. Rep. No. 845,

99th Cong., 2d Sess, at 11 (1986) (House Committee Report on the

Anti-Drug Abuse Act of 1986). But for LSD, which the

government has stipulated is sold by dose and not by weight, the

weight of the carrier bears no relationship at all to the quantity of

LSD possessed by a trafficker in the drug. Nor does the weight of

the carrier medium bear any relation to any other conceivable

punitive purpose — i.¢., the number of doses of LSD available for

distribution, the market value of the LSD, or the social harm

caused by the distribution of the drug. Rather, the weight of the

16 Its lack of "toothlessness” has been demonstrated over the years by its

invalidation of a wide range of legislation. See, e.g., Hooper v. Bernalillo, 472 U.S

612 (1985) (classification based on length of residency); Cleburne v. Cleburne

Living Center, 473 U.S. 432 (1985) (classification based on mental retardation ):

Bearden v. Georgia, 461 U.S. 660 (1983) (sentencing classification based on

indigence); Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982) (classification

based on processing time by state Fair Employment Practices Commission): Jiminez

y._Weinherger, 417 U.S. 628 (1974) (classification based on illegitimacy);

Department of Agriculture v. Moreno, 413 US. 528 (1973) (classification based on

relationship of household members); Department of Agriculture v. Murry. 413 US

S08 (1973) (classification based on claim of adult child as tax dependent)

25

carricr medium is a completely arbitrary factor, and the weight of

the carricr is so much greater than the weight of the LSD adhered

to it that the carrier weight alone — the arbitrary factor — that

completely determines the punishment in LSD cases. "[T]o base

punishment on the weight of the carrier medium makes about as

much sense as basing punishment on the weight of the defendant."

United States v. Marshall, 908 F.2d at 1333 (Posner, J., dissenting).

When this case was before the Court of Appeals, the

Department of Justice was unable to advance any rational

rclauonship between the weight of the carrier medium and the

graduated scale of punishment for trafficking in LSD. Undeterred,

the Court of Appeals posited three conceivable bases for

determining punishment based on the weight of the carrier medium.

In doing so, the Court of Appeals simply invented crucial “facts” to

support its claims without a shred of record evidence. Moreover,

the reasons advanced by the Court of Appeals, even with the

invented facts, still fail to provide a rational justification for

counting the weight of the carrier medium for sentencing purposes. -

First, the Court of Appeals reasoned that "blotter paper

apparently has contributed to the renewed success of the drug,

making it casy to transport, store, conceal, and sell." 908 F.2d at

1324. There is absolutely no record evidence that LSD has had any

"renewed success,” or that if it has, such success was due to a

sudden advent of blotter paper. See 132 Cong. Rec. S. 9049 (July

15, 1986) (statement of Sen. Hawkins) ("the use of ... LSD declined

substantially in the past 5 years.") Along the same lines, the Court

of Appeals furthered reasoned that because blotter paper is a "tool

of the trade,” it is rational to make the penalty for LSD trafficking

“depend on a carrier that is essential to successful distribution of

the drug.” Ibid. It is reasonable since blotter paper, like other drug

paraphernalia, can play an essential role in transportation, sale, or

ingestion of controlled substances it is reasonable for Congress to

26

prohibit and punish its sale.'’ The problem is that it makes no

sense to punish the possession of such paraphernalia by its weight.

Congress might equally wel! seek to punish the use of glassine bags,

plastic vials, tin foil packets, cigarette papers, pipes, and hypodermic

needles — all of which play a role analogous to that of blotter

paper. But it would be fundamentaliy irrational for Congress to

punish the use of these implements by their respective weights

because the relative weights of various packaging materials and

other drug paraphernalia bear absolutely no correlation to the

amount of drugs they can transport, contain, or conceal. Thus. the

first basis offered by the Court of Appeals for counting the weight

of the carrier medium fails miserably at achieving “rationality.”

Second, the Court of Appeals reasoned that because "in

99% of all cases, LSD is sold in blotter paper,” we need not “worry”

about the anomalous treatment of sugar cubes and pure liquid

LSD. Ibid. There is no record support for the "99%" figure, nor

for the dual propositions that "[nJo one has been prosecuted for

distributing LSD in sugar cubes in the last twenty years” and "no

one has been prosecuted for possessing significant quantities of

pure LSD in the last decade." Ibid. It is possible that there are no

reported appellate decisions that reflect such prosecutions, but thc

Court of Appeals would have no way of knowing what actual

prosecutions took place across the country, resulting in a variety of

dispositions not necessarily subject to reported appellate decision,

in the past twenty years.'* Moreover, and perhaps more to the

point, the Court of Appeals ignores evidence that there has been at

least one prosecution recently for the possession of LSD on eclatin,

" See 21 U.S.C. §857 (imposing punishments for sale of drug paraphernalia

without regard to weight).

is See, ¢.g., United States v_ Lowden, No. 89-00031-1 (D.Ma. 1989) appeal

docketed, No. 90-1605 (CA 1990) (defendant possessed 5.7 grams of a liquid

containing LSD in a wal).

27

which weighs considerably less than blotter paper. See United

States v. McGeehan, 824 F.2d 677, 680 n.4 (8th Cir. 1987) (1,000

hits of LSD on gelatin weighed 2.25 grams, or 2.25 mg. per dose, as

compared with 5.7 mg. per dose on petitioner Chapman's blotter

paper and 9.6 mg. per dose on respondent Marshall's blotter

paper). And it is quite clear from the reported appellate decisions

regarding blotter paper alone that blotter paper ranges significantly

in weight, with massive effects on sentencing. Marshall, 908 F.2d at

1316 n.1 Thus, defendants move in and out of the ambit of

mandatory minimum sentences and are given widely varying base

offense levels under the Guidelines based on the arbitrary weight of

their carriers.

