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the customs territory thereof, a controlled substance in schedules I or II or a narcotic drug in schedules III or IV, unless such substance or drug is a part of the cargo entered in the manifest or part of the official supplies of the vessel, aircraft, or vehicle.

The penalties are identical to those in section 952 (a).

E. 21 U.S.C. 959

This statute makes it unlawful for any person to manufacture or distribute a controlled substance in schedules I or II intending or knowing that such substance will be unlawfully imported into the United States. The section specifically states that it is intended. to reach acts of manufacture or distribution committed outside the territorial jurisdiction of the United States, and fixes venue for trial as the district where an accused enters the United States, or the District of Columbia.

The penalties for a violation of this section are the same as for 21 U.S.C. 952(a).o

3. The Offense

Subsection (a) provides that a person is guilty of an offense if he : (1) manufactures or traffics in an opiate:

(2) creates or traffics in a counterfeit substance containing an opiate;

(3) imports or exports an opiate, or possesses an opiate aboard a vehicle arriving in or departing from the United States or the customs territory of the United States;

(4) manufactures or traffics in an opiate for import into the United States; or

(5) possesses four ounces or more of an opiate.

The term "opiate" is defined in section 1815(a) (5) to mean a mixture or substance containing a detectable amount of any narcotic drug 10 that is a controlled substance listed in schedule I or II, other than a narcotic drug consisting of (a) coca leaves; (b) a compound, manufacture, salt, derivative, or preparation of coca leaves; or (c) a substance chemically identical thereto.

The terms "controlled substance," "counterfeit substance," "narcotic drug." and "manufacture" are all defined in section 1815 (a) (1) to have the meaning given to those terms in 21 U.S.C. 802.

The word "traffic" is defined in section 111 to mean (a) to sell, transfer, distribute, dispense, or otherwise dispose of to another person; or (b) to buy, receive, possess, or obtain control of with intent to do any of the foregoing.

The term "distribute" is defined in section 1815(a) (1) to have the meaning designated in 21 U.S.C. 802. The term "dispense" is defined in section 1815 (a) (3) to mean to "deliver a controlled substance to an ultimate user or research subject by, or pursuant to the order of, a practitioner, including the prescribing or administering of a controlled substance and the packaging, labelling, or compounding necessary to prepare the substance for such delivery." This carries forward the definition of "dispense" in 21 U.S.C. 802, with the principal modification that the word "lawful" before "order of a practitioner" has been

921 U.S.C. 846 and 963 punish an attempt or conspiracy to commit any offense in the Drug Abuse and Control Act of 1970. These statutes are carried forward in sections 1001 (Criminal Attempt) and 1002 (Criminal Conspiracy) of the subject bill.

10 The concept of a "detectable amount" carries forward current law. See United States v. Nelson, 499 F.2d 965 (8th Cir. 1974).

deleted. The presence of this word in the current definition creates troublesome ambiguities and has given rise to conflicting interpretations with respect to the relationship between the offenses of "dispensing" and "distributing" as regards physicans or other practitioners under the statute. Taken literally, the word "lawful” would seem to preclude a conviction of a physician licensed to dispense narcotics, even in a case where he "dispensed" such drugs not in the regular course of practice. The First Circuit has indeed held that in such a case the prosecution should be brought under the "distributing" branch of the statute;" the Fifth Circuit disagrees.12 To obviate this unnecessary problem, the Committee has eliminated the adjective "lawfully," permitting a prosecution of a physician either for distributing or dispensing. If the dispensing was "lawful," the practitioner-defendant is afforded a defense that his conduct was authorized by the provisions of the Controlled Substances Act.13

The term "customs territory" is defined in section 1815 (a)(2) to have its identical meaning in current law (21 U.S.C. 951).14 With respect to "import," however, the Committee has essentially adopted in this subchapter the definition in the offense section of present law, 21 U.S.C. 952(a). Thus, the term is defined in section 1815 (a) (4) to mean to "import into the United States from any place outside the United States, or into the customs territory of the United States from any place outside the customs territory of the United States but within the United States." 15 The following illustrates the effect of this language. If John Doe transports heroin from Europe to the Virgin Islands, he is guilty of unlawful importation.16 Richard Roe's transportation of the heroin from the Virgin Islands to Puerto Rico or Florida would also constitute an illegal importation.17

The terms "schedule I," and the other "schedules" are defined in section 1815 (a) (6) to refer to the schedules of controlled substances established by 21 U.S.C. 812.

