WILKEY, Circuit Judge:
Appellant was arrested and charged with a violation of the federal narcotics laws, after a police officer on foot patrol had observed him in an ice cream store counting out capsules into the hand of a fifteen-year-old. A search of the appellant revealed that he was carrying additional capsules and a white powder in a package; ten capsules were recovered from the juvenile, who was also arrested. The capsules and the package contained heroin.
At his trial before a jury appellant presented uncontradicted evidence which tended to show that the capsules were to be delivered by the juvenile to his father. The defense case was grounded on an insanity defense, which appellant attempted to establish by presenting three expert witnesses. On several occasions while these three witnesses were on the stand, the trial court took over questioning from defense counsel. Upon completion of the defense case, appellant’s counsel moved for a mistrial on the basis of the court’s alleged excessive participation in the examination of these witnesses. The motion was denied.
The jury found appellant guilty on all four counts of an indictment charging [866]*866him with (1) sale of narcotic drugs to a juvenile,1 (2) sale of narcotic drugs,2 (3) possession of narcotic drugs not in the original stamped package, 3 and (4) receipt and concealment of narcotic drugs.4 He was sentenced under Title II of the Narcotic Addict Rehabilitation Act of 1966, 5 was subsequently found to be an eligible offender, and the record indicates that he is presently undergoing treatment in the Federal Correctional Institution in Danbury, Connecticut.
On this appeal appellant raises three contentions: (1) that the court below prejudiced the appellant’s right to a trial by jury by the court’s substantial participation in the examination of defense witnesses; (2) that the lower court’s refusal to permit appellant to be committed under Title I of the Narcotic Addict Rehabilitation Act of 1966 was a denial of equal protection of the law; and (3) that the first count of the indictment, charging sale of heroin to a minor, should have been dismissed because of evidence indicating that the minor did not receive the drug for himself. We find the appellant’s contentions to be without merit, and we affirm the judgment and sentence of the trial court.
I. The Participation of the Trial Court in the Questioning of Defense Witnesses
In Washington v. United States6 we placed a burden on trial courts where the insanity defense is raised to ensure that the jury bases its determination of blameworthiness on relevant behavioral data:
[Testimony in terms of “mental disease or defect” seems to leave the psychiatrist too free to testify according to his judgment about the defendant’s criminal responsibility. . . . This kind of testimony does not give the jury a satisfactory basis for determining criminal responsibility. A proper adjudication requires that the jury be fully informed about the defendant’s mental and emotional processes and, insofar as it affects these processes, his social situation. . . .With the relevant information about defendant, and guided by the legal principles enunciated by the court, the jury must decide, in effect, whether or not the defendant is blameworthy. . . . The trial judge should limit the psychiatrists’ use of medical labels— schizophrenia, neurosis, etc. It would be undesirable, as well as difficult, to eliminate completely all medical labels, since they sometimes provide a convenient and meaningful method of communication. But the trial judge should ensure that their meaning is explained to the jury and as much as possible, that they are explained in a way which relates their meaning to the defendant.7
These standards which guide the trial court can and often do require the court’s active participation in the examination of witnesses, a fact which we have recognized for some time.8
Reviewing the record in this case, and being mindful of our recent observation that a merely quantitative approach cannot determine whether the judge’s participation in questioning is improper, United States v. Wyatt,9 we find that the defense testimony in this case was often unclear, sometimes woefully muddled, and we cannot say that the trial court in its attempts to clarify [867]*867stepped out of bounds. We find that the trial court’s participation was an acceptable effort to conform with the Washington standards, and obviously any such affirmative action on the trial judge’s part creates some problems of its own. Of these the trial judge was keenly aware and sought to overcome them by an instruction to the jury, which admonished them that they were “not to draw any inference whatsoever from any questions the Court asks, or anything the Court does or says as to how the Court feels the case should be decided.” 10 We are unable to find that the trial court’s participation deprived the appellant of his right to a trial by jury or prejudiced him in any manner calling for a new trial.
