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05/14/73 United States of America v. Raymond Moore

May 14, 1973




Before resting, defense counsel referred the court to appellant's pre-trial testimony, that he was a non-trafficking addict who came to the room to buy narcotics to supplement the supply in his pocket, and made a proffer of testimony of McKinley Gore, a former addict and a counselor of drug addicts with the District of Columbia Narcotics Treatment Administration , that some addicts do use more than 50 capsules daily, and have 50 or more capsules in their possession, and that appellant had been enrolled in the NTA methadone program since December 9, 1970, and his chances for rehabilitation were good.3


Certiorari Denied October 23, 1973, 414 U.S. 980, 94 S. Ct. 298, 38 L. Ed. 2d 224.

Appeal from the United States District Court for the District of Columbia.


Bazelon, Chief Judge, and Wright, McGowan, Tamm, Leventhal, Robinson, MacKinnon, Robb and Wilkey, Circuit Judges, sitting en banc. Leventhal, Circuit Judge; with whom McGowan, Circuit Judge, concurs. Robb, Circuit Judge, concurring. Wright Circuit Judge, with whom Bazelon, Chief Judge, and Tamm and Robinson, Circuit Judges, join, dissenting. Bazelon, Chief Judge (concurring in part and dissenting in part).


Judge Wilkey, with whom Circuit Judges MacKinnon and Robb join, filed an opinion voting to affirm all convictions and the sentences in the District Court. Circuit Judge Leventhal, with whom Circuit Judge McGowan concurs, filed an opinion voting to affirm all convictions and to remand to the District Court for further consideration of NARA disposition on resentencing. Circuit Judge MacKinnon concurred in Part IV of Circuit Judge Leventhal's opinion, and Chief Judge Bazelon in Part V thereof. Circuit Judges MacKinnon and Robb filed separate opinions voting to affirm all convictions and the sentences in the District Court.

Circuit Judge Wright, with whom Chief Judge Bazelon and Circuit Judges Tamm and Robinson join, filed a dissenting opinion voting to remand for a new trial in which the jury would be permitted to decide whether the defendant as a result of his repeated use of narcotics lacked substantial capacity to conform his conduct to the requirements of the law. Chief Judge Bazelon filed a dissenting opinion, stating he would extend the possibility of this defense of lack of capacity to crimes other than narcotics possession.

There being a majority of five judges of the court voting to affirm all convictions, but there being no majority in favor of any specific disposition, Circuit Judges MacKinnon, Robb and Wilkey, without intimating any dissatisfaction with the sentences originally imposed by the District Judge, vote to join Circuit Judges McGowan and Leventhal in affirming defendant Moore's conviction on all counts, vacating the sentences imposed, and remanding to the District Court for resentencing.

So ordered.

WILKEY, Circuit Judge, with whom Circuit Judges MacKINNON and ROBB join.

This is an appeal from a conviction under two federal statutes for possession of heroin. Appellant contends that his conviction was improper because he is a heroin addict with an overpowering need to use heroin and should not, therefore, be held responsible for being in possession of the drug. After careful consideration, we must reject appellant's contention and affirm the conviction by the trial court. I. The Undisputed Evidence and the District Court's Actions

During January 1970 the Metropolitan Police began an investigation into a heroin trafficking operation allegedly being conducted in a Northwest Washington hotel. Through an informant, investigating officers learned that two men, identified simply as "Crip Green" and "Jumbo," were selling the drugs from two rooms in the hotel; acting under police supervision, the informant made heroin purchases from both of the suspects.

Based upon this information, search warrants for the two hotel rooms were obtained and executed on 29 January 1970. After knocking and announcing their identity and purpose, and receiving no reply, the officers forced their way into the room. The scene that greeted the officers was accurately described in appellant's own brief as follows:

The room was about 10-12 feet in depth. Against the far wall was a bed, the head of the bed being to the left and the foot to the right. Two chairs were positioned at the side of the bed, facing it, and about one foot away. Sherman W. Beverly was seated on the left-hand chair, and Raymond Moore was seated on the right-hand chair. Both were still seated, and simply twisted around in their chairs to look at the door, when Officer Daly entered.

. . . In front of Mr. Beverly's chair, about one inch from the edge of the bed, was a white-framed mirror on which there was a quantity of white powder (later found to be 1,854.5 milligrams of a mixture containing 4-7% heroin). [Footnote omitted.] To the right of the mirror, in front of Appellant's chair, was a flat square cardboard record album cover, on which there was also a quantity of white powder (later determined to be 1,824 milligrams of a mixture containing 4-7% heroin). Between these two "cutting boards" lay 93 new gelatin capsules and 81 used gelatin capsules (as determined by the fact that there was a small but detectable amount of white powder containing heroin in the capsules). To the left of the mirror lay 67 capsules filled with a white powder (later found to be a total of 3,650 milligrams containing 4-7% heroin). Toward the far edge of the bed there was a woman's stocking stretched over a wire coat hanger (called a cutting screen). Next to the cutting screen was an unopened package containing about 10 hypodermic syringes and needles. Lying on the album, in front of Mr. Moore's chair, was an ace of hearts cut in half (often called a cutting card). Near the pillow were a set of keys that were found to fit the door of room 15. Under the pillow was a 38-caliber Smith & Wesson pistol.

It is obvious that these implements were intended for use in mixing undiluted heroin with lactose and/or quinine to reduce it to a street concentration of about 5-10%, cutting into the quantity normally injected, and capping it in a form in which it can be sold and carried.

After Appellant and Beverly were arrested, they were searched. A plastic vial containing 50 capsules of a white powder (later found to be a total of 2,274.9 milligrams of a mixture containing 4-7% heroin) was found in Appellant's right front trouser pocket. Nothing was found on Beverly. *fn1

Upon this evidence a four-count indictment was returned charging appellant with violations of the Harrison Narcotics Act, 26 U.S.C. 4704(a) (1964), and the Jones-Miller Act, 21 U.S.C. § 174 (1964). *fn2 Advancing his argument that he was a hopelessly dependent addict and could not, therefore, be held responsible for possession of heroin, appellant sought to have the indictment dismissed under the authority of this court's opinion in Watson v. United States. *fn3

At the hearing on this motion appellant stated and the Government stipulated that appellant was indeed a heroin addict. Appellant further testified that he was not a heroin pusher, had never engaged in drug trafficking, and had simply come to the hotel room where he was arrested in order to purchase the illicit drug.

Relying on our opinion in Watson, appellant argued that he was a mere non-trafficking addict and that the indictment should be dismissed for any one of three reasons. First, appellant argued that it is unconstitutional to hold a non-trafficking addict guilty of simple possession of heroin. This position rests on an amplification and extrapolation of the Supreme Court's interpretation of the Eighth Amendment advanced in the admittedly confused and divergent opinions in Robinson v. California *fn4 and Powell v. Texas. *fn5 The second ground, an extension of the common law principle that there cannot be the requisite free will if the illegal act is performed because of overpowering compulsion, asserts that a narcotics addict is excused from any criminal penalties for the illegal acts of purchase, possession, and use of narcotics to satisfy his personal addictive needs. The third is appellant's construction and interpretation of the series of four congressional acts, which not once since 1909, neither in black letter statute nor in committee report, have specifically exempted the non-trafficking addict from criminal penalties for purchase, possession, and use.

The Government responded by arguing first that there was no constitutional, common law, or statutory rationale for permitting a non-trafficking addict a defense to a charge of possession of heroin. Secondly, it contended that in any event Moore was not a non-trafficking addict but was in fact engaged in pushing the drug and, even if there were a defense available to mere addicts, such a defense should not be permitted here.

Following a hearing, the trial court denied appellant's motion to dismiss. The trial judge, however, reserved his judgment on whether evidence of addiction could be introduced to the jury by the defense.

