Albert Watson, Jr. v. United States

McGOWAN, Circuit Judge:

This appeal from a conviction for federal narcotics offenses was heard by the court en banc because it appeared to present important questions under Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). These derived from the circumstance that appellant was undisputedly addicted to heroin, and the Government’s ease proved only that there was found in his possession 13 capsules — about one-half of his daily usage. Appellant raised in the District Court, and here, the issue of whether the Eighth Amendment, in the light of Robinson, barred his exposure generally to criminal prosecution and punishment and, in particular, invalidated as cruel and unusual the ten-year mandatory minimum prison sentence, bereft of the ameliorative possibilities of suspension, parole, or probation, which was imposed upon him. For the reasons hereinafter appearing, we leave appellant’s conviction undisturbed, but vacate the sentence and remand for resentencing which shall include consideration by the District Court of the possible commitment of appellant under the provisions of the Narcotic Addict Rehabilitation Act of 1966. 18 U.S.C. §§ 4251-4255.

I

A. The Trial Proceedings Appellant was indicted in two counts. One charged him with having “purchased, sold, dispensed, and distributed, not in the original stamped package and not from the original stamped package, a narcotic drug, that is, thirteen capsules” of heroin, in violation of 26 U.S.C. § 4704(a).¹ The other count asserted that appellant had “facilitated the concealment and sale of a narcotic drug, that is, thirteen capsules * * * after said heroin hydrochloride had been imported into the United States contrary to law, with the knowledge of [appellant],” contrary to the prohibitions of 21 U.S.C. § 174.²

The statutory references are not contained in the body of either charge, but the caption of the indictment includes the following:

“Violation: 26 U.S.C. 4704(a)

21 U.S.C. 174

(Possession of Narcotic Drug) (Facilitation and concealment of sale of narcotic drug, knowing same to have been imported contrary to law).”

The complaint against appellant made by the arresting officer was for a violation of 26 U.S.C. § 4704(a), and alleged only that appellant did “unlawfully possess a narcotic drug, to wit, 13 capsules of heroin.” Appellant’s commitment papers pending grand jury action reiterate exactly this language of the complaint, although neither 26 U.S.C. § 4704(a) nor 21 U.S.C. § 174 purports in terms to make possession a substantive offense.

No pretrial challenge to the indictment was made, and trial before a jury in the District Court ensued after a commitment, upon appellant’s motion, to St. Elizabeths Hospital for a mental examination resulted in a finding, which was not then or thereafter challenged by appellant or his counsel, that appellant was competent to stand trial. The report also stated that appellant was without mental disease or defect at the time of the alleged offense.³

The Government’s case consisted of the testimony of two witnesses. Sergeant Didone of the Metropolitan Police testified that he obtained a search warrant for an apartment in which appellant was residing. In company with two other officers, he executed the warrant. Appellant was found in bed and, when asked whether he had any narcotics on the premises, directed the officers to look in the fly of his trousers lying on a nearby table. The officers found there a small envelope, bearing no tax stamp but containing 13 capsules of a white powder. The envelope and its contents were seized, and appellant was arrested. A preliminary field test by Sergeant Didone upon his return to the narcotics squad office showed the presence of an opiate element in the capsules.

The second prosecution witness was a government chemist, who testified that his analysis of the capsules revealed the presence of heroin, albeit in an undetermined amount.

Appellant did not testify in his own defense, which defense was represented to be the absence of guilt by reason of insanity. Two witnesses testified in support of that defense. One was Dr. Baughman, a psychiatrist on the St. Elizabeths staff, who had examined appellant during his commitment. He diagnosed appellant as having a “schizoid personality,” currently and as of the time of the offense. He also characterized appellant as being a narcotics addict and, in this connection, he related what he had been told, but which he had not verified, as to appellant’s narcotics history. This was said to have begun when appellant was in an Army hospital in Japan, receiving treatment for a battle wound suffered in the Korean War. Morphine was then given appellant by the Army to ease his pain. After the official treatment injections were discontinued, appellant began to receive heroin from a Japanese nurse who sympathized with his plight. He thereby became addicted, and in civilian life became a regular user of heroin except for those periods when he was successively in prison on two separate narcotics violations. In 1963, while 'on parole from one of such convictions, appellant began to relapse. He voluntarily reported this to his parole officer and thereafter consented to an arrest for parole violation and a return to the United States Public Health Service Hospital at Lexington, Kentucky, where he had earlier served two years of his second sentence. After he came out of Lexington, he stayed off heroin for some nine months while going to school, but again resumed his use of heroin and dropped out of school.

