SUBCHAPTER B.-DRUG OFFENSES

(Sections 1811-1815)

The four offenses in this subchapter consolidate, and, with some significant changes, recodify, the criminal provisions of the Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. 801 et seq.1 The offenses in this subchapter are Trafficking in an Opiate (section 1811); Trafficking in Drugs (section 1812); Possessing Drugs (section 1813); and Violating a Drug Regulation (section 1814.) 2 Section 1815 contains definitions and a defense applicable to the foregoing sections. Present Federal law will be discussed in relation to each of the proposed offenses. As background to such discussion, however, the following brief history is pertinent.

Until October 1970 heroin, cocaine, marihuana, LSD, peyote, and numerous other dangerous drugs were regulated under a variety of Federal statutes. Many of the statutes were based on the taxing power; others, on the power to regulate commerce. Most Federal laws relating to unlawful dealings in narcotics and marihuana were found in the Internal Revenue Code. Penalties applying to such crimes were set forth in 26 U.S.C. 7237. In addition other statutes provided penalties of from five to twenty years' imprisonment for narcotic or marihuana offenses. Among them were those (1) making illegal the importation of narcotics contrary to law and forbidding any dealing in or transporting of illegally imported narcotics (21 U.S.C. 174); (2) doing the same with regard to marihuana (21 U.S.C. 176a); and (3) outlawing the possession of narcotics on vessels (21 U.S.C. 184a). Section 1403 of title 18 of the United States Code provided a penalty of from two to five years in prison for the use of communication facilities to violate other narcotic laws, and 21 U.S.C. 176b established a sentence of from ten years to life imprisonment, or a possible death penalty, for sale of heroin to juveniles. Finally, portions of the Food, Drug, and Cosmetic Act contained provisions and penalties relating to illegal dealings in depressant and stimulant substances such as LSD, peyote, amphetamines, and barbiturates (former 21 U.S.C. 231 (v), 331 (q), and 333 (b)).

On October 27, 1970, the Comprehensive Drug Abuse Prevention and Control Act of 1970 was enacted into law. The Act is divided into four titles. Title I establishes, under the jurisdiction of the Department of Health, Education, and Welfare, certain rehabilitation pro

1 Sections 1811-1815 accept the recommendations of the American Bar Association, Hearings. p. 5815.

2 The Committee does not at this time anticipate a Federal policy of experimental opiate maintenance which would imply the decriminalization of all but large-scale sales of drugs and the treatment of addiction- and usage-related offenses as symptomatic of disease rather than crime. This British system has had considerable practical success (see Statement of John Buckley, Sheriff, Middlesex County, Mass., Hearings pp. 3195 et seq.), but is not without its opponents (Hearings, pp. 3206-3223). For a comparison of this ambulatory maintenance scheme and present civil commitment programs, see Hearings, pp. 3227–3243. 3 P.L. 91-513, 84 Stat. 1236.

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grams relating to drug abuse. Title IV provides for annual reports to the Congress by the Secretary of Health, Education and Welfare regarding certain advisory councils. Titles II and III constitute a complete revision and consolidation of all Federal statutes relating to dealings in narcotics, marihuana, and other dangerous drugs, both licit and illicit. Title II is known as the Controlled Substances Act (21 U.S.C. 801 et seq.); title III, as the Controlled Substances Import and Export Act (21 U.S.C. 951, et seq.).

1. In General

SECTION 1811. TRAFFICKING IN AN OPIATE

This section and section 1812 substantially restate provisions contained in the Controlled Substances Act and the Controlled Substances Import and Export Act, i.e., 21 U.S.C. 841, 952 (a), 953 (a), 955, and 959. This section deals with opiates. Section 1812 regulates transactions in non-opiate drugs and substances. This section also contains a new provision proscribing possession of four or more ounces of an opiate without the need to show an intent to distribute or dispense it. 2. Present Federal Law

A. 21 U.S.C. 841

21 U.S.C. 841 (a) makes it unlawful for any person, except as authorized by this subchapter (i.e., the Controlled Substances Act), "knowingly or intentionally (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or (2) to create, distribute or dispense or possess with intent to distribute or dispense, a counterfeit substance."