At trial the principal prosecution witness was the arresting officer who testified to the facts described above. In addition he testified that he had no personal knowledge that appellant was engaged in drug trafficking, that no tests had been conducted to determine if appellant's fingerprints were on the paraphernalia in the room, that no tests were conducted to determine if heroin powder was present on appellant's hands, and that he had not checked the hotel register and had no way of knowing whether appellant was in any way connected with the room in which he was arrested. On cross-examination the officer admitted that some addicts' habits require 50 to 100 capsules per day, and that having that many capsules in his pockets would not necessarily be inconsistent with appellant being a mere non-trafficking addict. Finally, the officer agreed on cross-examination that in his opinion appellant Moore was a heroin addict.

During the Government's presentation, the court heard out of the presence of the jury the testimony of Dr. Kaufman, an expert on drug addiction. Dr. Kaufman testified that appellant was an addict of long standing, that appellant's addiction had the characteristics of a disease, and that as a consequence appellant was helpless to control his compulsion to obtain and use heroin.

At the conclusion of this testimony, the trial court ruled that Dr. Kaufman would not be permitted to testify before the jury, apparently on the ground that addiction can never be a defense to a charge of possession of heroin. After the Government rested its case, the court denied a motion by appellant for a judgment of acquittal. Appellant then renewed his motion to dismiss the indictment on the basis of Watson. This motion to dismiss was rejected this time because the court felt that there was sufficient evidence of trafficking to permit the case to go to the jury. The court also indicated that it would now permit Dr. Kaufman to testify; this permission was, however, withdrawn the following day.

After this ruling the defense decided not to introduce any further evidence. Before resting, however, for purposes of completing the trial record, the defense offered to introduce the testimony of Mr. McKinley Gore of the District of Columbia Narcotics Treatment Administration. This testimony would have been to the effect that some addicts have habits that require more than 50 capsules per day and that such addicts may have more than 50 capsules in their possession at one time. Mr. Gore also would have testified, if permitted, that appellant was currently enrolled in a methadone therapy program, that in Mr. Gore's opinion appellant's chances for rehabilitation were good, and that Moore was beginning to solve the root problem of his addiction and would soon no longer need heroin.

Following this proffer, the court declined to instruct the jury that a non-trafficking addict could not be convicted under the statutes charged. Moore was found guilty on all four counts of the indictment. Acting upon appellant's motion immediately after the verdict was announced, the court committed appellant appellant to the Federal Correctional Institute at Danbury, Connecticut, for determination of his suitability for treatment under Title II of the Narcotics Addict Rehabilitation Act of 1966, 18 U.S.C. § 4251 et seq. (1970). Subsequently, the NARA staff reported that appellant was an addict, both physically and psychologically dependent on heroin, but was not suitable for treatment. Thus on 14 June 1971 the court sentenced appellant to concurrent terms of two to six years for the violations of 26 U.S.C. 4704(a) and six years for the violations of 21 U.S.C. § 174. Appellant now seeks reversal of this conviction.

We believe it is clear from the evidence that Moore was not a mere non-trafficking addict but was in fact engaged in the drug trade. *fn6 Yet even if we were to assume that appellant was a simple addict and nothing more, we believe that his conviction must be sustained. II. Appellant's Common Law Defense

Let us see how far the logical basis of appellant's argument would inexorably take us. Bear in mind that this logical extension of the argument appellant makes here was foreseen by Justice Black and others of the Supreme Court in Robinson and Powell, as discussed infra, which may account for the limits written into those decisions, limits which appellant would have this court take upon itself to expand.


According to appellant this case has one central issue:

Is the proffered evidence of Appellant's long and intensive dependence on (addiction to) injected heroin, resulting in substantial impairment of his behavior controls and a loss of self-control over the use of heroin, relevant to his criminal responsibility for unlawful possession. . . . *fn7

In other words, is appellant's addiction a defense to the crimes, involving only possession, with which he is charged? Arguing that he has lost the power of self-control with regard to his addiction, appellant maintains that by applying "the broad principles of common law criminal responsibility" we must decide that he is entitled to dismissal of the indictment or a jury trial on this issue. The gist of appellant's argument here is that "the common law has long held that the capacity to control behavior is a prerequisite for criminal responsibility." *fn8

It is inescapable that the logic of appellant's argument, if valid, would carry over to all other illegal acts of any type whose purpose was to obtain narcotics for his own use, a fact which is admitted by Judge Wright in his opinion. *fn9 Appellant attempts to justify only the acts of possession and purchase of narcotics, both illegal, and both prohibited because if successfully prohibited they would eliminate drug addiction. The justification is on the basis that the addict has lost the power of control over his choice of acts. Appellant argues that the same rationale, justifying a tolerance of these two illegal acts by this court, or a strained construction of the statute that Congress really did not intend to prohibit such acts, or that it is constitutionally impermissible to prohibit such acts, would not carry over to other actions for the same purpose of obtaining narcotics for his own use.

In the case of any addict there are two factors that go to make up the "self-control" (or absence thereof) which governs his activities, and which determines whether or not he will perform certain acts, such as crimes, to obtain drugs. One factor is the physical craving to have the drug. The other is what might be called the addict's "character," or his moral standards. In any case where the addict's moral standards are overcome by his physical craving for the drug, he may be said to lose "self-control," and it is at this point, and not until this point, that an addict will commit acts that violate his moral standards. For our purposes here, we may think of such acts as crimes to obtain drugs.

The legally determinative matter under appellant's theory must be the sum or result of the two factors. Putting it in mathematical terms, if the addict's craving is 4 on a scale of 10, and his strength of character is only 3, he will have a resulting loss of self-control and commit some illegal act to acquire drugs, perhaps only an illegal purchase and possession. For a different example, let us assume a medically induced addict, whose craving is 6, but whose strength of character is 8; with him there will be no resulting loss of self-control, and presumably no illegal acts of any kind. A third example, an addict with a craving of 8, and a strength of character of 3, may result in a loss of self-control to a degree that the addict robs a bank at gunpoint to obtain money to buy drugs.

In all these examples the legally important factor is the resulting loss of self-control. Drug addiction of varying degrees may or may not result in loss of self-control, depending on the strength of character opposed to the drug craving. Under appellant's theory, adopted by the dissenters, only if there is a resulting loss of self-control can there be an absence of free will which, under the extension of the common law theory, would provide a valid defense to the addict. If there is a demonstrable absence of free will (loss of self-control), the illegal acts of possession and acquisition cannot be charged to the user of the drugs.

But if it is absence of free will which excuses the mere possessor-acquirer, the more desperate bank robber for drug money has an even more demonstrable lack of free will and derived from precisely the same factors as appellant argues should excuse the mere possessor.

In oral argument appellant maintained that there are different kinds of addicts, that is, some who are able to confine their law violation to possession and acquisition for their own use and some who will commit crimes other than possession or acquisition to feed their habits; and that it is only the latter whom we should punish for their addiction. This position of appellant is, unfortunately, logically untenable, if one accepts appellant's own rationale that we must not punish addicts for possession because of the compulsion under which they act to acquire the drugs.

By definition we have assumed crimes of two classes -- first, simple possession and acquisition, or second, greater crimes such as robbery -- both motivated by the compulsive need to obtain drugs resulting in loss of self-control. If we punish the second, we can do so only because we find free will. If free will can exist for the second, it likewise must exist for the first class. If, like appellant, one takes the position that any addict who commits crimes (i.e. robbery) to feed his habit may be punished, one is making a judgment that this addict possesses free will, that he is somehow guilty in a way that the addict who does not commit such crimes to feed his habit (other than the crimes of acquisition and possession) is not. In other words, it follows necessarily that the quality that makes this addict commit such crimes to obtain the drugs is not the compulsion of addiction and the loss of "self-control," but is something apart from his addiction -- but if we are dealing with a motivating factor other than drugs, this is another case, it is not the example called for by appellant's rationale. What the analysis just made demonstrates, even in the case of the addict-robber, is that his crime is caused by the same compulsion, his loss of self-control, due to his addiction.

