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October 8, 1970


Gesell, District Judge.

The opinion of the court was delivered by: GESELL

GESELL, District Judge.

 Since the decision of the United States Court of Appeals in Watson v. United States, No. 21,186 (July 15, 1970), various situations have arisen requiring trial judges to interpret and implement the court's indicated views. More than usual attention has been given by the bench and bar to dicta in this en banc decision which dealt forthrightly with difficult problems of criminal responsibility and the treatment of narcotic addicts. The instant case involves a challenge to a pending indictment, rather than an effort to reopen a guilty plea or conviction, and hence the full range of substantive and procedural questions raised by the Court of Appeals are before the Court.

 The Government has no proof of selling that can be presented to a jury, although a "buy" by a controlled anonymous informer was used to support the search warrant. It opposes dismissal on the grounds that the defendant was by his own evidence "trafficking" in drugs by occasionally giving and receiving heroin to and from a friend and fellow addict, and that defendant at the time of his arrest possessed more heroin and related gear than it is claimed would be expected of a mere user.

 The evidence at the hearing showed that defendant had been addicted off and on since 1950, and consistently since 1968. His habit required upwards of $200 per week, and in the neighborhood of 36 caps a day when available. Defendant was in stress after eight to ten hours without injection, and he experienced drastic withdrawal symptoms when deprived. He claims never to have sold heroin, and to have bought his supply on the street. Desoxyn, an amphetamine, was used to increase his high or extend it when insufficient heroin was available, or when it was of poor quality. Defendant has been in jail since May for bail jumping, and is not now a user.

 Though the ruling of the Court of Appeals on the issue of addiction as a defense was purely advisory in the Watson case, its mandate was clear:

So it is that, if Robinson's [ Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1962)] deployment of the Eighth Amendment as a barrier to California's making addiction a crime means anything, it must also mean in all logic that (1) Congress either did not intend to expose the non-trafficking addict possessor to criminal punishment, or (2) its effort to do so is as unavailing constitutionally as that of the California legislature. (Slip opinion at 19.)

 The following excerpt from Watson will serve to place the issues tendered on this motion into focus:

For the future, the addict, whose acquisition and possession of narcotics is solely for his own use and who wishes to defend on these grounds, is surely not at a loss to know how to do so. His challenge is not merely to greater, as opposed to lesser, degrees of criminal punishment. To the extent that he wishes to assert that the statutes are not to be read as applicable to him, the primary attack should * * * be by a motion to dismiss. Such a motion would presumably make an alternative claim of the constitutional defectiveness, under Robinson, of the statutes as applied to him.
In this fashion important issues * * * can hereafter be meaningfully pursued by a defendant who is prepared to take his stand upon these positions and, where necessary to the exculpatory approach being advanced, to proffer the factual foundations for them. A defendant raising these matters as affirmative defenses at trial presumably must bear the burden of going forward with evidence which places him in the category of an addict in possession of narcotics solely for his own use. If the prosecution disputes that evidence by a showing of its own, the burden of persuasion beyond a reasonable doubt would appear to rest upon it. The analogy of the traditional insanity defense is instructive in this regard.

 While the court indicates in a footnote to this excerpt that the District Court may under Rule 12(b)(4) defer ruling until trial, there is sound reason not to follow such a course in this instance. The fact of defendant's addiction is uncontroverted, and the Government does not, in the Court's view, have sufficient proof to carry its inferential claim of "trafficking" to the jury. Moreover, since problems of prejudice and self-incrimination would appear to necessitate bifurcation when requested, trial time will be greatly economized by acting on the motion before trial.

 Accordingly, this Court finds that defendant is an addict, that the heroin he possessed was for his own use, and that he is a non-trafficking possessor within the meaning of Watson. Congress never intended to include such a person within § 4704(a) or § 174, nor, given the holding in Robinson, supra, did Congress have the constitutional power to do so. Furthermore, the third count of the indictment, relating to possession of the drug Desoxyn, is governed by the rationale of Robinson and Watson, and by the holding of Easter v. District of Columbia, 124 U.S. App. D.C. 33, 361 F.2d 50 (1966). There is no need to review the authorities and arguments pro and con, for they have been repeatedly presented to the Court of Appeals which ...

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