Paragraphs (1) and (2) continue offenses now in 21 U.S.C. 841(a). The Committee's term "traffics" may broaden the offenses as currently stated since it is all-encompassing and refers to any manner of "dispos[al]" to another person, and not merely to distribute or dispense (in addition to manufacturing) as under section 841 (a). It should also be noted that implicit in the definition of "traffics" is the rejection of the "purchasing agent" doctrine. As remarked earlier, this doctrine was eliminated in the Drug Abuse Prevention and Control Act of 1970 by means of the definition of "deliver' in 21 U.S.C. 802. The inclusion of such verbs as "transfer" and "dispose" in the concept of "traffics"

11 United States v. Badia, 490 F.2d 296 (1st Cir. 1973). Se ealso United States. v. Moore, 505 F.2d 426 (D.C. Cir. 1974), holding that a licensed physician may not be prosecuted at all under 21 U.S.C. 841. The Committee disagrees with the Moore holding. 12 United States v. Leigh, 487 F.2d 206 (5th Cir. 1973).

13 See section 1815(b), discussed subsequently. A corresponding deleting of the modifier "lawfully" has been made in the conforming amendments in the definition of the term "ultimate user," utilized in the definition of "dispense." See 21 U.S.C. 802 (25).

14 General headnote 2 of the Tariff Schedules. to which the definition makes reference, includes States, the District of Columbia, and Puerto Rico within the "customs territory.' 15 The further definition of "import" as meaning any bringing in or introduction of an article into any area has been retained in 21 U.S.C. 951 and is, therefore, also applicable under this section.

10 See the definition of "United States" in section 111 as including all "states" (a term defined to include all possessions and territories of the United States, as well as the District of Columbia. Puerto Rico, Guam, etc.), all places and waters, continental or insular, that are subject to the special territorial or maritime jurisdiction of the United States, and the airspace overlying such States, places, and waters.

17 See United States v. Matthews, supra note 8, reaching an identical result under prior law.

also accomplishes this result, since, although an agent of a purchaser may not "sell" drugs to his principal, he certainly "transfers" or "disposes" of them so as to come within this section.18

With respect to the offenses of possession with intent, encompassed within the meaning of "traffics," the Committee intends to perpetuate current law to the effect that possession may be either constructive or actual,1o and that an intent to sell or otherwise dispose of the substance may be inferred from quantity of the substance possessed, as well as from other circumstances such as its manner of packaging. 20

The conduct in these offenses is manufacturing or trafficking in a substance (paragraph (1)) and creating or trafficking in a substance (paragraph (2)). Since no culpability level is specifically designated, the applicable state of mind that must be proved is at least "knowing," i.e., that the defendant was aware of the nature of his actions.21

The element that the substance was an "opiate" in paragraph (1) or a "counterfeit substance containing an opiate" in paragraph (2) is an existing circumstance. As no culpability standard is prescribed in this section, the applicable state of mind that must be established is, at a minimum, "reckless," i.e., that the defendant was conscious of but disregarded the risk that the circumstance existed, and the risk was such that its disregard constituted a gross deviation from the degree of care that a reasonable person would have exercised in the circumstances.22

The combination of requiring at least "knowing" conduct and "recklessness" as to the nature of the substance, reduces, but only slightly, the scienter required by present law. Although 21 U.S.C. 841 (like the other offenses carried forward in this and the next section) speaks in terms of "knowingly or intentionally," the courts have interpreted "knowingly" to include conscious avoidance or studied ignorance, and have sustained jury instructions that knowledge may be inferred where the defendant "deliberately closed his eyes to what he had every reason to believe was the fact." 23 Both cases cited affirmed convictions for importing and possessing cocaine with intent to sell, where the evidence showed that the defendant received or was promised substantial money to carry through customs a suitcase or package, notwithstanding the defendant's contention that he did not actually know what was in the suitcase or package and that, while he realized he was doing something wrong, the substance could have been smuggled goods other than narcotics.

