GASCH, District Judge.
This case came on for trial on November 23, 1970. After a jury had been selected and the Government's evidence had been presented, the defendant elected to be tried by the Court and waived his right to trial by jury. The defendant is charged with violation of the narcotics laws of the United States, namely, 26 U.S.C. § 4704(a) and 21 U.S.C. § 174.
The evidence for the Government may be summarized as follows: Plainclothes officers Marshall and Lanigan were patrolling in the 900 block of Fourth Street, Northwest, in the vicinity of K Street at about 8:20 P.M. on the 14th of August, 1970. They saw the defendant with whose picture they were familiar and concerning whom they had prior information respecting narcotics matters and thereafter took him into custody and searched him. The search revealed 10 capsules subsequently found to contain heroin and 9 tinfoil wrapped packages, each containing an amount of heroin roughly equivalent to the amount normally found in four or five capsules. It was stipulated that the narcotic mixture in question contained 2,329 milligrams of heroin and other substances in the foil packets and 546 milligrams in the capsules, and that analysis would reveal that it was 5.3 percent heroin. It was also stipulated that there were no Federal revenue stamps on any of the narcotics. At the close of the Government's case, the defense made a motion for directed verdict and also renewed its earlier motion to dismiss the indictment in reliance upon the case of Watson v. United States, D.C. Cir., 1970, 141 U.S. App. D.C. 335, 439 F.2d 442. These motions were denied.
The defense then called the defendant who, among other things, admitted that he had just purchased the narcotics in question. His further testimony was to the effect that he had been an addict for 7 or 8 years during the course of which time he had received treatment at D.C. General Hospital and at a Veteran's Administration facility. Defendant's testimony was conflicting and evasive in regard to the amount of his daily habit, its cost, and how long the drugs seized in this case would last him. It seems that the defendant indicated that the present amount represented about a two-day supply, but even this answer was the subject of some conflict.
No medical evidence was introduced by either side to prove or disprove the defendant's claim of addiction, or to give information as to the characteristics of the addiction. The evidence other than defendant's testimony indicating possible addiction was the hearsay and opinion testimony of Officers Marshall and Lanigan (Transcript 22, 82) and the needle marks in defendant's arm. There was testimony that the needle marks were not fresh and also the contention that although the needle marks might indicate use, they do not necessarily indicate addiction.
The Government through cross-examination and rebuttal attempted to show that the defendant was not an addict or at least that he was not the type user of narcotics contemplated by Watson. Officer Lanigan testified that at the time of the arrest the defendant stated that he was not on "the stuff" (Transcript 79-80) and that no fresh needle marks on defendant's arm were noted. The defendant testified that he was not suffering from withdrawal symptoms and that he was on the Methadone maintenance program. (Transcript 72).
Since Watson, question has arisen as to how to deal with individuals who are charged only with possession of narcotics. Recently Judge Gesell in United States v. Ashton, D.C., 317 F. Supp. 860 (1970) dismissed the indictment charging violation of 26 U.S.C. § 4704(a) and 21 U.S.C. § 174, the same sections involved here, on the basis of Watson. The Court at that time pointed out the serious problems raised by Watson. One of those which concerns this Court is that if the defendant is found to be a "non-trafficking addict who possesses narcotics only for his own use" and the indictment is dismissed, the Court is thereby precluded from directing treatment under the Narcotic Addict Rehabilitation Act. Significantly in Ashton, though the narcotics indictments were dismissed, the defendant was eligible for treatment under NARA in that he was found guilty of a bail jumping charge. In the present case this situation does not obtain. Accordingly, if the indictment is dismissed, the Court will be unable to direct treatment. The Court finds it difficult to conclude that it was the intention of Congress or the Court of Appeals to require the discharge of an addict for the reason that he is a non-trafficking addict. Such a result would release a defendant-addict to prey on society
and/or impair his own health.
The Court agrees that jail is not the place for treatment of disease, nor is the criminal process designed for dealing with true sickness. Neither is the unsupervised return of such a person to the street. The Watson case makes frequent comparisons with insanity, but when a defendant is found incompetent to stand trial or not guilty by reason of insanity, he is not discharged to the detriment of himself or society. He is committed to a mental hospital for treatment. 24 D.C. Code § 301(d). Such treatment can under the circumstances of this case be made available for a narcotic addict.
The Court believes that an examination of Watson and the cases on which it is predicated is of assistance in the determination of the issue with which the Court is confronted. In Robinson v. California, 370 U.S. 660, 82 S. Ct. 1417, 8 L. Ed. 2d 758 (1961), the Supreme Court held unconstitutional a California statute making mere addiction a crime in that it inflicted "cruel and unusual punishment" in violation of the Eighth and Fourteenth Amendments. The Court did say, however, that "A state might impose criminal sanctions, for example, against the unauthorized manufacture, prescription, sale, purchase, or possession of narcotics within its borders * * *" or it might wish to establish " a program of compulsory treatment for those addicted to narcotics. Such a program of treatment might require periods of involuntary confinement." 370 U.S. at 664-665, 82 S. Ct. at 1419 (emphasis added). The Court in Robinson, however, excluded punishment of an addict's status standing alone for the reason that this would be punishing a disease.
It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. * * * a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. * * * In this Court counsel for the State recognized that narcotic addiction is an illness. (370 U.S. at 666, 82 S. Ct. at 1420).