Dr. Baughman testified at length about appellant’s emotional insecurity and the reason for it. He conceded that appellant had “some freedom of choice” and “knew what was legal and what was not legal.”

The other defense witness was Dr. Stammeyer, a clinical psychologist at St. Elizabeths who had also examined appellant during his commitment and subjected him to a number of psychological tests. He characterized appellant as having a “personality disturbance probably best classified as a paranoid personality.”

The Government’s rebuttal witness on the insanity defense was Dr. Platkin, a St. Elizabeths psychiatrist who was Dr. Baughman’s supervisor. He expressed his view to be that appellant was not afflicted by mental illness at the time of the offense. Dr. Platkin professed himself to be satisfied that appellant was a narcotics addict, but did not find his addiction to be an indication of mental illness.

At the conclusion of this evidence, the court was asked by the defense to direct a judgment of acquittal on the ground of insanity, but declined to do so. Acquittal was then requested “on constitutional grounds in view of the decision in the Robinson case that it would be improper to criminally incarcerate an addict for his addiction.” The trial judge, without expressly ruling on the motion, observed that it depended on the fact of addiction, and that this latter question was one for the jury along with the insanity issue. Appellant’s counsel appeared to acquiesce in this reasoning, and did not press the matter further, although he asked that the motion remain of record.⁴

Neither side responded affirmatively to the court’s invitation to submit instructions, and those thereafter given were not objected to in any particular. There was no instruction that, if the jury found appellant to be an addict, it should acquit. The jury brought in a verdict of guilty; and in due course the Government filed an information as to appellant’s prior convictions. These were two federal narcotics convictions, described in the language of the information as set forth in the margin.⁵ As it was required to do under the statute by reason of these convictions, the court sentenced appellant to ten years imprisonment on each count, with neither suspension, probation, nor parole available to him. 21 U.S.C. § 174; 26 U.S.C. §§ 4704(a), 7237(a) and (d).

The sentences were directed to run concurrently with each other, and with the General Sessions sentence on the weapons charge. The court itself brought up the question of a recommended commitment to the hospital at Lexington and, after receiving an affirmative answer to its inquiry of appellant as to whether he was an addict, recommended that the sentence be served in Lexington. This recommendation has not been carried out because, with the passage of the Narcotic Rehabilitation Act of 1966, the Lexington Hospital no longer accepts for treatment persons serving regular prison terms, but takes only those who are eligible for disposition under that Act. Appellant was not so eligible by reason of his two prior narcotics convictions; and he is serving his sentence in the prison facilities of the District of Columbia.

B. The Appellate Proceedings.

On appeal to a division of this court, appellant addressed himself principally to the failure of his insanity defense. He urged that the court erred in (1) refusing to direct an acquittal on the insanity ground and (2) giving a misleading instruction on this issue. He continued, however, to press his assertion that the evidence of record showed no more than that appellant was an addict possessed of a supply of narcotics for his own use; and his constitutional formulation was, alternatively, that (1) if the insanity defense was unavailing, there was a failure of due process in the law’s omission to provide a defense of involuntariness derived from the compulsions of his addiction, or (2) Robinson v. California, supra, barred the ten year mandatory sentence under the Eighth Amendment.

The Government, like the appellant, devoted most of its attention to the insanity point. In the page and a half of its brief devoted to the constitutional claim, it relied mainly upon earlier decisions in this court which have refused to pursue the Eighth Amendment argument as one “more properly to be made to the Supreme Court.” Castle v. United States, 120 U.S.App.D.C. 398, 401, 347 F.2d 492, 495 (1964), cert. denied, 381 U.S. 929, 85 S.Ct. 1568, 14 L.Ed.2d 687 (1965). It characterized the Court’s opinion in Robinson as explicitly disclaiming any purpose to restrict the criminal prosecution of addicts to what the Court characterized as “crimes involving the sale, purchase or possession of narcotics,” and the Government asserted that appellant was not convicted “for being an addict, but for the purchase and sale of narcotics.”