Although attempted by appellant here, there can be no successful differentiation between the source of the drive, the compulsion and resulting loss of control which, appellant argues, vitiates legal accountability, hence the same compulsion would necessarily serve as the basis of the defense for each of the posited illegal acts. It is only a matter of degree. In fact, it seems clear that the addict who restrains himself from committing any other crimes except acquisition and possession, assuming he obtains his funds by lawful means, has demonstrated a greater degree of self-control than the addict who in desperation robs a bank to buy at retail. If the addict can restrain himself from committing any other illegal act except purchase and possession, then he is demonstrating a degree of self-control greater than that of the one who robs a pharmacy or a bank, and thus his defense of loss of control and accountability is even less valid than that of the addict who robs the pharmacy or the bank.


From the dissenting opinions it is not clear whether they ignore the logical inconsistency of this position, or whether the dissenters vaguely recognize the inconsistency and arbitrarily draw a line beyond which, to crimes other than acquisition and possession by a proven addict, the defense of lack of free will may not be deployed. Certainly Justice Marshall, writing for four members of the Court in Powell, declared that the limitation proposed by Justice Fortas regarding the defense of chronic alcoholism was merely "limitation by fiat." *fn10 And so it would be here.

The obvious danger is that this defense will be extended to all other crimes -- bank robberies, street muggings, burglaries -- which can be shown to be the product of the same drug-craving compulsion. Not only would the extension of the defense be on the same logical basis as the defense urged here, and as made indubitably certain in Judge Bazelon's separate opinion, but the words of Judge Wright indicate that the door would be open to another possible extension of the newly created defense not hitherto envisaged:

While these comments in Powell were offered simply as dicta, they do indicate the position of the Court. Consequently [we limit] the availability of the addiction defense to only those acts which, like mere purchase, receipt or possession of narcotics for personal use, are inseparable from the disease itself and, at the same time, inflict no direct harm upon other members of society. *fn11

We find cold comfort in Judge Wright's words.

If "mere purchase" by the addict is protected, what about "mere sale" to the same addict? Could not the sale of narcotics to a poor drug-crazed addict, driven by the compulsion of his unsatisfied needs, be defended as a humane act "inflict[ing] no direct harm upon other members of society"? Why would the supplying of narcotics by an illicit trafficker to a certified addict be any less humane, or inflict any more harm on other members of society, than the supplying of narcotics to the same addict by a licensed member of the medical profession? *fn12


1. All of this points up the wisdom of Justice Black's observations in Powell, where he reached the conclusion that questions of "voluntariness" or "compulsion" should not be "controlling on the question [of] whether a specific instance of human behavior should be immune from punishment as a constitutional matter"; his arguments also show how the so-called "common-law defense" of compulsion may be unwisely applied here:

When we say that appellant's [act] is caused not by "his own" volition but rather by some other force, we are clearly thinking of a force that is nevertheless "his" except in some special sense. [Footnote omitted.] The accused undoubtedly commits the proscribed act and the only question is whether the act can be attributed to a part of "his" personality that should not be regarded as criminally responsible. Almost all of the traditional purposes of the criminal law can be significantly served by punishing the person who in fact committed the proscribed act, without regard to whether his action was "compelled" by some elusive "irresponsible" aspect of his personality. As I have already indicated, punishment of such a defendant can clearly be justified in terms of deterrence, isolation, and treatment. On the other hand, medical decisions concerning the use of a term such as "disease" or "volition," based as they are on the clinical problems of diagnosis and treatment, bear no necessary correspondence to the legal decision whether the overall objectives of the criminal law can be furthered by imposing punishment. *fn13

Just as Justice Black turned away from the proposed constitutional rule, we spurn the proposed "common law" rule, not only because the recently created statutory scheme of dealing with narcotics addicts stands a reasonable chance of reaching the objectives of "deterrence, isolation, and treatment," but also because the particular nature of the problem of the heroin traffic makes certain policies necessary that should not be weakened by the creation of this defense. There is no compelling policy requiring us to intervene here. *fn14

2. Furthermore, if such a judgment weighing and balancing conflicting public interests and policies is to be made, it should be made by Congress, which, as we explore more fully infra, has by its activity in this area demonstrated both that it possesses more adequate facilities to deal with the problems of narcotic addiction, and that we in the judiciary are somewhat circumscribed in our activity in this area. *fn15 III. Appellant's Defense and the Eighth Amendment

To evaluate the proposed defense in light of the Eighth Amendment we review the case law, in particular, Robinson v. California (1962) *fn16 and Powell v. Texas (1968). *fn17 This review demonstrates that the case law simply does not support the position advanced by appellant.


In Robinson the Supreme Court was asked to determine the constitutionality of a state statute which, among other provisions, punished a person who was "addicted to the use of narcotics." *fn18 The appellant in Robinson had been convicted of addiction, principally on evidence of "marks and . . . discoloration [which] were the result of the injection of hypodermic needles into the tissue into the vein that was not sterile [sic]." *fn19

While the Court observed that there was a wide range of activities available to states in dealing with the problem presented by narcotics, *fn20 the Court decided that this California statute was not within that range:

This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the "status" of narcotic addiction a criminal offense, for which the offender may be prosecuted "at any time before he reforms." California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there. *fn21

The Court concluded that just as it would be impermissible to punish a person because he was afflicted with mental disease, leprosy, or venereal disease, so would it be impermissible to punish for his affliction one suffering from the illness of narcotic addiction, since

In the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. *fn22

Thus the Court held that "a state law which imprisons a person thus afflicted [by addiction to narcotics] as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment. " *fn23

There are two important possible holdings which were not made in Robinson, but which are urged by appellant here, ostensibly on the basis of Robinson. The points not decided in Robinson as appellant argues here are:

1. The language of the Court quoted immediately above presumably left it open for a state to punish the activities such as possession and use or "irregular behavior" connected with narcotics addiction, although the addiction standing alone may not be punished.

2. It is also important that the majority's opinion did not base the Eighth and Fourteenth Amendment rationale on the unconstitutionality of punishment for any "compulsion" or loss of "self-control" involved in narcotics addiction. Indeed, if anything it appears that the appellant in Robinson had not lost his self-control with respect to giving in to his craving for the drug. As Justice Clark put it in his dissent, which would have upheld the California statutory scheme, "It is no answer to suggest that we are dealing with an involuntary status and thus penal sanctions will be ineffective and unfair. The section at issue applies only to persons who use narcotics often or even daily but not to the point of losing self-control." *fn24 Furthermore, the trial judge in Robinson, in his instructions to the jury, did not have his definition turn on any compulsion or loss of self-control:

The word "addicted" means, strongly disposed to some taste or practice or habituated, especially to drugs. In order to inquire as to whether a person is addicted to the use of narcotics is in effect an inquiry as to his habit in that regard. Does he use them habitually. To use them often or daily is, according to the ordinary acceptance of those words, to use them habitually. *fn25

Standing alone, then, Robinson is no authority for the proposition that the Eighth Amendment prevents punishment of an addict for acts he is "compelled" to do by his addiction, since Robinson recognizes no compulsion in addiction. Robinson simply illustrates repugnance at the prospect of punishing one for his status as an addict.

In the case analysis it is important to keep the concept of loss of self-control separate from the definition of addiction. This is the approach taken in Robinson, so for the Supreme Court, at least, the judicial definition of addiction stops short of a loss of self-control, though it may recognize some compelling aspects of the craving for the drug. This distinction is illustrated in some of Mr. Justice Harlan's remarks made in his concurrence in Robinson :

In this case the trial court's instructions permitted the jury to find the appellant guilty on no more proof than that he was present in California while he was addicted to narcotics. Since addiction alone cannot reasonably be thought to amount to more than a compelling propensity to use narcotics, the effect of this instruction was to authorize criminal punishment for a bare desire to commit a criminal act. *fn26

In other words, addiction is the physical craving to have the drug, a craving which can arise from a number of different causes, not all of them voluntary or even self-induced. *fn27 As Justice Harlan's remarks make clear, however, it is the craving which may not be punished under the Eighth Amendment, and not the acts which give in to that craving. Furthermore, while addiction may be a "compelling propensity to use narcotics," it is not necessarily an irresistible urge to have them. *fn28 The failure in many minds to keep the concept of addiction separate from irresistible compulsion, or loss of self-control, has resulted in much confusion, as will be explored below.