II. The Refusal to Commit the Appellant under Title 1 of NARA
Appellant argues that by denying addicts, like himself, who sell narcotics to feed their habits, pre-conviction treatment under Title I,11 Congress has arrived at a classification “which plainly violates the Constitution’s guarantee of equal protection of the laws.” 12 In view of the availability of Title II13 post-trial commitment for addicts, however, we are inclined to accept the view of the Government that the two titles represent a “balancing” between the policies of discouraging the sale of narcotics and facilitating the treatment of addicts.14 Congress has decided to allow the less blameworthy non-trafficking addict an additional opportunity for treatment not available to the trafficking addict; it is not for us to make the policy judgment that the legitimate goal of deterrence is not thus properly served.
Given this express deterrent policy, and the recorded need for an accommodation between the views of those in Congress who felt that all addicts should be treated civilly, and those who felt that all traffickers should be punished criminally,15 we must recognize that “equal protection does not require that all persons be dealt with identically,” and that here we have a distinction with “some relevance to the purpose for which the classification is made.” Baxstrom v. Herold.16
III. The Refusal to Dismiss the Count Charging Sale of Heroin to a Minor
Appellant takes the position on this appeal, as he did in the trial court, that 21 U.S.C. § 176b should not be applied to transfers of narcotics to juveniles when the narcotics are not for the juvenile’s own use, and the juvenile acts as a “mere agent.” 17 It would be helpful if there were some case law to guide us here, but apparently there is none.
Free access — add to your briefcase to read the full text and ask questions with AI
WILKEY, Circuit Judge:
Appellant was arrested and charged with a violation of the federal narcotics laws, after a police officer on foot patrol had observed him in an ice cream store counting out capsules into the hand of a fifteen-year-old. A search of the appellant revealed that he was carrying additional capsules and a white powder in a package; ten capsules were recovered from the juvenile, who was also arrested. The capsules and the package contained heroin.
At his trial before a jury appellant presented uncontradicted evidence which tended to show that the capsules were to be delivered by the juvenile to his father. The defense case was grounded on an insanity defense, which appellant attempted to establish by presenting three expert witnesses. On several occasions while these three witnesses were on the stand, the trial court took over questioning from defense counsel. Upon completion of the defense case, appellant’s counsel moved for a mistrial on the basis of the court’s alleged excessive participation in the examination of these witnesses. The motion was denied.
The jury found appellant guilty on all four counts of an indictment charging [866]*866him with (1) sale of narcotic drugs to a juvenile,1 (2) sale of narcotic drugs,2 (3) possession of narcotic drugs not in the original stamped package, 3 and (4) receipt and concealment of narcotic drugs.4 He was sentenced under Title II of the Narcotic Addict Rehabilitation Act of 1966, 5 was subsequently found to be an eligible offender, and the record indicates that he is presently undergoing treatment in the Federal Correctional Institution in Danbury, Connecticut.
On this appeal appellant raises three contentions: (1) that the court below prejudiced the appellant’s right to a trial by jury by the court’s substantial participation in the examination of defense witnesses; (2) that the lower court’s refusal to permit appellant to be committed under Title I of the Narcotic Addict Rehabilitation Act of 1966 was a denial of equal protection of the law; and (3) that the first count of the indictment, charging sale of heroin to a minor, should have been dismissed because of evidence indicating that the minor did not receive the drug for himself. We find the appellant’s contentions to be without merit, and we affirm the judgment and sentence of the trial court.