Under the Committee's formulation, something less than conscious avoidance will suffice for criminal liability, but the actor must have disregarded a substantial risk, of which he was aware, that the substance trafficked in was an opiate.

This is a fair standard, since, in the situation in the Joly and Olivares-Vega cases just referred to, a reasonable and law-abiding per

18 See United States v. Pierce, 498 F.2d 712 (D.C. Cir. 1974), and cases cited therein. 19 E.g., United States v. Maspero, 496 F.2d 1354, 1359 (5th Cir. 1974); United States v. Philips, 496 F.2d 1395, 1397 (5th Cir. 1974): United States v. James, 494 F.2d 1007, 1031 (D.C. Cir.), cert. denied, - U.S. (Nov. 18, 1974).

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20 E.g., United States v. Welebir, 498 F.2d 346, 350-351 (4th Cir. 1974), and cases cited therein; United States v. Sigal, 500 F.2d 1118, 1123 (10th Cir. 1974), cert. denied, U.S.

(October 21, 1974).

21 See sections 303 (b) (1) and 302(b) (1).

22 See sections 303 (b) (2) and 302(c) (1).

23 See United States v. Joly, 493 F.2d 672, 674 (2d Cir. 1974); United States v. OlivaresVega, 495 F.2d 827, 830 (2d Cir. 1974).

son would check or inquire into, the contents of the package before agreeing to perform the requested task of carrying it through customs. A failure to do so would constitute a gross deviation from the degree of care that a reasonable and law-abiding person would exercise, and, in the Committee's view, affords ample basis for the imposition of criminal sanctions.

Paragraph (3) brings forward the offenses (insofar as they cover opiates) in 21 U.S.C. 952(a), 953 (a), and 955. The latter offense has been somewhat expanded in that it currently reaches only possession aboard a vessel, aircraft, or "vehicle of a carrier," whereas this section covers possession aboard any "vehicle." The term "vehicle" is defined in section 111 to mean a motor vehicle, vessel, railroad vehicle, or aircraft. Thus, at least in its coverage of private motor vehicles, this section expands current law under 21 U.Ś.C. 955.

The conduct in this offense is importing, exporting, or possessing a substance. As no culpability level is set forth in this section, the applicable state of mind that must be provided is at least "knowing," i.e., that the offender was aware of the nature of his actions.25

The elements that the substance was an "opiate" and that, as to the possession branch, it was "aboard a vehicle arriving in or departing from the United States," etc., are existing circumstances. Since no culpability standard is specifically prescribed, the applicable state of mind to be shown is, at a minimum, "reckless," i.e., that the offender was aware of but disregarded the risk that the circumstances existed.26

Paragraph (4) brings forward offenses in 21 U.S.C. 959. Insofar as the term "traffics" is broader than the concept of "distribute" in present law, this section expands the offense to cover all manner of dealings in opiates for import into the United States.

The conduct is manufacturing or trafficking in a substance. Since no culpability level is designated, the applicable state of mind is, as under the foregoing paragraphs, at least "knowing." The nature of the substance is an existing circumstance as to which the minimum state of mind that must be shown is "reckless." The element "for import into the United States" states the particular purpose for which it must be proved that the conduct was performed.

Paragraph (5) is a new offense designed to supplement paragraph (1). Under present law, an intent to manufacture, distribute, or dispense a controlled substance must be proved in order to constitute a violation of 21 U.S.C. 841 (a) based on possession. The Committee believes, however, that in the cases of opiates, the possession of four ounces or more of a drug is tantamount to possession with intent to traffic and accordingly has made such possession itself a serious offense. Of course, if less than four ounces is involved, the government must show the requisite intent under paragraph (1).

