U.S. V. Kremetis

• Court: District Court, D. New Hampshire
• Decided: November 14, 1995
• Docket: CR-95-69-JD
• Status: Published

Opinion

U.S. V. Kremetis CR-95-69-JD 11/14/95 P UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 95-68-01-JD

Michael Kremetis

O R D E R

This case is scheduled for jury selection on November 21,

1995. Before the court is the defendant's motion to dismiss the

superseding indictment (document no. 102).

Discussion

The superseding indictment charges the defendant with

conspiracy, 21 U.S.C. § 846, possession with intent to distribute

and aiding and abetting in the unlawful distribution of cocaine,

21 U.S.C. § 841(a)(1). The defendant's criminal activities are

alleged to have taken place entirely within the district of New

Hampshire.

In his motion the defendant asserts that the superseding

indictment must be dismissed because Congress lacked authority to

enact 21 U.S.C. § 846 and 21 U.S.C. § 841(a) (1) . He argues that

the statutes are unconstitutional on their face because "in their

present form . . . the statutes do not provide the reguired nexus

to interstate commerce and there is no jurisdictional element which would limit their application to interstate commerce."

Defendant's Memorandum in Support of Motion to Dismiss at 5. The

defendant further argues that even if the statutes at issue are

constitutional on their face, "their application to the defendant

in this case is unconstitutional as there is no allegation of

conduct on the part of the defendant or co-defendant which

'substantially affects' interstate commerce." Id.

As the defendant correctly notes, the Supreme Court recently

held that the Gun-Free School Zones Act of 1990, 18 U.S.C. §

922(g)(1)(A), exceeded Congress' authority to regulate under the

Commerce Clause, U.S. Const., Art. I, § 8, cl. 3. United States

v. Lopez, 115 S. C t . 1624, 1626 (1995). The Court reviewed the

statutory language of § 922(g) and found that it "neither

regulates a commercial activity nor contains a reguirement that

the possession [of the firearm] be connected in any way to

interstate commerce." Id. at 1626. The Court reasoned that

[s]ection 922(g) is a criminal statute that by its terms has nothing to do with "commerce" or any sort of economic enterprise, however broadly one might define those terms. Section 922(g) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

Id. at 1630 (emphasis supplied); see id. at 1634 (noting that §

2 922(q) contains "no [statutory] requirement that [the

defendant's] possession of the firearm have any concrete tie to

interstate commerce").

The defendant's reliance on Lopez is unavailinq. Unlike the

Gun-Free School Zone Act struck down in Lopez, the statutes under

which the defendant has been charqed are part of a statutory

scheme, the Comprehensive Druq Abuse Prevention and Control Act

of 1970, 21 U.S.C. § 801 et seq., which includes explicit

leqislative findinqs of a nexus between the possession and

distribution of narcotics within a state and the requlation of

interstate commerce. For example, Conqress found that:

(4) Local distribution and possession of controlled substances contributes to swellinq 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 distinquish, in terms of controls, between controlled substances manufactured and distributed interstate and controlled substances manufactured and distributed intrastate.

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

18 U.S.C. § 801. The First Circuit has not considered the

constitutionality of either § 846 or § 841(a) (1) since the Lopez

rulinq was handed down. However, in September the Fourth Circuit

ruled that § 841(a)(1) is constitutional on its face and as

3 applied against a defendant who was charged with the intrastate

manufacture of marijuana plants. United States v. Leshuk, 65

F.3d 1105, 1112 (4th Cir. 1995). The Fourth Circuit reasoned:

In contrast to the firearm possession prohibited in the Gun Act, the intrastate drug activities regulated in the Drug Act are clearly tied to interstate commerce. In passing the Drug Act, Congress made detailed findings that intrastate manufacture, distribution, and possession of controlled substances, as a class of activities, "have a substantial and direct effect" upon interstate drug trafficking and that effective control of the interstate problems reguires the regulation of both intrastate and interstate activities. . . . This Court, as well as other courts, has relied upon these findings in concluding that Congress may regulate intrastate drug activities under the Commerce Clause. Moreover, contrary to [the defendant's] alternative contention, the Drug Act is not unconstitutional as applied if his possession and cultivation were for personal use and did substantially affect interstate commerce. Although a conviction under the Drug Act does not reguire the government to show that the specific conduct at issue substantially affected interstate commerce, Lopez expressly reaffirmed the principle that "where a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no conseguence." Lopez, 115 S. C t . at 1629.

Id. (citations omitted). Several district courts have joined the

Fourth Circuit by upholding the constitutionality of Drug Act

prosecutions against Lopez-inspired Commerce Clause challenges.

See, e.g.. United States v. Murillo, 1995 WL 621797 * 2 (N.D.

Cal. Oct. 19, 1995) ("Defendant cannot contend that drug

transactions, local or otherwise, do not constitute commercial

activity, nor can she contend that the statutes at issue here are

4 not directed at commercial activity."); United States v. Grafton,

1995 WL 506001 * 5 (N.D. G a . Aug. 15, 1995) ("21 U.S.C. §

841(a)(1) and 21 U.S.C. § 846 are constitutionally valid

exercises of Congress's Commerce Clause power"); United States v.

Gonzalez, 893 F. Supp. 935, 937 (S.D. Cal. 1995) (finding "21

U.S.C. § 841(a)(1) to be a constitutional exercise of

congressional authority under the Commerce Clause").

The court is persuaded that the Fourth Circuit, as well as

the district courts cited supra, properly construed Lopez in

rejecting the constitutional attacks on the Drug Act. The court

finds that 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846 are

constitutional as enacted and as applied against the defendant in

the superseding indictment.

Conclusion

The defendant's motion to dismiss (document no. 102) is

denied.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge November 14, 1995

cc: Paul J. Haley, Esguire U.S. Attorney U.S. Marshal U.S. Probation