The division which heard the appeal issued an opinion on December 13, 1968. Chief Judge Bazelon, writing for himself and Judge Robinson, found no error in respect of the trial court’s handling of the insanity defense, and, accordingly, left the jury’s verdict of guilt intact. On the constitutional side, the opinion appeared to turn aside appellant’s due process contention by referring to insanity and pharmacological duress as alternative defenses. See Note 18 of the division’s opinion. Its focus was upon the Robinson contention that the Eighth Amendment either forbade any criminal punishment of appellant at all, or a punishment as severe as ten years without probation or parole. As to the former, although the opinion noted the logical problems inherent in Robinson’s seeming differentiation between punishing addiction, on the one hand, and punishing possession for use, on the other, it thought that their resolution could come only from the Supreme Court. Any ardor it might have had to undertake this task was confessedly cooled by the subsequent expressions of the Court in Powell v. Texas, 392 U.S. 514, 88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968), where a bare majority found the Eighth Amendment no impediment to the criminal prosecution and punishment of a chronic alcoholic for public drunkenness.

Although Judges Bazelon and Robinson asserted a belief that “Powell does not preclude a holding that the eighth amendment prohibits punishing an addict for possessing narcotics exclusively for his own use,” they did feel that Powell puts “an unusually heavy burden of proof” upon one who contends that the punished conduct was compelled by a disease. Looking to the record, they thought that this burden was not met by appellant to the degree “required in the light of Powell, to bar any punishment whatever under the eighth amendment.”

What the opinion did purport to hold was that the particular sentence mandated for appellant was so excessive in its length and harsh in its incidence as to fall afoul of the Eighth Amendment’s ban on cruel and unusual punishments. How to implement this holding was, however, professed to present a dilemma posed by a doubt as to this court’s power to prescribe a lighter sentence, on the one hand, and a disinclination to trench upon the traditional legislative primacy in establishing sentencing policy, on the other. Thus, definitive disposition was postponed while the parties were invited to submit their views as to what that disposition should — or could — be.⁶

The issuance of the division’s opinion was first followed, however, by motions to extend the time for the invited responses until after action on certain other motions. One was a motion by appellant that the Government produce medical records of the D.C. Jail which allegedly would show narcotics withdrawal symptoms by appellant after his arrest. This was denied, as was also a motion by the Government to remand the record to the District Court for the purpose of enabling the Government to show that appellant was a seller, as well as a user, of narcotics. This motion had been preceded by the Government’s filing with the court, pursuant to the court’s inquiry at oral argument as to what was known, if anything, of appellant as a trafficker, the record of the proceedings relating to the issuance of the search warrant and the return thereon.

Sergeant Didone’s affidavit in support of the warrant relates that, four days before the search and arrest, an informer under police supervision purchased heroin capsules from appellant in the latter’s apartment, observing other capsules in the room and being told by appellant that more were available for purchase if he wished to return. The property to be searched for was, in the language of the warrant, “heroin, syringes, tourniquets, cookers and paraphernalia used in the preparation of heroin for retail,” any other paraphernalia “used in the preparation and dispensation” of heroin, and “any other narcotic drugs illegally held.” The property seized is inventoried in the return to the warrant as follows:

“Cream colored envelope containing 13 caps of white powder Nylon stocking containing 2 bottle cap cookers

1 eye dropper syringe, 2 plastic syringes, 6 needles

Cream colored envelope containing 1 bottle top cooker, 1 eye dropper syringe

2 cream colored envelopes Miscellaneous papers”

The submissions requested by the parties as to the propriety and extent of a lesser punishment were, however, received in due course, but they did little, if anything, to dispel the dilemma described in the court’s opinion. The Government adduced legislative history which purported to show that Congress, in fixing the mandatory penalties in the Narcotics Control Act of 1956, did not intend to distinguish between mere possessors of, and traffickers in, narcotics. It also thought to find in the scheme of the Narcotic Addict Rehabilitation Act of 1966 a purpose to put behind prison walls for a long stay those who are, in the Government’s words, “consistent narcotic offenders * * * no matter what the reason for their consistent violations of the law.”