It is no answer to these pervasive anomalies to assert that

“prosecutorial discretion" will take care of it. 908 F.2d at 1325.

First, as we know from the legislative history of the Anti-Drug

Abuse Act, Congress wanted the mandatory sentencing scheme to

direct prosecutors, not the other way arouad. See Part I. B. supra.

Second, while it is possible that prosecutorial discretion might take

care of the truly ridiculous case of one hit of LSD on a 2-Ib brick.

. 1s clear that prosecutorial discretion is not taking care of the

momalics listed above. After all, these anomalies are present in

» very case, given the significant disparity in the weight of the

‘otter paper among the codefendants now before the Court. The

“nited States has exercised no prosecutorial discretion in this or

any other case to prevent penalties from turning on the arbitrary

weight of the carrier medium. And even if the United States did

choose to exercise discretion and not charge certain cases under the

mandatory minimum sentencing provisions, the prosecutor's

discretion does not extend to changing the way base level offenses

are computed under the Guidelines. Finally, either the Statutory

scheme is rational, or it is not. The possibility that the proper

exercise of prosecutorial discretion might mitigate some of the

28

worst irrationality does not make the underlying scheme more

rational or less arbitrary on its face.

Third and finally, the Court of Appeals posits the possibility

that Congress included the weight of the carrier paper as part of

the weight of the drug in order to avoid the difficulty of accurately

weighing the drug itself, which is present only in "an exceedingly

small quantity." 908 F.2d at 1325. Once again, there is absolutcly

no support in the record for the proposition that it is much more

difficult to weigh LSD than to find out whether it is present on a

carrier medium. Indeed, almost every reported decision at both the

trial and appellate levels has included the weight of the LSD as

well as the weight of the carrier medium. There is simply no

reason to belicve that such weights are difficult to obtain, cither

directly or by extrapolation. Morcover, and again perhaps more to

the point, even if it were true that Congress believed that the

actual weight of the LSD were too hard to obtain accurately,

Congress would not be free to substitute for the weight of the drug

itself the weight of something wholly unrelated to the quantity of

the drug present. Congress is free to address any difficulty that

might exist in accurately weighing LSD, but only in a manner that

can be deemed rational. Indeed, the matter is handled by the

Sentencing Guidelines, which set out the average weight per dose

estimates to be used "if the number of doses ... but the weight of

the controlled substance is known.” U.S.S.G. § 2D1.1, comment

(n.11). In contrast, the notion of substituting the weight of a

carrier, which varies by factors at least as high as one hundred from

the weight of the drug itself and from the weight of other carriers,

is pure irrationality.

Perhaps recognizing that its purported "rational bases" for

counting the weight of the carricr medium fail to rationalize the

statute and Guidelines in any meaningful way, the Court of Appeals

notes, with some exasperation, that irrationality is inevitable in any

sentencing scheme: "Every attempt to make the system of

29

sentences ‘more rational’ carries costs and concealed irrationalities,

both loopholes and unanticipated severity.” 968 F.2d at 1326. This

observation is no doubt correct, but it misses the point of

defendants’ and amici’s challenge in the instant case. The problem

with the government’s construction of the statute and Guidelines at

issue in this case is not that it might permit some unfair results

because of "unanticipated loopholes” or "concealed irrationalities,”

but rather, that it makes punishment turn in every case on a factor

bearing no rational relationship to culpability in any conceivable

sense. There is an essential difference between a sentencing

scheme that is arbitrary because of the inherent frailties of human

nature and one that is arbitrary by design. The irrationality of the

government's construction is pervasive and inescapable. While

petitioners’ may not have the right to a perfect sentencing scheme,

they do have the right to one that is not fundamentally arbitrary. ,

This is the core meaning of the Equal Protect of the Laws — the

right to be free from the fundamentally arbitrary exercise of

governmental power. If the government’s construction of the

Statute and Guidelines is adopted in this case, those provisions must

be invalidated in light of the Equal Protection component of the

Due Process Ciause of the Fifth Amendment.'”

19 Alternatively, one could conceive of the right to be free from the arbitrary

infliction of punishment as a right to be free from “cruel and unusual punishment"

under the Eighth Amendment. See, e.g., Furman v. Georgia, 408 U.S. 249, 250

(1972) (Douglas, J.) (A penalty "should be considered ‘unusually’ imposed if it is

administered arbitrarily or discriminatorily.”") Whether one considers the right to be

free from arbitrary governmental action under the Equal Protection clause or the

Eighth Amendment, the analysis would be the same: one would have to determine

whether the legislature could be said to have acted rationally, i.e., whether the

legislative action bore a rational relationship to a legitimate governmental goal.

30

CONCLUSION

For the reason given above, amici urge this Court to reverse

the decision beiow.

Respectfully submitted,

Kevin Zeese * Alan Ellis

Drug Policy Foundation NACDL

4801 Massachusetts Ave., NW 1110 Vermont Ave., NW

Washington, DC 20016 Washington, DC -20005

(202) 895-1634 (202) 872-8688

Sharon Beckman Carol Steiker

Silverglate & Good Public Defender Service

89 Broad Street of the Dist. of Columbia

Boston, MA 02110 451 Indiana Ave., NW

(617) 542-6663 Washington, DC 20001

(202) 628-1200

Atiorneys for Amici Curiae

* Counsel of record