Most of the terms used in this section are defined in 21 U.S.C. 802. For example, the term "controlled substance" is defined in 21 U.S.C. 802 (6) to mean a drug or other substance, or immediate precursor,+ included in schedule I, II, III, IV, or V of part B of this subchapter (i.e., 21 U.S.C. 811-812). The term "counterfeit substance" is defined in 21 U.S.C. 802 (7) to mean a controlled substance which, or the container or labeling of which, without authorization bears the trademark, trade name, or other identifying mark, imprint, number, or device, or any likeness thereof, of a manufacturer, distributor, or dispenser other than the person or persons who in fact manufactured, distributed, or dispensed such substance and which thereby falsely purports or is represented to be the product of, or to have been distributed by, such other manufacturer, distributor, or dispenser.

5

The word "dispense" is defined in 21 U.S.C. 802 (1) as meaning to "deliver" a controlled substance to an ultimate user or research subject by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance and the packaging, labeling, or compounding necessary to prepare the substance for such delivery.

The terms "deliver" and "delivery" are defined in 21 U.S.C. 802(8) to mean the actual, constructive, or attempted transfer of a controlled

4 The term “immediate precursor" is defined in 21 U.S.C. 802 (22).

5 The term "practitioner" is defined in 21 U.S.C. 802 (20).

substance, whether or not there exists an agency relationship. The purpose of the latter clause was to overrule a line of cases under the narcotic laws in force prior to the Drug Abuse and Control Act of 1970 holding that a defendant could not be convicted of selling narcotics to the purchaser if he acted as the agent of the purchaser (although he could be convicted, under another provision, of having facilitated the sale).

The word "distribute" is defined in 21 U.S.C. 802 (11) to mean to deliver (other than by administering or dispensing) a controlled substance. "Administer" in turn is defined in 21 U.S.C. 802(2) to refer to the direct application of a controlled substance to the body of a patient or research subject by (A) a practitioner (or, in his presence, by his authorized agent), or (B) the patient or research subject at the direction and in the presence of the practitioner, whether such application be by injection, inhalation, ingestion, or any other means.

The term "manufacture" is defined in 21 U.S.C. 802(14) to mean the production, preparation, propagation, compounding, or processing of a drug or other substance either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of such substance or labeling or relabeling of its container; except that such term does not include the preparation, compounding, packaging, or labeling of a drug or other substance in conformity with the applicable State or local law by a practitioner as an incident to his administration or dispensing of such drug or substance in the course of his professional practice.

The penalties for a violation of section 841 (a) are set forth in a complex array of provisions in 21 U.S.C. 841 (b), 844, and 845, and vary depending upon such factors as the type of controlled substance involved, whether the offender had a previous conviction, and whether the offense involved a distribution to a person under twenty-one years of age.

Section 841 (b) provides that, except as otherwise provided in 21 U.S.C. 845, where a schedule I or II narcotic is involved, the penalty is ordinarily up to fifteen years in prison; a special parole term of at least three years must also be imposed. If the offender has previously been convicted of any felonious violation of the Drug Abuse and Control Act of 1970 or other law of the United States relating to narcotic drugs, marihuana, or depressant or stimulant substances, and the conviction has become final, the maximum prison sentence is increased to thirty years plus a minimum special parole term of at least six years. When a schedule I or II non-narcotic substance or a schedule III substance is involved, the violator is ordinarily subject to imprisonment for up to five years, plus a special parole term of at least two years. In the case of a subsequent offender, both penalties are doubled. When a schedule IV substance is involved, the penalty customarily is imprisonment for up to three years, plus a special parole term of at least one year. In the case of a subsequent offender, both penalties are doubled.

F.g., Lewis v. United States, 337 F.2d 541 (D.C. Cir. 1964), cert, denied, 381 U.S. 920 (1965): Adams v. United States, 220 F.2d 297 (5th Cir. 1955); United States v. Sawyer, 210 F.2d 169 (3d Cir. 1954).

When a schedule V substance is involved, the penalty normally is imprisonment for up to one year. However, if the violator is a subsequent offender, the maximum sentence is increased to two years in prison.

An offender who distributes a "small amount of marihuana for no remuneration" is to be treated as though he has violated 21 U.S.C. 844, which prohibits the unauthorized possession of a controlled substance. The penalty under that section is the same as that provided when a schedule V substance is involved, except that a special procedure is afforded whereby the court may, if the offense is the first offense of the defendant involving narcotics, marihuana, or depressant or stimulant substances, with the consent of the defendant, and without entering judgment, defer further proceedings and place him on probation subject to such reasonable conditions as the court may impose. The successful completion of the probationary period results in the expungement of the conviction (but no such expungement may occur more than once with respect to any person).

