The opinion of the court was delivered by: YOUNGDAHL
YOUNGDAHL, Senior District Judge.
The question of whether or not 26 U.S.C. § 4704 (a) was intended by Congress to apply to a non-trafficking narcotic addict, or if intended to apply could so apply without violating the cruel and unusual punishment clause of the Eighth Amendment to the Constitution was considered by the Court of Appeals for this Circuit in Watson v. United States, 141 U.S.App.D.C. 335, 439 F.2d 442 (1970). The absence of a clear trial record establishing addiction on the part of the defendant in that case mooted this crucial question in regard to the actual holding in that case. Nonetheless, there was important dicta in Judge McGowan's majority opinion which cannot be ignored. Judge McGowan said:
[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. Watson v. United States, supra, at 452.
In future cases, Judge McGowan stated, the defendant who wishes to raise his non-trafficking addict possessor status as an affirmative defense to prosecution under § 4704 (a) should do so by a motion to dismiss. The defendant would bear the burden of going forward with evidence to prove this status; and the prosecution would then have an opportunity to dispute that evidence and attempt to prove it false beyond a reasonable doubt. Watson, supra, at 454.
Thus the dicta in the Watson opinion suggests that a defendant cannot be convicted under 26 U.S.C. § 4704 (a) if he is a non-trafficking narcotics addict, although the case does not so hold. That issue is now under submission to the Court of Appeals en banc in No. 71-1252, United States v. Moore. In United States v. Ashton, 317 F. Supp. 860 (1970) the District Court followed the clear dicta of the Watson opinion and dismissed an indictment under 26 U.S.C. § 4704 (a) where the Government had insufficient proof to go to the jury on its claim that defendant was a trafficker. Later, in United States v. Wheeler, 148 U.S. App. D.C. 204, 459 F.2d 1228, D.C.Cir. decided February 22, 1971, the Court of Appeals affirmed without discussion and without prejudice to possible rights which may arise from the Court's ultimate decision in Moore, the conviction of a defendant under 26 U.S.C. § 4704 (a). Thus it is presently unclear whether or not a non-trafficking addict may raise this status as a complete defense to an indictment under 26 U.S.C. § 4704 (a).
Turning to the issue of collateral attack, the concurring opinion of Judge Wright in the Watson case noted that all the appellant's contentions except his insanity defense are available to him on collateral attack. Watson, supra, 439 F.2d at 458. In the dissenting portion of his opinion in which he concurred in part and dissented in part, Chief Judge Bazelon referred to the Federal Rules of Criminal Procedure 12 (b) (2) and noted that "the failure of an indictment or information to charge an offense shall be noticed by the court at any time during the pendency of the proceeding."
The Government in the present case, however, contends that the Supreme Court's holdings in Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970) and its two companion cases, McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970) and Parker v. North Carolina, 397 U.S. 790, 90 S. Ct. 1458, 25 L. Ed. 2d 785 (1970) are apposite to the facts here and that these holdings prevent defendant from collaterally attacking his conviction which is based on defendant's voluntary guilty plea.
In those cases the defendants had made tactical decisions to plead guilty based on their then current knowledge as to the admissibility of certain confessions and the validity of a possible death sentence after conviction by a jury. Subsequently the laws upon which the decisions had been made were held unconstitutional. The Supreme Court held that "a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise." 397 U.S., at 757, 90 S. Ct., at 1473.
In none of these three cases was the underlying constitutionality of the statute under which the defendant was indicted at issue. In the present case the constitutionality of an indictment under 26 U.S.C. § 4704 (a) as applied to the defendant is precisely the point at issue. Therefore, this case is not analogous to the Brady trilogy but rather to the decisions in United States v. Liguori, 430 F.2d 842 (2nd Cir. 1970) and United States v. Broadus, 146 U.S.App.D.C. 178, 450 F.2d 639 (1971). In Broadus the Court of Appeals for this Circuit interpreted Brady as an exception to the general rule that unknown rights cannot be waived. In the Broadus case the right at issue went to the basic validity of the criminal law which the defendant voluntarily admitted violating. The law he pleaded guilty to was later held unconstitutional, subject to a complete defense under the privilege against self-incrimination, and the defendant collaterally attacked his conviction, attempting to have it vacated. The Per Curiam opinion reasoned as follows:
. . . in essence, he pleaded guilty to nothing. The Government, therefore, does not have the usual interest in punishing a man who admits committing a crime, and the guilty plea should not be allowed to accomplish what the Government could not constitutionally accomplish through legislation. United States v. Broadus, supra, at 641.
Likewise in the present case, the petitioner asserts that he pleaded guilty to nothing because § 4704 (a) cannot constitutionally charge a crime against a non-trafficking addict. Thus it appears that if it should ultimately be found that 26 U.S.C. § 4704 (a) does not charge a crime against a non-trafficking addict, then a defendant who contends that he was a non-trafficking addict would be able to collaterally attack by the use of 28 U.S.C. § ...