The Government thus concluded that, in view of the plenary power and the patent purpose of Congress to fix mandatory prison terms for mere possessors, nothing could be done by way of visiting a lighter punishment upon appellant than the one he now bears. Should the court persist in its assertedly erroneous course, however, and require some amelioration of appellant’s sentence, the “only possible alternative” which the Government could suggest was that the court’s self-kindled constitutional flame should consume only so much of the statutory penalty provision as withheld from third and subsequent offenders, found only in possession of narcotics, the possibility of parole. This could, so it was said, conceivably be rationalized on (1) the theory that what is cruel and unusual about appellant’s sentence is the denial of parole and (2) the severability clause of 26 U.S.C. § 7852.

Appellant’s response to the court’s plea for help was even more uncompromising. He spurned the bone of parole availability proffered by the Government. He saw neither divisibility in the statutory sentencing structure, nor any authority in 28 U.S.C. § 2106 for the court to order a reduction in the sentence. He made for the first time an argument, derived from an extensive examination of the origins and subsequent history of the Jones-Miller and Harrison Acts, that Congress never intended the substantive provisions under which appellant was convicted to apply to one who is shown to be only an addict-possessor. His conclusion was that the court was empowered to do nothing except to direct the dismissal of the indictment against appellant. Were the court determined to surmount these limitations by main strength and adhere to its purpose to modify the punishment, appellant expressed a preference for parole subject to the condition that he participate in one of the public or private treatment programs currently functioning in the District of Columbia.

The matter was in this posture when the court concluded sua, sponte to place the appeal en banc. The parties filed no new or further briefs, but a comprehensive brief was received from amicus curiae, who was also permitted to participate in the oral argument before the full bench.

Not long after the case was taken under submission, it appeared that grants by the Supreme Court of certiorari in certain cases involving the legality of the presumptions contained in 21 U.S.C. § 174 and 26 U.S.C. § 4704(a) raised the possibility that this appeal might turn on an issue not heretofore raised; and the court accordingly entered an order holding the matter in abeyance pending decision by the Supreme Court of the cases in question. When those decisions were forthcoming, however, they were without effect upon appellant’s conviction. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). And see Minor v. United States, decided together with Buie v. United States, 396 U.S. 87, 90 S.Ct. 284, 24 L.Ed.2d 283 (1969).

Amicus curiae, in its brief and argument to the court en bane, urged that (1) Robinson interposed a constitutional barrier to any criminal punishment of an addict who, like appellant, was found in possession of a small amount of heroin consistent with his own daily usage, (2) the availability of the familiar insanity defense falls short of bridging the constitutional gap opened in the law by Robinson, and (3) the eligibility classification founded upon two prior felony convictions, contained in the Narcotic Addict Rehabilitation Act, and in this instance comprised of two prior narcotics offenses, denied equal protection to appellant in rendering him disqualified for disposition under that Act. Amicus pointed out, in addition, that both the Eighth Amendment and the equal protection issues could be avoided by construing §§ 4704(a) and 174 as inapplicable to an addict-possessor, and pressed this course on the court. In this latter regard, however, it did not, as had appellant in his supplemental memorandum responding to the division’s opinion, essay to demonstrate an actual intent by the Congress to restrict those statutes to traffickers.

In stating its conception of the alternative dispositions available to the court, amicus asserted that construing §§ 4704 (a) and 174 as inapplicable to appellant would necessitate dismissal of the indictment against appellant, unless the court felt that further documentation of appellant’s addiction was required as a predicate for that action, in which event a remand for this purpose would be in order. For the future, under such a construction, “the appropriate procedure,” in the words of amicus, “would be to require defendants to proceed by motion to dismiss the indictment * * with an inquiry to be made, if necessary, into the facts of addiction.

In common with appellant, amicus could discern no basis for the imposition of a lighter sentence upon appellant than the one presently in being. Thus, the only avenue open to the court under the majority opinion for the division was said to be dismissal of the indictment.

Were the court to look with favor upon the constitutional challenge to the eligibility definitions of the Narcotic Addict Rehabilitation Act, the severability clause of that Act was said by amicus to warrant the invalidation of the prior conviction disqualification, leaving the rest of the Act available for the exercise of the sentencing court’s discretion under it upon remand for that purpose.

Lastly, said amicus, if the court was impelled to formulate a new defense of involuntariness for addicts not equatable to the traditional insanity defense, then a fair trial could be had for appellant upon reversal of his existing conviction and remand for a new trial.