I. The Participation of the Trial Court in the Questioning of Defense Witnesses
In Washington v. United States6 we placed a burden on trial courts where the insanity defense is raised to ensure that the jury bases its determination of blameworthiness on relevant behavioral data:
[Testimony in terms of “mental disease or defect” seems to leave the psychiatrist too free to testify according to his judgment about the defendant’s criminal responsibility. . . . This kind of testimony does not give the jury a satisfactory basis for determining criminal responsibility. A proper adjudication requires that the jury be fully informed about the defendant’s mental and emotional processes and, insofar as it affects these processes, his social situation. . . .With the relevant information about defendant, and guided by the legal principles enunciated by the court, the jury must decide, in effect, whether or not the defendant is blameworthy. . . . The trial judge should limit the psychiatrists’ use of medical labels— schizophrenia, neurosis, etc. It would be undesirable, as well as difficult, to eliminate completely all medical labels, since they sometimes provide a convenient and meaningful method of communication. But the trial judge should ensure that their meaning is explained to the jury and as much as possible, that they are explained in a way which relates their meaning to the defendant.7
These standards which guide the trial court can and often do require the court’s active participation in the examination of witnesses, a fact which we have recognized for some time.8
Reviewing the record in this case, and being mindful of our recent observation that a merely quantitative approach cannot determine whether the judge’s participation in questioning is improper, United States v. Wyatt,9 we find that the defense testimony in this case was often unclear, sometimes woefully muddled, and we cannot say that the trial court in its attempts to clarify [867]*867stepped out of bounds. We find that the trial court’s participation was an acceptable effort to conform with the Washington standards, and obviously any such affirmative action on the trial judge’s part creates some problems of its own. Of these the trial judge was keenly aware and sought to overcome them by an instruction to the jury, which admonished them that they were “not to draw any inference whatsoever from any questions the Court asks, or anything the Court does or says as to how the Court feels the case should be decided.” 10 We are unable to find that the trial court’s participation deprived the appellant of his right to a trial by jury or prejudiced him in any manner calling for a new trial.
II. The Refusal to Commit the Appellant under Title 1 of NARA
Appellant argues that by denying addicts, like himself, who sell narcotics to feed their habits, pre-conviction treatment under Title I,11 Congress has arrived at a classification “which plainly violates the Constitution’s guarantee of equal protection of the laws.” 12 In view of the availability of Title II13 post-trial commitment for addicts, however, we are inclined to accept the view of the Government that the two titles represent a “balancing” between the policies of discouraging the sale of narcotics and facilitating the treatment of addicts.14 Congress has decided to allow the less blameworthy non-trafficking addict an additional opportunity for treatment not available to the trafficking addict; it is not for us to make the policy judgment that the legitimate goal of deterrence is not thus properly served.
Given this express deterrent policy, and the recorded need for an accommodation between the views of those in Congress who felt that all addicts should be treated civilly, and those who felt that all traffickers should be punished criminally,15 we must recognize that “equal protection does not require that all persons be dealt with identically,” and that here we have a distinction with “some relevance to the purpose for which the classification is made.” Baxstrom v. Herold.16
III. The Refusal to Dismiss the Count Charging Sale of Heroin to a Minor
Appellant takes the position on this appeal, as he did in the trial court, that 21 U.S.C. § 176b should not be applied to transfers of narcotics to juveniles when the narcotics are not for the juvenile’s own use, and the juvenile acts as a “mere agent.” 17 It would be helpful if there were some case law to guide us here, but apparently there is none. In view of this paucity, the plain words of the statute, and the possibility of juvenile use of narcotics even when they are not sold for him, we think appellant’s contention must fail.
The penalty provisions of the statute here in question apply to “whoever, having attained the age of 18 years, knowingly sells, gives away, furnishes or dispenses . . . any heroin unlawfully imported or otherwise brought into the United States, to any person who has not attained the age of 18 years. ...” There is no exception in the statute for those who transfer heroin to minors for the use of adults. Appellant observes, rightly we think that Congress was concerned about youths being intro[868]*868duced to the use of drugs or otherwise pulled into the stream of drug distribution. We also think it plain, however, that the drugs given to the youth do not have to be intended for him in order for him to be introduced to their use or drawn into drug-dealing. We can foresee juveniles tempted to use themselves the drug intended for another, or to transfer the drug, meant for an adult, to another juvenile. At the very least, the transaction cannot fail to excite the juvenile’s curiosity about what the capsules contain and why people buy them; at the very worst, it might tempt him to try them or to realize profits from their sale, and thus plunge him into the stream of drug distribution. We agree-with the District Court and the Government that the only safe rule is that a juvenile may not be made an agent to transfer heroin, whether it be intended for his own use or not, without running afoul of 21 U.S.C. § 176b.
The judgment of the District Court is Affirmed.