21 U.S.C. 845 (a) provides that a person at least eighteen years of age who violates section 841 (a) (1) by distributing a controlled substance to a person under twenty-one years of age is ordinarily punished by a term of imprisonment up to, and a special parole term at least twice, that authorized in section 841 (b). In the case of a violator previously convicted under section 845(a), or under former 21 U.S.C. 333(b), the maximum prison and special parole terms are three times those prescribed in section 841 (b).

In addition to all the foregoing penalties, 21 U.S.C. 849 provides a procedure for the classification of a defendant as a "dangerous special drug offender," authorizing the imposition of a sentence of imprisonment up to twenty-five years. A complex definition of "special drug offender" is set forth in 21 U.S.C. 849 (e). A defendant is deemed to be "dangerous" if a period of confinement longer than that provided for his felonious act is required for the protection of the public from further criminal conduct on his part. These provisions are brought forward, in essence, in section 2302.7

B. 21 U.S.C. 952 (a)

This statute makes it unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedules I or II, or any narcotic drug in schedules III, IV, or V. Paragraphs (1) and (2) of this subsection contain certain exceptions to this prohibition. Paragraph (1) permits the importation of as much crude opium and coca leaves as the Attorney General finds to be necessary to provide for medical, scientific, or other legitimate purposes. Paragraph (2) allows the importation of such amounts of any controlled substance in schedules I or II, or any narcotic drug in schedules III, IV, or V as the Attorney General finds to be necessary for the medical, scientific, or other legitimate needs of the United States. However, such importations are permitted only during an emergency in which domestic supplies of such drugs are found to be inadequate or

721 U.S.C. 848 describes in effect a separate offense of being a leader of a continuing criminal enterprise involving five or more persons who engage in a series of felonious violations of the Drug Abuse and Control Act of 1970. This offense is incorporated into proposed section 1801 (Operating a Racketeering Syndicate).

when competition among domestic manufacturers is inadequate and cannot be made adequate by registering more manufacturers.

The term "import" is defined in 21 U.S.C. 951 (a) (1) to mean, with respect to any article, "any bringing in or introduction of such article into any area (whether or not such bringing in or introduction constitutes an importation within the meaning of the tariff laws of the United States)."

The term "customs territory" is defined in 21 U.S.C. 951 (a) (2) to have the meaning assigned to such term by general headnote 2 to the Tariff Schedules of the United States.

The term "United States" is defined in 21 U.S.C. 802 (26) to mean "all places and waters, continental or insular, subject to the jurisdiction of the United States." 8

The penalties for a violation of section 952 (a) are prescribed in 21 U.S.C. 960 and 962. Under section 960, whoever "knowingly or intentionally" imports a schedule I or II narcotic drug may be imprisoned up to fifteen years. Any term of imprisonment must be accompanied by a special parole term of not less than three years.

If the offense involves any other controlled substance, the maximum. penalty is five years in prison; any sentence of imprisonment imposed must include a special parole term of not less than two years if the substance is in schedules I, II, or III, and one year if it is in schedule IV. Section 962 deals with subsequent offenses and provides that, if a person has been previously convicted of a felony relating to narcotic drugs, marihuana, or depressant or stimulant drugs, the maximum permissible prison term for conviction of any offense in this subchapter (ie., the Controlled Substances Import and Export Act) is doubled.

C. 21 U.S.C. 953 (a)

This statute makes it unlawful to export from the United States any narcotic drug in schedules I, II, III, or IV, unless (1) it is exported to a country which is a party to certain international narcotic control conventions, (2) the destination country has an adequate narcotic import control system, (3) the destination country has issued the consignee a narcotic import license. (4) the exporter establishes that the narcotic is to be used for medical or scientific purposes in the destination country, and (5) the Attorney General has issued an export permit. 21 U.S.C. 953 (b) contains a further exception allowing the Attorney General to authorize the exportation of any narcotic drug in schedules I-IV to any country which is a party to the international agreements mentioned in subsection (a) if the particular drug is to be applied to a special scientific purpose in the country of destination and the authorities of such country will permit its importation for such purpose.

The penalties are prescribed by 21 U.S.C. 960 and 962 and are the same as those applicable to section 952 (a).

D. 21 U.S.C.955

This section renders it unlawful for any person to bring or possess on board any vessel or aircraft, or on board any vehicle of a carrier, arriving in or departing from the United States or

8 Cf. United States v. Matthews, 427 F.2d 992 (5th Cir. 1970), holding, under predecessor statutes, that a person committed an offense by bringing a narcotic from a possession of the United States (the Panama Canal Zone) into a State.