The Eighth Amendment defense for chronic alcoholics advanced by some members of the Court in Powell v. Texas, that is, the interpretation that Robinson held that it was not criminal to give in to the irresistible compulsions of a "disease," weaves in and out of the Powell opinions, but there is definitely no Supreme Court holding to this effect.

1. Justice Marshall, writing for four members of the Court, *fn29 distinguished public drunkenness from Robinson, since the acts amounting to this kind of public behavior were much more than the "mere status" for which punishment was prohibited in Robinson. *fn30 Justice Marshall rejected the notion of the four dissenters *fn31 that Robinson stood for "the 'simple' but 'subtle' principle that 'criminal penalties may not be inflicted upon a person for being in a condition he is powerless to change.'" *fn32 Justice Marshall noted that in the view of the dissenters appellant's public intoxication was "'occasioned by a compulsion symptomatic of the disease' of chronic alcoholism, and thus apparently, his behavior lacked the critical element of mens rea." Justice Marshall, in disassociating himself and his three brother Justices from this view, noted that Robinson did not deal with the question "whether certain conduct cannot constitutionally be punished because it is, in some sense, 'involuntary' or 'occasioned by a compulsion.'" *fn33 He concluded simply that "criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in historical common law terms, has committed some actus reus." *fn34

2. Appellant's position seems to be that if a defendant is compelled to use narcotics due to a serious physical craving (addiction), but can acquire the narcotics with money obtained by legal means (such as relying on the labor of other members of his family), the court can find no free will on the part of the defendant, since he acts as a result of compulsion, not from choice. Indeed, so the argument goes, since the money used to buy drugs is procured through perfectly legal means, there is really no guilt involved, merely disease. Thus appellant argues that the acts resulting from addiction to narcotics must be treated in the manner that addiction to alcohol was considered in Powell.

Where the asserted analogy with Powell breaks down, however, is, first, that the acts in Powell were held to be punishable, as Justice White's separate opinion for the majority makes clear. Second, here the acquisition and possession of the addictive substance by Moore are illegal activities, whereas in Powell the "addict" induced his addictive state through legal means. Powell's violation was in actions taken later, which to four members of the Court were punishable without question, and which to Justice White were punishable so long as the acts had not been proved to be the product of an established irresistible compulsion. In Moore, however, the acquisition and possession of the addictive substance (narcotics) are themselves illegal, whether considered as initial acts causing addiction or acts resulting from addiction.

While we always start with where we are, or the present condition of the addict in this case, we cannot ignore how the defendant became an addict. The dissenters here dwell on established principles:

Thus criminal responsibility is assessed only when through "free will" a man elects to do evil, and if he is not a free agent, or is unable to choose or to act voluntarily, or to avoid the conduct which constitutes the crime, he is outside the postulate of the law of punishment. *fn35

Moore could never put the needle in his arm the first and many succeeding times without an exercise of will. *fn36 His illegal acquisition and possession are thus the direct product of a freely willed illegal act.

According to the appellant's thesis, an addict only has a choice as to the manner in which he obtains the funds (or the drugs) to support his habit; this neglects the choice that each addict makes at the start as to whether or not he is going to take narcotics and run the risk of becoming addicted to them. Although the narcotics user may soon through continued use acquire a compulsion to have the drug, and thus be said to have lost his self-control (insofar as he must take the drug regularly) due to a "disease," it is a disease which he has induced himself through a violation of the law. In contrast to the alcoholic Powell, the drug addict Moore has contracted a disease which virtually always *fn37 commences with an illegal act.

3. As a final point with regard to Powell, we find the same concern we discussed under II (supra) voiced by Justice Black: "The rule of constitutional law urged upon us by appellant would have a revolutionary impact on the criminal law, and any possible limits proposed for the rule would be wholly illusory." *fn38 We are wary of the multitude of acts which are now crimes and which might have to be excused if appellant's defense were accepted, since

If the original boundaries of Robinson are to be discarded, any new limits too would soon fall by the wayside and the Court would be forced to hold the States powerless to punish any conduct that could be shown to result from a "compulsion," in the complex, psychological meaning of that term. *fn39


Passing on from Robinson and Powell, we come to the case on which much of the present appeal is based, Watson v. United States (1970). *fn40 In Watson the appellant, a heroin addict, was convicted for violations of 21 U.S.C. § 174, and 26 U.S.C. § 4704(a), the Jones-Miller and Harrison Acts, which respectively forbid fraudulent importation and the purchase, sale, dispensation, or distribution of narcotic drugs not in the appropriately taxpaid stamped package. For all practical purposes, because of the particular evidentiary provisions of the two Acts, proof of mere possession of the narcotic is enough to convict under either, and so the crime is often spoken of as one for "possession" of narcotic drugs. This was really the crime for which appellant Watson was convicted, and although in appellant Moore's case there are powerful elements of trafficking (discussed under I, supra), he contends that he was guilty of the crime of possession, and of possession for his own use. Among the other arguments made in Watson, as here by appellant, was the proposition that after Robinson it is constitutionally impermissible to punish a narcotics addict for possession of narcotics which he has only for his own use.

While discussing this defense, this court in Watson believed that the record was not adequate properly to support such a defense, and the case was decided on another ground, i.e., that the two-prior-felony disqualifying provision of Title II of the Narcotic Addict Rehabilitation Act of 1966 unconstitutionally barred Watson from possible beneficial treatment under that Act. *fn41 Judge McGowan's discussion in the court's opinion to the effect that "if Robinson's deployment of the Eighth Amendment as a barrier to California's making addiction a crime means anything, it must also mean in all logic that (1) Congress did not intend to expose the non-trafficking addict-possessor to criminal punishment, or (2) its effort to do so is as unavailing constitutionally as that of the California legislature" *fn42 is therefore dicta. These dicta have been very persuasive, particularly in light of the explicit framework which Judge McGowan set forth for the raising of the defense, *fn43 and it has occasionally been successfully used in the trial courts of the District. *fn44 The case at bar, however, is the first time that we have been in the position to change these dicta into a holding, and to rule conclusively that Robinson represents a constitutional bar to conviction of a non-trafficking addict-possessor.

As made amply clear earlier, we believe Robinson supports no such determination. Any widening of the Eighth Amendment rationale should come from the Supreme Court, *fn45 hence we are not prepared to hold that appellant, if he were a mere addict-possessor would have an Eighth Amendment defense. Despite all their labors through the divergent opinions in Robinson and Powell, the dissenters here are able to derive nothing more certain than that we should interpret the federal narcotic statutes in such a way as to "avoid serious doubts of their constitutionality." *fn46 Although we would phrase the issue differently, we are in accord with Judge McGowan's desire that the Supreme Court "be effectively entreated to explain, more fully than it has done so far, how it is that California may not, consistently with the Federal Constitution, prosecute a person for being an addict, but the United States can criminally prosecute an addict for possession of narcotics for his personal use." *fn47 Given the demonstrated divergence and inconclusiveness of the Supreme Court's views, it is not incumbent upon us to force this explanation by widening the Eighth Amendment defense, but rather to leave it where the Supreme Court has left it until it chooses, perhaps by this appellant's prompting, to make such a holding.

Our hesitancy to rush in where the High Court has feared to tread is reinforced by this court's opinions in Watson itself, which show that it is not inconsistent to excuse the addict in Robinson on Eighth Amendment grounds, but to deny such relief to the addict-possessor in Watson and Moore. As Judge McGowan observed, and as Judge Bazelon concluded in his opinion for the three-judge panel which preceded en banc determination in Watson, the majority in Powell "unmistakably recoiled from opening up new avenues of escape from criminal accountability by reason of the compulsions of such things as alcoholism and, presumably, drug addiction -- conditions from which it is still widely assumed, rightly or wrongly, that the victim retains some capacity to liberate himself." *fn48 Thus it would appear that according to the Supreme Court, "rightly or wrongly," an addict is not under an "irresistible compulsion" to possess narcotics, but retains some ability to extricate himself from his addiction by ceasing to take the drugs. Thus it would certainly not be "cruel and unusual punishment" to convict him for possessing the narcotics, since the decision to possess is one that he makes at least in part of his own volition, especially at the beginning of his habit.