II

The effect of our order placing this appeal en banc is, of course, to vacate the division’s opinion; and we are, accordingly, required to address ourselves in the first instance to appellant’s claims of error in respect of the treatment in the trial court of his insanity defense. We are not persuaded that it was error for that court to commit that defense to the judgment of the jury. The record reveals the familiar pattern of conflicting expert testimony as to whether appellant's offense was the product of an “abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavioral controls.” McDonald v. United States, 114 U.S.App.D.C. 120, 124, 312 F.2d 847, 851 (1962). And see Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862 (1954). The trial court regarded appellant’s showing, which included testimony as to his drug addiction, as raising an insanity issue worthy of jury consideration, and we are not warranted in now saying that appellant was entitled on the evidence as h whole to a directed verdict.

As for the instructions, appellant sought none, and represented himself at trial as satisfied with those actually given. The errors now claimed to infect them are not strictly cognizable upon appeal, Rule 52, Fed. R. Crim. P., and, in any event, are far from being plain errors affecting substantial rights, if indeed they be errors at all.⁷

Neither do we think that this appeal, contrary to the contentions made by both appellant and amicus for the first time in this court, is properly to be disposed of by the formulation by us of a new test of criminal responsibility for narcotics addicts which departs significantly from the existing insanity defense. Apart from the fact that appellant was content to defend himself in the trial court solely on that traditional formulation and we have no record to inform us which was sought to be made by reference to some other standard, there are other problems in this approach to the extent that it is derived, as it largely purports to be, from the Eighth Amendment.

First, as Judge Bazelon concluded in his opinion for the division, the Supreme Court in Powell has left this matter of criminal responsibility, as affected by the Eighth Amendment, in a posture which is, at best, obscure. The majority in that case unmistakably recoiled from opening up new avenues of escape from criminal accountability by reason of the compulsions of such things as alcoholism and, presumably, drug addiction — conditions from which it is still widely assumed, rightly or wrongly, that the victim retains some capacity to liberate himself. In any event, so the opinion for the division concluded, Powell at the least contemplates a heavy burden of proof on one who claims to the contrary, and this record finds appellant short of discharging that burden. We read it so, as well.

Second, with the advent of Powell, this jurisdiction is one of the few in the country of which it can be said with some confidence that the law is settled that chronic alcoholism, manifesting itself as public drunkenness, is not criminally punishable. And this is so because the result we reached in Easter v. District of Columbia, 124 U.S.App.D.C. 33, 361 F.2d 50 (1966), rested upon a ground alternative to that of the Eighth Amendment as expounded in Robinson. Compare Driver v. Hinnant, 356 F.2d 761 (4th Cir. 1966); and see Merrill, Drunkenness and Reform of the Criminal Law, 54 Va. L. Rev. 1135, 1150-1151 (1968). This experience is not such as to encourage us, in the absence of further elucidation by the Supreme Court of the Eighth Amendment, to give it an expansive reading in respect of standards of criminal responsibility.⁸

Ill

We turn next to the question of whether appellant is, or can constitutionally be brought, within the reach of the statutes under which he has been convicted. In defining this issue, it is important to keep in mind precisely what those statutes provide. They do not make mere possession of narcotics a crime, although the practice is widespread of referring to it as if it were, as witness the caption of appellant’s indictment which identifies his alleged violation of § 4704(a) as “Possession of Narcotic Drug.” What that particular statute makes unlawful is the act of purchasing, selling, dispensing, or distributing narcotics except in or from the original stamped package. Possession gets into the picture only because Congress went on to provide that the absence of the stamps “shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.” In other words, possession of unstamped narcotics will, without more, permit a finding that the possessor has purchased, sold, dispensed or distributed narcotics upon which the appropriate taxes have not been paid.

Similarly, 21 U.S.C. § . 174 does not make possession a substantive offense. It prohibits the acts of importing into the United States any narcotic drug contrary to law; or of receiving, concealing, buying, selling, or in any manner facilitating the transportation, concealment, or sale of, any such drug; or of conspiring to commit any of such acts. Possession appears in the statute only as being “sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.”

Thus it is that proof by the prosecution of possession alone makes possible the conviction of a defendant for any one or more of a variety of prohibited acts as widely different as selling a narcotic, on the one hand, and buying or receiving it, on the other. Indeed, it is the common practice for indictments to charge conjunctively all the substantively forbidden acts, and for the evidence adduced at trial to show merely possession.

