UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Appeals from the United States District Court for the District of Columbia.
Bazelon, Chief Judge, Tamm and Leventhal, Circuit Judges. Bazelon, Chief Judge, concurring.
This is an appeal from a judgment sentencing each appellant to a five-year sentence of imprisonment following a conviction on Count 2 of the indictment, for receipt and concealment of narcotic drugs, on or about January 13, 1971, in violation of the Jones-Miller Act, 21 U.S.C. § 174. The appellants were acquitted on the other counts, including Count 1, which charged a violation of the Harrison Act, 26 U.S.C. 4704, in the purchase, sale and distribution of heroin.
*fn1. The first issue on appeal is the claim of error in instructions under the Jones-Miller Act. The proof was possession of narcotics (denied by appellants) and the instructions advised the jury on inferences that may be drawn from possession. The instructions are particularly challenged on the issue of knowledge of importation. In United States v. Cox, 139 U.S.App.D.C. 264, 265, 432 F.2d 1326, 1327 (1970), this Circuit adopted the Peeples charge, United States v. Peeples, 377 F.2d 205 (2d Cir. 1967), requiring the court to instruct the jurors to acquit the defendant unless satisfied that the defendant knew the narcotic was imported. We have since stressed that "trial courts must in the future adhere to the requirements of United States v. Cox," supra. United States v. Haywood, 146 U.S.App.D.C. 401, 403, 452 F.2d 1330, 1332 (1971).
The trial court's instructions on the Jones-Miller Act offense,1 were sufficient to "provide an accurate, albeit less emphatic, statement of the law." United States v. Haywood (supra) 146 U.S.App.D.C. at 403, 452 F.2d at 1332. The jury was instructed that knowledge was an essential element of the offense -- knowledge both that the substance was a narcotic, and that it had been proved beyond a reasonable doubt, although the jury could draw an inference of knowledge from possession. This instruction was given prior to our decision in Haywood and therefore is not subject to the strict caution of that opinion. Haywood's prospective vigor, however, is not undercut by our ruling.
*fn2. A remand is ordered, however, in view of the other aspect of the case, wherein appellants invoke the Eighth Amendment. We do not accept their contention as presented by counsel but the developments in applicable jurisprudence, including decisions rendered since the case was briefed and argued, make a remand appropriate.
The legal framework for considering appellants' constitutional contentions must begin with our decision, in United States v. Williams, 143 U.S.App.D.C. 16, 442 F.2d 738 (1970), rejecting the broad contention that the five-year mandatory minimum sentence imposed by 26 U.S.C. 7237(d) is in and of itself a violation of the Eighth Amendment. But we note that Williams was a case that remanded for consideration of Title II NARA disposition, 18 U.S.C. § 4251 et seq. That result followed from
the fact that the District Court, in adjudging sentence, had added the recommendation that appellant "be treated for narcotics addiction," as well as the fact that the defendant was covered by our holding in Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970) (en banc) that it was a violation of equal protection to exclude offenders from NARA treatment "who had been convicted of a felony on two or more prior occasions."
Under Bradley v. United States, 410 U.S. 605, 93 S. Ct. 1151, 35 L. Ed. 2d 528 (1973), these defendants do not have available to them, for an offense committed in January 1971, the provisions which became effective May 1, 1971, by virtue of the Comprehensive Drug Abuse and Control Act of 1970, P.L. 91-513, which repealed the prior prohibitions on probation and parole, and permitted probation to be conditioned on treatment for addiction. See United States v. Moore, 486 F.2d 1139, 158 U.S. App. D.C. 375 (1973) (Opinion of Leventhal, J.).
In United States v. Moore (supra) this court rejected the broad defense of narcotics addiction to a Jones-Miller and Harrison Act charge, but remanded for resentencing under NARA Title II. In critical part, the rejection of the defense rested on the availability to the defendant-addict of treatment through NARA. There were five votes to reject the defense, but there were two main lines of emphasis. For Judges Wilkey, MacKinnon and Robb, there was no legitimate Eighth Amendment problem of "compulsion," along the lines of Robinson v. California, 370 U.S. 660, 8 L. Ed. 2d 758, 82 S. Ct. 1417 (1962) and Powell v. Texas, 392 U.S. 514, 20 L. Ed. 2d 1254, 88 S. Ct. 2145 (1968).
For Judges McGowan and Leventhal, whatever problems of compulsion did exist were obviated by the Congressional determination to deal with treatment for addiction as a matter of disposition. In their view, this had been done in the large for all defendants prosecuted after the effective date of the 1970 Comprehensive Act, and could be done within the framework of NARA, as properly applied, for defendants, like Moore, convicted under prior statutes.2
It was this approach, also joined by Judge Bazelon (in the alternative), which resulted in a conclusion that the case should be remanded. The three judges whose reasoning would have resulted in an affirmance joined in a remand judgment to avoid impasse. The other three judges ...