On the other hand, once a person has taken a certain amount of narcotics his body develops a craving for more (this, of course, is "addiction" as Justice Harlan defined it),49 a physical craving which he cannot prevent, and for which, the Supreme Court has said in Robinson, he may not be punished. Taking into account this view of addiction, which view seems to us to be the one taken by the Supreme Court in Robinson, it is not inconsistent to say that an addict may not be punished for his craving (his "addiction") but may be punished when he makes the decision not to subject himself to the admittedly painful process of withdrawal, gives in to his craving and commits acts in violation of law and which continue his addiction.

Far from being "cruel and unusual punishment," the rationale of punishment for such acts has been set forth in Robinson and Powell, especially in the opinions of Justices Black, Harlan, and Marshall.50 There is no Eighth Amendment defense for the addict-possessor. IV. Congressional Intent to Punish Addict-Possessors


Aside from the logical fallacies in appellant's argument outlined above, the line which he asks this court to draw concerning the mens rea involved in drug addiction may not be drawn by this court for other, perhaps more important, reasons of policy and power. The choice that appellant would have us make is the reverse of the choice made by early English judges in carving out an exception to the common law defense of duress; they declined to apply it to the crime of murder.51 The policy judgment made by these common law judges was that, because of the great value which the common law placed on human life, one should risk one's own life rather than take that of an innocent.

The problem with our making the choice that appellant urges is that, unlike common law judges who were perhaps the major legal policy-making body before the rise of the parliamentary system as we know it today, this court is not the appropriate body to make such a policy judgment. Congress is now the best forum with resources adequate to determine the implications of such a policy, to evaluate the social, scientific, and psychological premises underlying such a policy, to make the appropriate rules, and to establish the necessary mechanisms (including the funding) to carry them out.


We can best approach this problem of the role of Congress and the courts here by now considering the possible defense mentioned but not recognized by Judge McGowan in Watson,52 urged by appellant here, and accepted by Judge Wright in his opinion.53 It is argued that Congress never intended for the provisions of federal statutes making it a crime to possess narcotics to apply to addicts who possess narcotics for their own use. We cannot subscribe to this argument. Never, in many different narcotics control acts and their amendments, dating back to 1909, did Congress say this. What justification would this court have for writing it into law now? Only a clear constitutional mandate could call for such action on our part. For this court to find such would demonstrate a perception the Supreme Court has not achieved. As is obvious from Judge Wright's dissent, if there is one thing certain, it is that the constitutional question is far from clear.

Furthermore, the two latest congressional pronouncements are squarely contrary to the statutory interpretation appellant urges here. As Judge Reilly of the District of Columbia Court of Appeals noted in Wheeler v. United States (1971),54 Congress made it clear that in enacting the District's "Rehabilitation of Users of Narcotics" statute55 it did not mean to exclude from criminal punishment persons addicted to the use of narcotics, at least in the District of Columbia. Congress said in the preamble to that Act:

The Congress intends that Federal criminal laws shall be enforced against drug users as well as other persons, and sections 24-601 to 24-611 shall not be used to substitute treatment for punishment in cases of crime committed by drug users.56

If Congress had intended that addicts in the District of Columbia should not be prosecuted for the crime of possession, Congress would have qualified § 24-601 to that effect. Congress had the problem of drug users (addicts), their punishment and treatment, squarely before it, and declined to make any distinction as to what acts constituted a crime by an addict or non-addict. This conclusion is virtually inescapable, as Congress defined "drug user" (as that term is employed in the preamble just quoted) to include " any person, including a person under eighteen years of age, . . . who uses any habit-forming narcotic drugs so as to endanger the public morals, health, safety, or welfare, or who is so far addicted to the use of such habit-forming drugs as to have lost the power of self-control with reference to his addiction."57

Appellant argues for rejection of this interpretation of the "Rehabilitation of Users of Narcotics" statute, on the theory that to accept it would be to assume "that Congress enacted a complex statutory scheme for treatment of narcotic addicts which it never intended to be utilized," since under this interpretation addicts could be punished for possession, and possession being a "criminal act" under § 24-601, all addicts thus would have to be punished criminally and not be treated under the rehabilitation statute.

With all respect, we submit that such a reading of the statute, which leads to its rejection of an intent to punish addict-possessors, is simply incorrect. We read the provision that says the statute shall not be used "to substitute treatment for punishment in cases of crime committed by drug users" as meaning that, when the Government is able successfully to prosecute any drug user for a criminal offense under any federal statute, it may do so. The Rehabilitation Act is NOT the only statute applying to drug users; if the Government has the evidence, it may invoke any applicable criminal statute. As Judge Wright in his dissent points out, drug use among addicts and others in some areas has reached epidemic proportions, and the difficulty of amassing evidence and securing convictions for possession and other crimes committed by drug users is in many instances insurmountable. For many of these drug users the rehabilitation statute presents a feasible and humane method of treatment which the Government may pursue through the securing of evidence of such persons' addiction,58 and this may be particularly appropriate where, for any of a multitude of reasons, criminal prosecution under other federal statutes is not called for. On the other hand, Congress made it clear that this procedure shall not be used in the case of some persons, explicitly those "charged with a criminal offense, whether by indictment, information or otherwise, or . . . under sentence for a criminal offense, whether [they are] serving the sentence, or [are] on probation or parole, or [have] been released on bond pending appeal."59

We do not view this rehabilitation statute as evincing intent not to punish addict-possessors, but merely as one more attempt by the Congress to reach an accommodation between its avowed twin aims of eliminating the traffic in harmful narcotics and rehabilitating those damaged by that traffic.60

While it is true that other statutes, most notably the Narcotic Addict Rehabilitation Act of 1966, evince a legislative purpose that after addicts are prosecuted they should be treated medically whenever possible rather than placed in prison, it remains true that D.C. Code 24-601 et seq. may not be used to substitute treatment for punishment, and we must assume that the congressional intent spelled out in that civil commitment statute to enforce the federal criminal laws against drug users (i.e., to prosecute them) remains, unless it is subsequently repudiated by Congress.

Far from overruling this manifestation of congressional intent, just as it has done in the past, Congress has continued to enact legislation under the terms of which addicts and all others can be and are being prosecuted for narcotics possession and trafficking.61

The fact that not one of the numerous congressional enactments makes exception for addicts, and that many of them were passed when there were cases of conviction of narcotics addicts for narcotic offenses on the books, may be taken to indicate that Congress intends for addicts to be prosecuted like anyone else. See Sutherland, Statutory Construction 4510, 5101, 5103-5105, 5107, 5109 (3d ed. 1943). It is argued that it is equally likely that Congress desired to remain neutral on this issue.62 In light of the strong sentiment of many members of Congress against all drug users, of which Congress was most justly aware63 we refuse to impute such motives to Congress.

Thus while Congress has not explicitly provided that addiction shall not be an affirmative defense to a charge of possessing illicit narcotics, the congressional intent to prosecute drug users expressed in D.C. Code § 24-601, buttressed by Congress' legislative activity both before and after that expression of legislative intent, demonstrates that Congress has preempted this court's authority to create a common law defense. It is hornbook law that when the legislature has spoken, what might have been the common law is altered, and judges (including this court) may not change the law back because they would have favored a different policy, unless there is a constitutional mandate, which, of course, would operate irrespective of judicial preferences.

