Desi J. Chicquelo v. United States

452 F.2d 1310

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 28, 1972
• Docket: 21855
• Status: Published

Opinions

PER CURIAM:

This appeal from a jury conviction of a federal narcotics offense, 26 U.S.C. § 4704(a), was first heard by a panel of this court. While under submission, our en banc decision in Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970), was forthcoming; and we elected sua sponte to place this appeal en banc for the purpose of considering it in the light of the issues discussed in Watson.

We held in Watson that one who had two prior felony convictions could not, upon conviction of a federal narcotics offense, constitutionally be denied, as the Narcotic Addict Rehabilitation Act of 1966 (18 U.S.C. §§ 4251-4255) purported to do, consideration on sentencing for disposition under the provisions of Title II of that Act. We noted in Watson that there might be a serious question as to whether § 4704(a) either applies or, in the light of the Supreme Court’s decision in Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed. 2d 758 (1962), could be made to apply, to an addict in possession of narcotics solely for his own use. We did not resolve this question however, because the matter had, although raised, not been pursued in the trial court in such a way as to create a record adequate for its informed adjudication.

Our examination of this case en banc has exposed a similar situation. Although issues of a Watson nature were brought to the attention of the trial court,¹ a record admitting of their final resolution, particularly in respect of the impact of addiction at the time of the alleged violation, was not made. What is clear, however, is that, although the sentencing judge expressed the view after verdict that the case had “certain social aspects” as to which “we have (not) yet found the true solution nor the answer to the narcotics problem,” the Government’s certification in the sentencing record of two prior federal narcotics convictions foreclosed him from considering appellant, despite his conceded addiction, for disposition uhder Title II. Under these circumstances, and on a parity with our action since Watson in a number of appeals disclosing like circumstances in connection with sentencing, we affirm the conviction but vacate the sentence and remand for resentencing in which the court shall consider the extension to appellant of the benefits of Title II.²

It is so ordered.

1 . An oral motion at the opening of the trial, challenging the constitutionality of the Harrison Act, was denied as untimely. At the close of the evidence, the defense requested an instruction asserting that possession for the satisfaction of addiction was not within the statute. This was refused. A post-trial motion for acquittal alleged that appellant was not a “purchaser” within the meaning of § 4704(a). This was denied.

2 . We find no merit in the other two grounds advanced by appellant for reversal, namely, that appellant’s arrest was without probable cause and that there was inadequate proof that the substances seized could be characterized as quantitatively sufficient for use as narcotics.

1 . Appellant was convicted of a violation of 26 U.S.C. § 4704(a) (possession of narcotic drugs not in the original stamped package and without the appropriate tax-paid stamps).