The effect of all this is that the non-addict dealer in large quantities of narcotics is, for purposes of substantive violations, lumped with the addict who possesses narcotics solely for his own use. Of course it is true that, as a practical matter, no addict can possess narcotics without buying, receiving, or concealing them — acts which, as was stated by one judge of the division, are “realistically inseparable from the status of addiction.” So it is that, if Robinson’s 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.

It is possible, as appellant has done in his supplemental memorandum in response to the division’s opinion, to raise a serious question as to whether Congress ever intended to include the non-trafficking addict possessor within the reach of the substantive prohibitions of § 4704(a) and § 174.⁹ Any such question becomes all the more significant as Robinson evokes the prospect of the possible constitutional invalidity of those statutes as applied to the non-trafficking addict possessor. We do not believe, however, that resolution in these terms of the appeal immediately before us is warranted. This is so because it is vital that a person charged under these statutes who defends on these grounds should do so clearly and unequivocally in the trial court, to the end that a record can be made of the facts upon which they rest. This was far from being the case in this instance.

As related above, appellant made no direct effort to explain his possession of the 13 capsules. His defense was insanity, and the defense testimony came solely from a psychiatrist and a psychologist. The former particularly related certain hearsay facts about appellant’s addictive history, but even those did not exclude or negate the possibility of trafficking or that the 13 capsules in question might have been available for sale. We cannot be entirely oblivious of the affidavit supporting the search warrant which recites a sale, and a continuing purpose to sell, by appellant four days before he was arrested, nor of the Government’s offer to prove, albeit belatedly, that appellant was a seller.¹⁰ This is, in short, not the kind of a record upon which either the trial or appellate court can confidently adjudicate a serious issue of statutory construction with constitutional implications.

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, his primary attack should, as amicus suggests, 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.¹¹

In this fashion important issues, which have been both belatedly raised in this proceeding and uniformly submerged under the presentation of an insanity defense, 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.

If a court should rule as a matter of law that the statutes either do not, or cannot constitutionally, encompass non-trafficking possessors for personal use, then an indictment which does not allege acts of trafficking arguably would be subject to dismissal as not stating a crime which the court has jurisdiction to try.

Neither of these possible approaches has been pursued here. We think that definitive rulings with respect to them cannot meaningfully be made on such a record, and are more properly to be left to the orderly processes of adversary litigation beginning at the trial court level, and with fact-finding sufficiently close in point of time to the events in question as to assure its integrity. That is the only way we know of whereby judicial, as distinct from legislative, relief, at both the trial and intermediate appellate levels, may be sought by the non-trafficking addict from the rigors of criminal prosecution under the existing federal narcotics statutes. It is certainly the only way by which the Supreme Court can, as the final arbiter of these issues, be effectively entreated to explain, more fully than it has done so far, how it is that California may not, consistently with the Federal Constitution, prosecute a person for being an addict, but the United States can criminally prosecute an addict for possession of narcotics for his personal use.

In viewing these issues as inappropriate for resolution either now or by means of a remand, we are far from leaving appellant as we found him. Although his conviction is sustained, his sentence is, pursuant to Part IV of this opinion, being vacated with directions that he be regarded on resentencing as eligible for non-criminal disposition under the Narcotic Addict Rehabilitation Act. Amicus itself has represented to us, Note 15 infra, that this action on our part “would in large measure” obviate appellant’s “problem.” It is also true that we are in a field of law which is as complex as it is of critical concern to society; which is not static in terms of emerging medical and psychiatric information of relevance; and which, accordingly, lends itself best to step-by-step development.

IV

It is obvious from the transcript of the sentencing proceedings that the trial court did not regard appellant as eligible to be considered for disposition under the provisions of Title II of the Narcotic Addict Rehabilitation Act of 1966. This is apparent from the circumstance that, after having obtained confirmation by appellant of the two prior narcotics convictions recited in the Information, the court sentenced appellant to the minimum prison terms made mandatory by statute. The court’s seeming appreciation of appellant’s addiction was then promptly manifested by its raising the question of whether appellant wished to be recommended for service of sentence in Lexington, and by making that recommendation after receiving an affirmative answer from appellant to its question as to whether he was an addict. Amicus has urged upon us the claim that the statutory classification of ineligibility founded upon two prior felony convictions is, at least as applied to appellant, so wanting in rationality as to constitute a denial of equal protection.

