Section 1812.

the distribution is to a person under twenty-one years of age by a person over eighteen, this section treats as victim-minors only persons under eighteen, and reaches only individuals at least five years older than the victim, where the situation is likely to involve corruption of the minor rather than a trafficking transaction by a peer.30

The third branch of this provision applies to previous felony convictions in violation of State or foreign law, as well as Federal law. This expands current law under 21 U.S.C. 841 (b) and 962, the doublethe-penalty provisions of which are triggered only by a previous, final conviction under a law of the United States regulating narcotic drugs, marihuana, or depressant or stimulant drugs. The Committee considers that opiate trafficking violations are so deleterious to the wellbeing of the American people that offenders who have been previously found guilty of trafficking in such drugs under State and foreign, as well as Federal laws (or who commit such offense while on release awaiting trial for an offense under this section), merit harsh penalties. The Committee intends that a "conviction" be usable for augmentation of sentence purposes even though it is on appeal or the subject of a certiorari request.

31

In any other case, the offense is graded as a Class C felony (up to fifteen years in prison). This continues the existing penalty range applicable to opiate offenses when no aggravating factor is present.

Subsection (b) also provides that, notwithstanding the provisions of part III of this title, the court may not sentence the defendant to probation, but shall sentence him to a term of imprisonment of not less than ten years if the offense is a Class B felony and not less than five years if the offense is a Class C felony. This provision is new. It reflects the Committee's belief that the seriousness of the opiate offenses described herein warrants a mandatory minimum prison sentence. However, the harshness and inflexibility of the mandatory minimum term are ameliorated by the fact that nothing in this section (unlike pre-1970 law) 32 precludes the granting of immediate parole when, in the judgment of the Parole Board, such a disposition is appropriate, and the sentencing judge is of course not barred from recommending parole.

The special dangerous offender sentencing provisions of 21 U.S.C. 849 have been carried forward in section 2302. In addition the special parole term concept has been adopted generically in the proposed new Code for all felony offenses in section 2303. The continuing criminal enterprise statute for drug violators, 21 U.S.C. 848, has been absorbed into section 1801 (Operating a Racketeering Syndicate).

SECTION 1812. TRAFFICKING IN DRUGS

1. In General and Present Federal Law

This section complements the previous offense and deals with trafficking in controlled substances other than opiates. It brings forward 21 U.S.C. 841, 952 (a), 953 (a), 955, and 959 to the extent those statutes cover non-opiate substances. The new offense in section 1811(a)(5) of possession of four ounces or more of an opiate is not enlarged in

30 See section 1643 (Sexual Abuse of a Minor), where the same device was utilized, but in the definition of the offense rather than in grading.

31 See State of Arizona v. Court of Appeals Division I, 441 P. 2d 544, 547 (Ariz. 1968); cf. United States v. Franicevich, 471 F.2d 427 (5th Cir. 1973).

32 See Warden v. Marrero, 417 U.S. 653 (1974).

this section to apply to non-opiate drugs, nor is the mandatory minimum sentencing provision, applicable to opiates, continued here.

2. The Offense

Subsection (a) provides that a person is guilty of an offense if he (1) manufactures or traffics in a controlled substance other than an opiate, (2) creates or traffics in a counterfeit substance other than a counterfeit substance containing an opiate, (3) imports or exports a controlled substance other than opiate, or possesses a controlled substance other than an opiate aboard a vehicle arriving in or departing from the United States or the customs territory of the United States, or (4) manufactures or traffics in a controlled substance, other than an opiate, and other than a substance listed in schedules III, IV or V, for import into the United States.

The analysis of the elements and culpability attending these offenses is identical to that under section 1811 (a) (1) through (4) and the discussion there should be adverted to here. The final offense is limited to schedule I or II substances to accord with the limited purview of the offense in 21 U.S.C. 959.

3. Jurisdiction

The scope of Federal jurisdiction under this section is the same as under section 1811 and the discussion there is equally applicable here. 4. Grading

In this section the Committee has continued the general sentencing scheme in current law which distinguishes between schedule I or II narcotic drugs and other substances, and contains special provisions for marihuana.

Under paragraph (b) (1), the most serious penalties under this section (i.e., Class C felony-up to fifteen years in prison) apply when the controlled substance involved in the offense is a narcotic drug listed in schedules I or II.