Furthermore, although this is of limited help in determining what the law was when appellant was arrested, the latest narcotics legislation, the Comprehensive Drug Abuse Prevention and Control Act of 1970 (passed 27 October 1970),64 contains two highly significant provisions relevant to congressional intent and policy in the area of narcotics control. First, the statute has penal provisions making it "unlawful for any person" to commit the proscribed acts; second, § 844 in particular makes it unlawful "for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order from a practitioner . . . ."65 The Comprehensive Drug Abuse Prevention and Control Act provides a much lighter penalty for simple possession (and for the first time explicitly makes simple possession an offense), but this by no means suggests that possession by an addict did not give rise to an offense before the statute. On the contrary, we find the conclusion inescapable that Congress rejected the notion of excusing addicts from guilt for possession, and instead decided to reduce the penalties for simple possessions across the board. Now to create the defense appellant seeks in the face of the explicit prohibition against possession by any person in 21 U.S.C. § 844 would be directly contrary to the expressed will of Congress.


In his brief appellant makes much of the apparent analogy between the statutory scheme dealing with the rehabilitation of alcoholics analyzed in Easter v. District of Columbia,66 which resulted in this court's allowing alcoholics a defense for public drunkenness, and the statutory scheme in the District for dealing with drug addiction. Judge Wright's opinion also relies on the analogy to Easter. The implication, of course, is that we should use the same reasoning to find a defense for the addictpossessor.67

Even if we were persuaded by the analogy, and we are not, we would certainly not grant appellant's defense on the theory that this will pressure Congress into providing the facilities for treatment of the many addicts who could then only be civilly committed. Aside from impropriety, this tactic was resoundingly unsuccessful in the Easter case, and we have no reason to believe it would fare better here. Immediately after Easter, it appeared that the facilities were simply not forthcoming and the average chronic alcoholic was worse off than he was pre-Easter, as demonstrated by a noticeable decline in the health and well-being of the District's chronic alcoholics.68


But apart from any aversion to pressuring Congress in this manner, there are significant and difficult differences between the problems of chronic alcoholism and narcotics addiction. In dealing with the problem of alcoholism we have what is, after all, a single aim -- the rehabilitation of alcoholics.69 With narcotics addiction, however, we must take account of at least two aims, the first being (like alcoholism) the rehabilitation of addicts, but the second (quite different) being the complete elimination of the addictive substance. The existence of these two policies is particularly troubling where their implementation may be contradictory. For instance, while the policy of rehabilitation might well be served by giving addicts a defense to possession for their own use, and instead providing mandatory hospital treatment, the possible penalties for possession help the police by providing them a means to use their prosecutorial discretion to enlist addict-informers to aid in ferreting out the wholesale sources of the drug traffic, and the threat of possible punishment persuades some addicts to undertake rehabilitation under such schemes as the Narcotics Addict Rehabilitation Act, which they might otherwise choose not to undergo.

Faced with the need to reconcile these two aims, of eliminating the drug traffic and the rehabilitation of addicts, and under great pressure from advocates pushing for one or the other aim, Congress has reached a reasonable accommodation through such means as the Narcotics Addict Rehabilitation Act of 1966 and the Controlled Substances Act of 1970. Judge Wright's dissent asserts: "But punishment of addict possessors is neither a reasonable nor a necessary means to achieve this goal."70 If the issue is thus placed on pragmatic grounds, whose judgment is entitled to prevail, that of Congress or of this court?71

Aside from the fact that this construction of the law is neither constitutionally compelled nor reflects the intent of Congress in the legislation on the books, if we recognize that the use of narcotics is an evil -- and it is, opium is a killer72 -- then the adoption of a policy of interpretation which removes criminal penalties and sanctions from the mass use of opiates is just as misguided as the individual's use of opiates for his own particular problems.

One startling fact, and probable consequence, of accepting the line of reasoning advanced by appellant lies buried in Judge Wright's dissent on page 1227. In describing three categories of narcotics addicts, Judge Wright states:

The second category is comprised of those addicts who are employed in the medical and paramedical professions. The rate of addiction among these professions appears to be almost 30 times greater than that of the general population, but since these individuals have ready access to drugs such as morphine and demerol, they frequently escape the need to pay the exorbitant prices for their supplies that lead other addicts to crime.

This has been a well-known fact for many years, that easy access through legal channels, as can be had by doctors, nurses, pharmacists, hospital orderlies, etc., leads inevitably to a tremendous rate of narcotics addiction. These are not a class of people who can be termed culturally or economically deprived in any way. They do not have associations with criminals nor with the lower economic and social classes. Yet the mere fact of easy access to the drugs has created an addiction rate 30 times that of the general population. Viewed pragmatically, the cited language offers a powerful argument in favor of never removing the criminal penalties for possession of drugs, an argument for never legitimatizing possession.

We have seen civilizations which reached the carpet slipper stage, and slowly drowsed away beside the fading fires of genius. Ours may be the first civilization to speed the process by the deliberate injection of drugs into our culture; without waiting for the natural sleep of old age, we hasten to evade our feared crushing burdens by permitting those who crave it to slip into an opium haze.

Congress has not ceased to attempt to fashion new ways to deal with these problems of narcotics addiction;73 hence, on the shaky foundations -- constitutional, precedential, interpretative -- advanced by appellant, it would be unthinkable to write our own new law that might undercut some of these congressional efforts.74 We are supported in our conclusion by Judge Leventhal's eloquent and exhaustive analysis of Congress' intent in passing the various enactments discussed above and the consequent need for judicial restraint.

Our reluctance to make new law is not, as Judge Wright appears to suggest, "to shut our eyes in ignorance and allow injustice to persist in blind imitation of the past."75 Our course of action is simply to leave the innovations in this area to a body more capable of making decisions on them than are we. The extremely difficult and complex questions involved in the problems of rehabilitation of addicts and elimination of the illicit drug traffic are best solved by the kind of extended debate and investigation possible in the legislature. Judicial modesty and restraint may not make the headlines, but they have their place. V. Conclusion

The writer and Judges MacKinnon and Robb, concurring in this opinion, would simply affirm both appellant Moore's convictions and the sentences he received. However, this view does not command a majority of the court. Judges McGowan and Leventhal would likewise affirm Moore's convictions, but would remand for the District Court to give further consideration of NARA disposition.

Therefore, there being a majority of five judges voting to affirm all convictions, but there being no initial majority for either of the three proposed methods of acting on this appeal, the writer and Judges MacKinnon and Robb acquiesce in the method of affirming Moore's convictions on all counts, vacating the sentences imposed, and remanding to the District Court for resentencing. In so doing, we intimate no dissatisfaction with the sentences originally imposed by the District Judge nor do we suggest his ultimate disposition of Moore's case. IN AGREEMENT

LEVENTHAL, Circuit Judge; with whom McGowan, Circuit Judge, concurs.

This is an appeal from convictions under 21 U.S.C. § 174, 26 U.S.C. 4704(a), following a police raid on, and arrest of appellant Moore in, a hotel room being used for a heroin capping operation. The verdict was permitted to rest on evidence that Moore was in possession of heroin. Appellant's contention is that he was improperly precluded from proffering as a defense that he was a heroin addict, without the power of self-control with respect to the drug.

The case was put en banc to consider matters not resolved in our en banc opinion in Albert Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970). After consideration of pertinent principles of common law jurisprudence, constitutional doctrine, and statutory provisions, including the 1970 law passed by Congress subsequent to Watson, permitting and implementing a disposition of narcotic addicts through probation conditioned on treatment, we conclude the judgment of conviction should be affirmed and the case remanded, in the interest of justice, see 28 U.S.C. § 2106, for further consideration of a disposition under the Narcotic Addict Rehabilitation Act .

In Watson we started to ponder difficulties posed to us by the iron rigidity of inexorable sentences for narcotic addicts chargeable only with possession or purchase for personal use. But in Watson we did not finalize an approach in terms of validity of conviction, in view of the record as presented, and we focused on dispositional alternatives -- NARA.

In the present case, we have an outright attack on conviction, forcefully presented. The question is presented as a form of mens rea defense that negatives criminal responsibility, and would require society to proceed only by way of civil proceedings. If we had been faced with the rigidity that prevailed in the 1950's, with minimum prison sentences without respite, we might well have joined in an opinion that recognized the defense, either on common law grounds or constitutional considerations or some combination of these.