The provisions of the Narcotic Addict Rehabilitation Act of 1966 are prefaced by a declaration that it is

[T]he policy of the Congress that certain persons charged with or convicted of violating Federal criminal laws, who are determined to be addicted to narcotic drugs, and likely to be rehabilitated through treatment, should, in lieu of prosecution or sentencing, be civilly committed for confinement and treatment designed to effect their restoration to health, and return to society as useful members.

This policy is then sought to be implemented by a scheme of noncriminal treatment which is available not only to those charged with federal offenses but also to those who have been tried and found guilty. Provision is also made for those who voluntarily seek commitment for treatment, although they are neither charged with, nor convicted of, criminal offenses.

Title II of the Act is addressed to the convicted offender awaiting sentence. It defines an addict as one “who habitually uses any narcotic drug * * * so as to endanger the public morals, health, safety, or welfare, or who is or has been so far addicted to the use of such narcotic drugs as to have lost the power of self-control with reference to his addiction.” If the court believes that a defendant before it who has just been convicted of a federal offense is an addict, it may, in lieu of criminal sentencing, place him in the custody of the Attorney General “for an examination to determine whether he is an addict and is likely to be rehabilitated through treatment. * * * ” If, following such examination, the court makes a finding of addiction and likelihood of rehabilitation through treatment, it shall commit the defendant to the custody of the Attorney General for treatment, unless the latter shall certify that adequate treatment facilities are not available. This commitment is for an indeterminate period not to exceed ten years or the maximum sentence for the offense of which the defendant was convicted.

A defendant so committed may, after at least six months of treatment in an institution maintained or approved by the Attorney General, thereafter be conditionally released in the discretion of the Parole Board upon a report of the Attorney General and certification by the Surgeon General that he “has made sufficient progress to warrant his conditional release under supervision.” A defendant so released continues under the jurisdiction of the Parole Board and in the legal custody of the Attorney General, who “may contract with any appropriate public or private agency or any person for supervisory aftercare.”

Appellant, although unquestionably an “addict” as defined in Title II, was not an “eligible offender” as prescribed in that statute. A convicted person eligible for disposition under Title II is first broadly defined as “any individual convicted of an offense against the United States,” but this is followed by five exclusions. The first is for an offender convicted of a crime of violence. The second is for one “convicted of unlawfully importing or selling or conspiring to import or sell a narcotic drug, unless the court determines that such sale was for the primary purpose of enabling the offender to obtain a narcotic drug which he requires for his personal use because of his addiction to such drug.” The third is for one against whom there is pending a prior charge of a felony which has not been finally determined or who is on probation or whose sentence following conviction on such a charge, including any time on parole or mandatory release, has not been fully served. The fourth is for an offender “who has been convicted of a felony on two or more prior occasions.” The fifth is for one who has been given noncriminal commitments under Title I, the D.C.Code, or any state law, on three or more prior occasions.

It is the fourth of these exclusions which was thought, by reason of the two prior federal narcotics offenses reported in the sentencing information, to bar appellant from being a candidate for disposition under Title II. The Narcotic Addict Rehabilitation Act of 1966 had its source in the report of the President’s Advisory Commission on Narcotic and Drug Abuse, rendered in November, 1963, by a distinguished group of experts under the chairmanship of our beloved senior colleague, E. Barrett Prettyman. The statute envisioned in that report did not contemplate any disqualification resting upon two prior felony convictions, and it would appear from the stated purposes of the report that any such disqualification so broadly conceived would be in hopeless conflict with the findings and recommendations of the Commission.¹²

Although presumably it could be said that appellant also came under the second exclusion because, theoretically at least, he was convicted of the act of selling, it is clear that this was not in fact the operative disqualification, since that exclusion would have necessitated an inquiry into whether appellant was selling to support his habit. This second exclusion is, in any event, highly relevant, because it creates the anomaly that an addict who has demonstrably engaged in trafficking may be eligible for noncriminal disposition under Title II, whereas a non-trafficking addict found, for the third time, in possession of narcotics for his own use may not. This is curiously at odds with the Congressional preoccupation, underlying the Narcotic Addict Rehabilitation Act, with the distinction between traffickers and non-traffickers, and the reiterated purpose that “strict punishment * * * be meted out where required to the hardened criminal, while justice * * be tempered with judgment and fairness in those cases where it is to the best interest of society and the individual that such a course be followed.” H.R. Rep.No.1486, 89th Cong., 2d Sess., p. 9, U.S.Code Cong. & Admin.News 1966, p. 4250; see also S.Rep.No.1667, 89th Cong., 2d Sess., p. 17.