The conduct in this offense is possessing a substance and, as with the foregoing offenses, the culpability necessary is at least "knowing." The elements that what was possessed was four or more ounces of an opiate are existing circumstances as to which the requisite state of mind is, at a minimum, "reckless."

24 These terms are, in turn, each defined in section 111.

25 See sections 303 (b) (1) and 302(b)(1).

20 See sections 303 (b) (2) and 302 (c) (1).

4. Jurisdiction

This section contains no subsection setting forth the extent to which Federal jurisdiction exists over an offense herein. Therefore, by operation of section 201 (b) (2), there is Federal jurisdiction over an offense in this section if it is committed within the general jurisdiction of the United States, as defined in section 202. In addition, extraterritorial jurisdiction may be asserted over the offense in paragraph (4), by virtue of section 204 (d). This continues current law under 21 U.S.C. 959. The generally broad scope of jurisdiction is consistent with the congressional findings and declarations in the Drug Abuse and Control Act of 1970.27 Regulation of intrastate transactions under these and similar findings in predecessor statutes have been uniformly sustained against constitutional challenge.28

5. Grading

Subsection (b) simplifies and revamps the complex penalty scheme in the Drug Abuse and Control Act of 1970.

The most serious status (i.e., Class B felony-up to thirty years in prison) is reserved for cases in which (1) the opiate weighs four ounces or more, (2) the offense consists of distributing the opiate to a person who is less than eighteen vears old and is at least five years younger than the defendant, or (3) the offense is committed after the defendant has been convicted of a felony under Federal, State, or foreign law relating to an opiate, or while he was on release pending trial for an offense under this section.

The first branch of this provision reflects the Committee's view that persons whose offense involves four or more ounces of an opiate are likely to be major traffickers deserving of severe punishment.29

The second branch generally brings forward the heightened penalty under 21 U.S.C. 845 when the offense involves distributing a controlled substance to a minor. However, whereas that section applies whenever

27 See 21 U.S.C. 801, which provides:

The Congress makes the following findings and declarations;

(1) Many of the drugs included within this subchapter have a useful and legitimate medical purpose and are necessary to maintain the health and general welfare of the American people.

(2) The illegal importation, manufacture, distribution. and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.

(3) A major portion of the traffic in controlled substances flows through interstate and foreign commerce. Incidents of the traffic which are not an integral part of the interstate or foreign flow, such as manufacture, local distribution, and possession, nontheless have a substantial and direct effect upon interstate commerce because

(A) After manufacture, many controlled substances are transported in interstate commerce.

(B) Controlled substances distributed locally usually have been transported in interstate commerce immediately before their distribution, and

(C) Controlled substances possessed commonly flow through interstate commerce immediately prior to such possession.

(4) Local distribution and possession of controlled substances contribute to swelling the interstate traffic in such substances.

(5) Controlled substances manufactured and distributed intrastate cannot be differentiated from controlled substances manufactured and distributed interstate. Thus, it is not feasible to distinguish. in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.

(6) Federal control of intrastate incidents of the traffic in controlled substances is essential to the effective control of the interstate incidents of such traffic.

(7) The United States is a party to the Single Convention on Narcotic Drugs. 1961, and other international conventions designed to establish effective control over international and domestic traffic in controlled substances.

28 E... United States v. Lopez, 459 F.2d 949. 951-952 (5th Cir.) cert. denied, 409 U S. 878 (1972), and cases cited therein: United States v. Lamear, 417 F.2d (8th Cir. 1969), cert. denied. 397 U.S. 967 (1970), and cases cited therein; cf. Perez v. United States, 402 U.S. 146 (1971).

29 The New York City Bar Association's Special Committee supported heavier penalties for "wholesale distribution or sale or possession of large quantities" of dangerous drugs. See Hearings, p. 3554.

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