While our opinion parallels that written by Judge Wilkey in some ways, the differences in approach are not insignificant. Our opinion reflects a process -- of reexamination of an approach previously, if tentatively, indicated in Watson -- in which the doctrinal factors have not been as cogent as our examination of, and increasing awareness of the limitations in, the technical knowledge concerning crucial aspects of the narcotic addiction problem. This is a thicket, not impenetrable we hope, but one that requires tough and slow going, and something different from a sharp scythe of judicial doctrine to cut brush. The proposed broad psychological drug dependence defense would not only require an extension of conventional judicial doctrine, as we point out, but an extension that is inappropriate in view of the problems of verifiability rooted in the inadequacies of our knowledge. Our conclusion, that at the present juncture justice neither compels nor warrants that kind of extension of judicial doctrine, is based in critical degree on our detailed study of the successive steps taken by the Congress in recent years, its heeding of expert voices focusing on its past mistakes, and its provision for research and continued reexamination. In that context, we think the ultimate problems of law and policy should be addressed by the Congress without judicial intrusion at this time.

Our conclusion that the addiction defense should not be recognized, even for drug possession offenses, at the present juncture, does not mean that we think this defense, is contrary to sound policy, but rather that the issues are such that the ultimate consideration of the problems of law and policy require the attention of the legislature. While a court cannot abdicate its judicial function of assessing the validity of what the Congress has done and intended, the court must also take into account the uncertain state of present knowledge, and the salutary deference to Congressional latitude in finding a way to cope with the problems of heroin addiction and addiction-related crimes.

Since it is not necessary to recognize a narcotic addiction (or dependence) defense to secure just dispositions in the future, given the provisions of the 1970 law, we see no compelling reason to inject the defense into convictions governed by the prior law. In a way this is a corollary -- by way of converse -- to the Supreme Court's modern doctrine of retroactivity, or should one say prospectivity. Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965). The fact that judicial decisions contemplate changes for the future is good sense, for the mistakes of the past are left to the past and the administrative burden of this correction is not permitted to lay a dead hand on adaptation to modern perceptions and needs. Conversely, Conversely, when judicial intervention is not necessary to assure justice for the future, sound judgment cautions against any approach of judicial overhaul.

In the large, this approach permits the courts to focus on each individual's condition in terms of disposition, rather than guilt of the substantive offense. This approach has many strengths. It has particular strengths for the future in view of the probation possibilities under the 1970 legislation.

There is an awkward junction point for defendants like appellant whose offenses, under prior legislation, were reached by sentences imposed prior to May 1, 1971. Serious questions of fairness are raised by the unavailability of either an addiction defense or the range of dispositions made possible by the 1970 Act. To some extent a court must be satisfied if it sees a trend in improvement of justice. As to the particular case, we think the appropriate disposition is to remand the case for further consideration of the possibility of disposition of appellant within the structure of NARA.

The path we have found was not clearly marked. We have done much soul searching, with reexamination of assumptions. Ideally, we should have preferred to write an opinion half as long and twice as crisp. But this was a case where the picture emerged as in a mosaic, after the numerous tiles were sorted and laid out. We present our views with full appreciation of the strengths of the differing views presented by our colleagues. I. FACTS OF OFFENSE, AND DISTRICT COURT CASE RESOLUTION

Prosecution Evidence

An informant advised the police of heroin sales being made in the Warren Hotel by "Crip Green" (room 15) and "Jumbo" (room 17), and made buys on January 25 and 26, 1970, under police supervision. Warrants were obtained, and executed on January 29. When Officer Daly entered room 15 at about 7:00 p.m., he found appellant Moore and another man in circumstances permitting an inference by police and jury of appellant's possession of narcotics on a bed.1 The evidence would also, we think, have justified a finding that appellant was a participant in the capping operation, as the prosecution contended, but this was denied by appellant and the case was not put to the jury on that basis. Moore and his companion were arrested and searched; 50 capsules of mixed heroin were found in Moore's trouser pockets. Moore was charged on two counts -- under the Jones-Miller Act of 1909, 21 U.S.C. § 174 (unlawfully imported substance) and under the Harrison Act, originally enacted in 1914, 26 U.S.C. § 4704(a) (package not tax-stamped) -- as to the heroin on the bed, and two additional counts on the drugs in his pockets.

Theory of Defense

The theory of the defense, referred to as his Watson defense, is that guilt cannot be established by proof of possession by a non-trafficking addict, that this would be inconsistent with (a) Congressional intention, and (b) constitutional principles, particularly as developed in Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962). The trial court rejected this so-called Watson defense, first by denying defendant's motion to dismiss the indictment, and later by excluding evidence and denying requested instructions.

Defense counsel proffered, through the testimony of Dr. Harold Kaufman, a psychiatrist on the staff of St. Elizabeths Hospital, heard by the court out of the presence of the jury, that appellant had a compulsion to inject heroin and therefore to possess heroin illegally, that appellant suffered from drug addiction, and that this was not a mental disease but a "disorder." Dr. Kaufman's proffered testimony is amplified below (see fn. 11 and text thereto). It suffices, for present purposes, that defendant was not claiming that he was under the pharmacological duress of "withdrawal" at the time of the offense.2 The claim rather focused on his psychological compulsion to inject heroin.

The court ruled there was no defense of non-responsibility on ground of narcotic addiction, except as part of a defense of insanity. The insanity defense was negatived by Dr. Kaufman's own testimony, and the proffer of his testimony was rejected. Defense counsel decided not to introduce further evidence.

The court gave standard instructions on narcotic offenses, and a charge covering constructive possession. He charged: "It is not a crime to be a narcotics addict, nor is the use of narcotics, standing alone, a crime." The court declined an instruction on appellant's Watson theory, and also apparently, appellant's requests for a "mens rea" instruction and an instruction defining addiction.


On February 24, 1971, the jury found Moore guilty on all counts. On February 26 the court entered an order committing defendant for examination pursuant to Title II of the Narcotic Addict Rehabilitation Act of 1966 , 18 U.S.C. § 4252. A notice of appeal was filed March 8, 1971.4 On April 13, 1971, the NARA staff at Danbury Federal Correctional Institution reported to the District Court that Moore "was an addict, both physically and psychologically dependent on heroin" but was not likely to be rehabilitated by treatment.5

At the sentencing proceeding, held June 14, 1971 after the brief on appeal had been filed in this court by the appellate counsel appointed May 4, defense trial counsel submitted that Danbury's conclusion did not mean appellant is an unwilling patient or one who does not want a cure, but reflected the fact that Danbury uses a complete abstinence program and not the methadone method of treatment, with which Mr. Moore had been cooperating. When the trial judge sought confirmation from appellant concerning his criminal record, defense trial counsel conceded he had a long criminal record but submitted that it was "the record of a man forced by his addiction to commit these various offenses."6 The court sentenced appellant to concurrent terms of 6 years, and 2-6 years.7 II. CONTENTIONS FOR REVERSAL

A. By Counsel for Appellant

Counsel representing appellant in this court are signally well-informed8 and have made an effective presentation, as follows:

1. Appellant is an addict -- as appears from his own testimony that he was using an average of $60 per day of heroin9 at the time of the offense; Officer Daly's testimony that appellant was an addict; a 1969 NARA report to a judge of the then D.C. Court of General Sessions; and the April 13, 1971 NARA report of the trial judge. It was proffered that Dr. Kaufman would testify that appellant suffers, not from a mental illness, but from a mental disorder of a special character called "drug addiction," that he is subject to "drug dependence of morphine type" as defined by the World Health Organization,10 and that appellant was an "old addict," i.e., one who continuously had not only a physiological craving but also a psychological compulsion to inject heroin.11

2. Basic common law principles of criminal responsibility and capacity entitle a defendant to show that he is "so far addicted to use of habit-forming narcotic drugs as to have lost the power of self-control with reference to his addiction" thus rendering his drug-related actions "involuntary."

3. Neither the statutes charged in the indictment, nor the Controlled Substances Act of 1970 preclude application of these basic principles.