Under paragraph (b) (2), an offense is a Class D felony (up to seven years in prison) if the controlled substance is other than a narcotic drug listed in schedules I or II and is other than eight ounces or less of marihuana distributed for no remuneration. This latter exclusion (permitting more lenient treatment of marihuana distribution offenses in paragraph (b) (4) 34) brings forward the similar provision in 21 U.S.C. 841 (b) (4)), which applies to any person who distributes a "small amount of marihuana for no remuneration." In place of the term "small amount" the Committee has substituted "eight ounces or less," thereby obviating vagueness problems.

Under paragraph (b) (3), an offense under this section is graded as a Class E felony (up to three years in prison) if the controlled substance is listed in schedule IV.

Under paragraph (b) (4), an offense herein is graded as a Class A misdemeanor (up to one year in prison) if the controlled substance is listed in schedule V, or is eight ounces or less of marihuana. The latter provision brings forward the one-year penalty made generally applicable to the distribution of small amounts of marihuana via 21 U.S.C. 841 (b) (4) and 844.

34 The Committee prefers this approach to that of decriminalizing marihuana use. On this latter approach. see Hearings, pp. 6925-6949 (testimony of Keith Stroup, National Organization for the Reform of Marijuana Laws).

Section 1813.

In addition to the foregoing, subsection (b) provides for increased penalties in two situations, reflecting, respectively, the provisions of 21 U.S.C. 845 and the recidivist provisions of 21 U.S.C. 841 (b) and 962. If the offense consists of distributing a controlled substance to a person who is less than eighteen years old and who is at least five years younger than the defendant, the offense is of the class next above that otherwise specified. The offense is also of the class next above that specified if, prior to its commission, the defendant had been convicted of violating a Federal or State law relating to a controlled substance listed in the same schedule or a schedule of a "lower" number, i.e., one involving a more dangerous kind of drug.

Note that, contrary to current law, prior State felony convictions (as well as Federal) involving controlled substances may be used to increase the otherwise applicable maximum punishment. However, the Committee has not expanded present law to include "foreign" felonies, as under section 1811.

The Committee has modified the formula used in 21 U.S.C. 845 (a) by reducing the age of minority from twenty-one to eighteen, and by requiring that the offender be at least five years older than the victim, rather than merely a person at least eighteen years old. The purpose, as explained in connection with section 1811, is to reach those situations likely to involve an element of corruption of a minor by drugs, rather than those involving a drug transaction between peers.

The Committee has omitted the general scheme in 21 U.S.C. 845, which calls for a tripling of penalties if the offender is a recidivist and the distribution is to a minor. The Committee considers the tripling concept to be inequitable and unduly severe as applied, e.g., to an offense normally carrying a fifteen-year penalty.

SECTION 1813. POSSESSING DRUGS

1. In General and Present Federal Law

This section deals with simple possession of controlled substances. and is a lesser included offense of sections 1811 and 1812.35 It is in large measure a restatement of 21 U.S.C. 844(a).

That section punishes by up to one year in prison 36 whoever knowingly or intentionally possesses a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice (or except as otherwise provided by the Drug Abuse and Control Act of 1970).

The term "practitioner" is defined in 21 U.S.C. 802 (20) to mean a physician, dentist, veterinarian, scientific investigator, pharmacy, hospital, or other person licensed, registered, or otherwise permitted, by the United States or the jurisdiction in which he practices or does research, to distribute, dispense, conduct, research with respect to, administer, or use in teaching or chemical analysis, a controlled substance in the course of his professional practice or research.37

See Sansone v. United States, 380 U.S. 343, 349-350 (1965); United States v. Blake, 484 F.2d 50, 58 (8th Cir. 1973), cert. denied, 417 U.S. 949 (1974).

36 The penalty rises to two years in prison if the offense is a second or subsequent offense under section 844 (a).

37 The terms "distribute," "dispense," and "administer" are also defined in 21 U.S.C. 802 and have been set forth in relation to the explanation of section 1811.

2. The Offense

Subsection (a) provides that a person is guilty of an offense if he possesses a controlled substance.

The term "controlled substance" is in 21 U.S.C. 1815 (a) (1) given the same meaning as it now has under section 802(6), i.e., a drug or other substance, or immediate precursor, included in schedules I-V, but not including distilled spirits, wine, malt beverages, or tobacco.

The Committee intends that the concept of "possesses" includes both actual and constructive possession, as has been repeatedly held in current law. 38

The conduct in this section is possessing a substance. Since no culpability level is specifically prescribed, the applicable state of mind to be proved is at least "knowing," i.e., that the offender was aware of the nature of his actions.3 39

The element that what was possessed was a "controlled substance" is an existing circumstance. As no culpability standard is specifically designated, the applicable state of mind that must be shown is, at a minimum, "reckless," i.e., that the offender was aware of but disregarded the risk that the circumstance existed.40

This degree of culpability reduces, but only slightly, the scienter required by the courts under the "knowingly or intentionally" standard in present law. This issue has been fully explained in relation to section 1811 and that discussion should be consulted here.

