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October 29, 1974

Lawrence BROOKINS, Defendant. UNITED STATES of America v. Andres GUECHE, Defendant

The opinion of the court was delivered by: LACEY

 Before the Court are identical motions by defendants Lawrence Brookins, Cr. No. 577-73, and Andres Gueche, Cr. No. 74-3, for dismissal of their indictments on the grounds that the statute underlying the indictments, the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. Sec. 801 et seq. (hereinafter the 1970 Act), is unconstitutional as it applies to cocaine.

 Defendants, in connection with their motions, seek an evidentiary hearing. In view of the affidavits submitted, and in light of the issues raised, no evidentiary hearing is required, see United States v. Smaldone, 484 F.2d 311 (1973), cert. denied, 415 U.S. 915, 94 S. Ct. 1411, 39 L. Ed. 2d 469 (1974), and the motions to dismiss are denied.

 Defendant Brookins is charged in a one-count indictment with having knowingly distributed 16.19 grams of cocaine in violation of 21 U.S.C. Sec. 841(a)(1). Defendant Gueche is charged in a two-count indictment with having distributed on one occasion 1.6 grams of cocaine, and, on another occasion, 111 grams of cocaine, also in violation of 21 U.S.C. Sec. 841(a)(1).

 Further, the defendants advance an equal protection claim through the Fifth Amendment due process clause, see Schneider v. Rusk, 377 U.S. 163, 168, 84 S. Ct. 1187, 12 L. Ed. 2d 218 (1964); Bolling v. Sharpe, 347 U.S. 497, 74 S. Ct. 693, 98 L. Ed. 884 (1954), alleging that since cocaine is pharmacologically similar in effect to methamphetamine, a schedule II non-narcotic, 21 U.S.C. Sec. 812(c), and the amphetamines, generally classified as schedule III substances, 21 U.S.C. Sec. 812(c), the sale of which substances exposes defendants to a maximum sentence of 5 years imprisonment and $15,000 fine (see 21 U.S.C. Sec. 841(b)(1)(B), Congress has discriminated against cocaine sellers by prescribing an additional 10 years and $10,000 fine for violations of 21 U.S.C. Sec. 841(a)(1), thus treating like offenders differently.

 Finally, the defendants allege that the 1970 Act, non-discriminatory on its face, is racially discriminatory in application. See Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886). They argue that the Harrison Narcotics Act of 1914 was racially motivated and that Congress, by defining cocaine as a narcotic in 1922, see The Narcotic Drugs Import and Export Act (42 Stat. 596), and redefining cocaine as a narcotic in the 1970 Act (which Act the defendants term a careful, thorough and commendable reorganization of the laws relating to controlled substances), without questioning the basis for that definition, continued to perpetuate the "racial myths" of bygone days.

 Preliminarily, it should be noted that defendants' motions are premature and theoretically not ripe for adjudication since the defendants, presumed innocent, have not at this point suffered any concrete exposure to the penalties of 21 U.S.C. Sec. 841(b)(1)(A), see Rescue Army v. Municipal Court, 331 U.S. 549, 67 S. Ct. 1409, 91 L. Ed. 1666 (1947), and are theoretically without standing, see United States v. Thorne, 325 A.2d 764 (D.C. Cir. 1974), slip op. at 6, since the challenged penalties have not and may never be imposed on them. However, in view of the action I take, I will treat the defendants as having requisite standing and the motions as properly ripe for adjudication.

 Defendants' attack on the classification of cocaine as a narcotic, with the aforementioned penalty ramifications for the sale thereof, is based on the contentions that "no reputable physician in the country would testify that cocaine is a narcotic drug" and "cocaine (does not) carry with it the potential for social harm which is inherent in the true narcotic drug." (Defts' Brief, at 1) The defendants have submitted a series of affidavits in support of their contentions. The government in its brief and supporting affidavits, while conceding that cocaine is not a true narcotic in the strict medical or pharmacological sense of the term, disputes cocaine's potential for societal harm.

 The issue then, as this Court perceives it, is whether Congress can rationally classify cocaine, a non-narcotic central nervous system stimulant, as a narcotic for penalty and regulatory purposes. In other words, must the legal or congressional classification of cocaine as a narcotic mirror its medical classification?

 The appropriate standard to be applied in determining the issue is succinctly set forth in United States v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938), wherein it is stated (304 U.S. at 153, 154, 58 S. Ct. 778, 784):

Where the existence of a rational basis for legislation whose constitutionality is attacked depends upon facts beyond the sphere of judicial notice, such facts may properly be made the subject of judicial inquiry, and the constitutionality of a statute predicated upon the existence of a particular state of facts may be challenged by showing to the court that those facts have ceased to exist. . . . But by their very nature such inquiries, where the legislative judgment is drawn in question, must be restricted to the issue whether any state of facts either shown or which could reasonably be assumed affords support for it.

 Accord, see United States v. Smaldone, 484 F.2d 311 (1973), cert. denied, 415 U.S. 915, 94 S. Ct. 1411, 39 L. Ed. 469 (1974). In Smaldone, the district court had denied without an evidentiary hearing defendant's motion to dismiss the indictment on the ground that the statutory classification of cocaine as a narcotic was arbitrary, capricious and lacking in reason. Affirming, the Court of Appeals stated on the issue of congressional classification: "The judicial approach to this kind of question is that the classification will be upheld if any facts justify it." 484 F.2d at 320.

 As this Court has previously noted in its unpublished opinion in United States v. Hallock, No. 429-72 (D.N.J. June 26, 1973), aff'd, 491 F.2d 751 (3d Cir. 1973), courts must act with restraint in reviewing congressional judgment. "The challenged legislative act will be presumed valid 'unless it is shown that the statute in question bears no rational relationship to a legitimate legislative purpose.'" Id., at 4. See also United States v. Brumage, 377 F. Supp. 144, 148 ...

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