4. If the statutes do preclude such application, then the Eighth Amendment -- which embodies the same core principles or morality -- bars appellant's conviction, under Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417, rehearing denied, 371 U.S. 905, 9 L. Ed. 2d 166, 83 S. Ct. 202 (1962), and Powell v. Texas, 392 U.S. 514, 20 L. Ed. 2d 1254, 88 S. Ct. 2145, rehearing denied, 393 U.S. 898, 21 L. Ed. 2d 185, 89 S. Ct. 65 (1968).

5. Appellant concludes (Br. 102):

. . . The compulsive acts inherent in a disease condition are no more blameworthy than having the disease itself. It is as barbarous to punish the one as the other. . . . While it is cruel and unusual to punish an addict for the acts inherent in his addiction, it certainly could not be argued that adequate and appropriate rehabilitative treatment, including withdrawal from heroin, is anything but humane and the preferred approach. In short, Appellant does not urge that an addict has a constitutional or any other legal right to purchase and possess heroin for injection.

B. By Amicus Curiae

A reflective brief filed, with leave of court, on behalf of the Washington Area Council on Alcoholism and Drug Abuse , supports the jurisprudential argument of appellant's counsel, and further submits:

Our law enforcement forces are not equipped to deal with criminal behavior on the scale generated by the thousands of addicts, 17,000 officially estimated to reside in the District, who are daily (a) violating the narcotics laws and (b) engaged in other criminal activity to support the narcotics habit. The assignment of principal responsibility for dealing with drug addiction to the criminal justice system, instead of institutions better suited to deal with addiction, has produced a failure that has been expensive and intolerable to the community.12

The judicial system is clogged and distorted. A 1971 study, conducted by an official of the D.C. Bail Agency, indicates that of all defendants charged with crime in the District of Columbia, approximately 50% have an indication of narcotics use, and of these 40% were charged solely with narcotics offenses, primarily possession. Even the select group released on personal recognizance show a recidivism rate for addicts, of 24%, almost twice the rate for all other offenders. However, addicts released on condition of treatment at D.C.'s NTA had a recidivism rate less than half that of other addicts.

The WACADA Council agrees that the criminal justice system should hold addicts who commit non-drug crimes, though with "treatment rather than simple incarceration," but submits it should not reach mere possessors of drugs, and thus burden public facilities without any benefit in deterrent or rehabilitative effect. A defense of lack of power to control his drug behavior would permit treatment under, e.g., the 1953 D.C. Hospital Treatment Act, 24 D.C. Code § 601 et seq. (1967), by institutions developed and designed to deal with drug addiction.

The Council sees a paradox, but no inconsistency, in its position that addicts should not be held criminally responsible for actions necessary to satisfy addiction, while rehabilitation centers are trying to make addicts bear more responsibility for their welfare and behavior to others, including crimes and drug behavior. While the Council would prefer a simple statutory exemption, in the situation as it exists "the result we seek must come about within the context of the common law principles of 'responsibility.' So be it. We dislike the means, but we are convinced that the present situation is desperate, and the consequence of its continuation unacceptable. We therefore urge the Court to hold that Raymond Moore and others similarly situated may present the defense of their addiction . . . [as] the necessary first step13 in the process of making the criminal justice system the instrumentality for identifying addicts so that they may be properly treated. . . . The consequence of not confessing to the criminal law's inability to control drug addiction is that the criminal process becomes part of the problem, rather than part of the solution." (Brief at 23-24). III. THIS CASE SHOULD BE DECIDED IN THE CONTEXT OF EVOLUTION OF

A. The Focusing of Our Inquiry on the 1970 Law

The Jones-Miller Act and Harrison Act did not prohibit possession of narcotics as such, but under the provisions frequently referred to as "possession" offenses, proof of possession sufficed to sustain conviction of importation, or of purchase in a non-stamped package.14

These laws were repealed by the Controlled Substances Act of 1970, P.L. 91-513. That act wrought three significant changes. First, it expressly prohibited simple possession of narcotic drugs as controlled substances, see § 404 (a), 21 U.S.C. § 844. Second, it made that offense a misdemeanor, sharply reducing penalties that might be applied to persons on mere evidence of possession. Most important, Congress repealed the provision, included in the Price Daniel Act of 1956 (note 18, infra) that had precluded probations or suspended sentences as to most convictions under the Jones-Miller and Harrison Acts, see 26 U.S.C. 7237(d). Probation is now prohibited only in case of a "continuing criminal enterprise." 21 U.S.C. § 848.

Appellant's counsel submit that his contentions rest on broad principles which require the same disposition on the merits as to prosecutions under both the earlier laws and the 1970 law. Counsel have urged us, in effect, to consider the conviction as if it were under the 1970 law. They make no argument based on the particular provisions or earlier history of the prior statutes. We think it appropriate to broadly consider applicable principles and Congressional intention in the light of the 1970 law. In short, the validity of appellant's conviction will be appraised as equivalent in all material respect to one entered under the 1970 law for knowing possession.

We are aware that this is somewhat unusual, particularly since the Supreme Court has recently held, in Bradley v. United States,15 that the 1970 law's provision permitting the use of probation henceforth was accompanied by another provision precluding its use for offenses committed prior to the effective date of the 1970 law. However, on focusing on the defense in issue, we have come to the conclusion that while there are occasional legislative and judicial statements that might have been seized on as indications that the earlier laws were not intended to be applicable to persons possessing or purchasing heroin for their own use, these were essentially insubstantial wisps -- which would, incidentally, have also excluded mere users who had not lost "control." As to the lack-of-control issue, we conclude that even in the 1970 law, with its more moderate approach, Congress did not intend to provide for the kind of drug dependence defense appellants have urged. The developments of the 1970 law round out the picture, assuring us that the injection of a drug dependence defense as to prosecutions under either the prior laws, as they fade from view, or the 1970 law, would be an impermissible judicial interjection. We develop in subsequent parts of this opinion the reasons why we do not believe that the courts should develop such a defense as an extension of the general jurisprudence that provides the setting for criminal prosecutions. As to the issue of Congressional contemplation, the fact that we glean its contours in large measure from an examination of current developments in narcotics legislation broadly considered, is, we think, a sound approach for ascertaining legislative intent.16

B. The Increasing Severity of the Legislation of the 1950's

Understanding of pertinent Congressional intent will be aided by first recalling the Federal narcotics legislation of the 1950's, laws that have been characterized as the turning of the screw.

The mandatory minimum, no probation, no-parole provisions of the Federal laws were not in the original Jones-Miller and Harrison Acts. These features were installed by amendment in 1951 and 1956, in reaction to the rising tide of drug abuse.

The Boggs Act of 1951, P.L. 82-255, 65 Stat. 767, placed a two-year minimum sentence on convictions under the Jones-Miller and Harrison laws. The Senate Report deemed prevailing sentences unequal to the task of stemming drug abuse.17 "It would appear . . . that the punishment which has been afforded narcotic law violators has not been an effective deterrent."18

The Price Daniel Act of 1956, P.L. 84-728, 70 Stat. 567, raised the minimum penalty for a violation of the Jones-Miller law to five years, and in addition, introduced the no-probation provision codified at 26 U.S.C. § 7237(d).19 The House Report stated: "Drug addiction is not a disease."20 It evidenced considerable optimism that increasing penalties would cope with the drug problem. It claimed the 1951 penalties had reduced narcotic traffic,21 that illicit traffic continues in "problem areas where leniency with respect to sentencing of convicted traffickers is an established pattern in the courts."22 It recommended increasing severity in sentences as justified by "the factual evidence proving the deterring value of severe penalties for narcotic and marihuana law violations."23

C. The Reassessment of the 1960's

The 1960's witnessed a continuing reassessment of approach, and an increasing realization and acceptance that the Government could not satisfactorily cope with the narcotic drug abuse problem by concentrating on law enforcement activities and a theory of deterrence, that there was need for removal of mandatory terms and reestablishment of probation and parole authority, for recognition of addiction as beset by disease aspects that could respond in some ...

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