3. Defense

Subsection (b) provides that it is a defense to a prosecution under this section that the controlled substance was obtained directly from or pursuant to a valid prescription or order issued by, a practitioner acting in the course of his professional practice. This continues the exception in 21 U.S.C. 844(a). The matter is denominated as a "defense," thus meaning that the government will not have to negative the issue unless it is sufficiently raised by the evidence, whereupon the government will bear the burden of disproving the defense beyond a reasonable doubt.42 This is in accord with current law, since 21 U.S.C. 885 (a) (1) provides, inter alia, that it shall not be necessary for the United States to negative any exemption set forth in this subchapter (i.e., 21 U.S.C. 801-886) in any pleading or trial and that the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit.

It should be noted that the concept of "acting in the course of his professional practice" would not include activities such as a physician's selling controlled substances to a dealer or addict, or distributing or dispensing controlled substances to addicts merely to cater to or satisfy an appetite or craving for such drugs. 43

38 E... United States v. Maspero, supra note 19, at 1359; United States v. Crippen, 459 F.2d 1387 (3d Cir. 1972).

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

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

41 See also Linder v. United States, 268 U.S. 5, 16-22 (1925), and Boyd v. United States, 271 U.S. 104 (1926), both similarly construing a predecessor enactment.

42 See proposed Rule 25.1 of the Federal Rules of Criminal Procedure, contained in the subject bill.

4 See Jin Fuey Moy v. United States, 254 U.S. 189, 194 (1920); United States v. Collier, 478 F.2d 268, 270-272 (5th Cir. 1973); and compare Linder v. United States, supra note 41.

Section 1814.

Following existing law, the Committee does not intend that addiction be a defense to a charge of possession of a controlled substance.** 4. Grading

An offense under this section is graded generally as a Class A misdemeanor (up to one year in prison) if the controlled substance is other than marihuana; it is a Class C misdemeanor (up to thirty days in prison) if the controlled substance is marihuana. This greatly reduces the penalty for simple possession of marihuana as compared with current law, while retaining the conduct as an offense in light of the probable harmfulness of using the substance.45

SECTION 1814. VIOLATING A DRUG REGULATION

1. In General and Present Federal Law

This section deals primarily with regulatory offenses committed by those registered to handle controlled substances under the Controlled Substances Act or the Controlled Substances Import and Export Act. It carries forward without substantial change the offenses described in 21 U.S.C. 842(a) and (b), 843 (a) (1), (2), (3), and (5), and 954. 21 U.S.C. 842 (a) makes it unlawful for any person:

(1) Who is subject to the requirements of part C 46 to distribute or dispense a controlled substance in violation of section 829 of this title:

(2) who is a registrant to distribute or dispense a controlled substance not authorized by his registration to another registrant or other authorized person or to manufacture a controlled substance not authorized by his registration;

(3) Who is a registrant to distribute a controlled substance in violation of section 825 of this title:

(4) To remove, alter. or obliterate a symbol or label required by section 825 of this title;

(5) To refuse or fail to make, keep, or furnish any record, report, notification, declaration, order or order form, statement, invoice, or information required under this subchapter or subchapter II of this chapter;

(6) To refuse any entry into any premises or inspection authorized by this subchapter or subchapter II of this chapter;

(7) To remove, break, injure, or deface a seal placed upon controlled substances pursuant to section 824 (f) or 881 of this title or to remove or dispose of substances so placed under seal; or

(8) To use, to his own advantage, or to reveal, other than to duly authorized officers or employees of the United States, or to the courts when relevant in any judicial proceeding under this subchapter or subchapter II of this chapter, any information acquired in the course of an inspection authorized by this subchapter

E.g., United States v. Moore, 486 F.2d 1139 (D.C. Cir.) (en banc), cert, denied, 414 U.S. 980 (1973); cf. Powell v. Texas, 392 U.S. 514 (1968). For a contrary view, see Hearings. pp. 1468-1469 (testimony of A.C.L.U.).

45 The special provisions in 21 U.S.C. 844 (b), permitting the deferral of entry of a judg ment of conviction for a first-time offender on a charge of unlawful possession, the placing of the offender on probation, and the ultimate expungement of the conviction if the term of probation is successfully completed, have been carried forward in section 3808 of the code.

46 Part C (21 U.S.C. 821-829) deals with the registration of manufacturers, distributors, and dispensers of controlled substances.