# Amicus Curiae Brief — Chapman v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0125%3A10

## Record

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

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0125%3A10. Public record. Not legal advice.