An addict who, at the time the 1966 Act became law, did not have two prior convictions is not disqualified from disposition under the new and enlightened provisions of the Narcotic Addict Rehabilitation Act.¹³ Contrarily, one who, like appellant, suffered criminal narcotics convictions on two occasions before 1966, is denied the rehabilitative possibilities of the new approach. Certainly when those two prior convictions are possible upon a mere showing by the Government of an addict in possession, we think the discrimination between the two classes of addicts is constitutionally unacceptable. As the Supreme Court has said in another, but not entirely irrelevant, context:

Equal protection does not require that all persons be dealt with identically, but it does require that a distinction made have some relevance to the purpose for which the classification is made.¹⁴

Even if appellant’s two prior narcotics convictions may be found to have involved actual proof of selling, and even if it be assumed that he was engaged in selling to support his habit contemporaneously with his present offense, the result we reach on this score is the same, involving, as it does, not the issue of his amenability to criminal prosecution but only his eligibility, after such prosecution and conviction, to be considered by the sentencing judge for possible disposition under Title II.¹⁵ And, although it is true that no'explicit challenge was made in the District Court to the assumption that appellant was ineligible for such consideration, we think it appropriate to deal with the issue as raised in this court. Our holding in this regard does not turn on any disputed or obscured matters of fact requiring resolution or inquiry in the first instance by the trial court. Appellant was conceded to be a narcotics addict of long standing; and this is the only fact crucial to our holding. His eligibility would have been patent but for the two prior convictions — and those were convictions for federal narcotics offenses under the same statutes involved in this appeal. We hold only that the two-prior-felony disqualifying exclusion of Title II, as applied to appellant on these facts, is unconstitutional under the concept of equal protection embodied in the Due Process Clause of the Fifth Amendment.

Accordingly, we affirm the conviction, but vacate the sentence and remand the case for resentencing, in the course of which the District Judge shall give consideration to the disposition of appellant under Title II of the Narcotic Addict Rehabilitation Act.

It is so ordered.

1 . 26 U.S.Code § 4704(a) :

(a) “It shall be unlawful for any person to purchase, sell, dispense, or distribute narcotic drugs except in the original stamped package or from the original stamped package; and the absence of appropriate taxpaid stamps from narcotic drugs shall be prima facie evidence of a violation of this subsection by the person in whose possession the same may be found.”

2 . 21 U.S.Code § 174 :

“Whoever fraudulently or knowingly imports or brings any narcotic drug into the United States or any territory under its control or jurisdiction, contrary to law, or receives, conceals, buys, sells, or in any manner facilitates the transportation, concealment, or sale of any such narcotic drug after being imported or brought in, knowing the same to liave been imported or brought into the United States contrary to law, or conspires to commit any of such acts in violation of the laws of the United States shall be imprisoned not less than five or more than twenty years and, in addition, may be fined not more than $20,000. For a second or subsequent offense (as determined under section 7237(c) of the Internal Revenue Code of 1954), the offender shall be imprisoned not less than ten or more than forty years and, in addition, may be fined not more than $20,000.

“Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.”

3 . Appellant was released upon his personal bond pending trial, but that bond was revoked within a few weeks because of the violation of release conditions and appellant’s apparent return to the use of narcotics. Before his return to custody, appellant was arrested on a charge of carrying a deadly weapon (loaded pistol) ; he pleaded guilty in General Sessions Court and was sentenced to confinement for one year. These events prompted appellant’s appointed counsel to seek a mental examination. In his supporting affidavit describing his conferences with appellant, counsel related appellant’s inability to explain these lapses, except that his addiction was of long standing and that he was under great emotional strain because he had gone to his father’s house directly upon release and had been turned away as unwelcome.

4 . The brief colloquy ended, as follows:

[Defense Counsel]: The only point I wanted to make is that in the Robinson case the holding was that an addict could not be criminally incarcerated for his addiction. We are not dealing with a crime of addiction, but we are dealing with the crime of possession, which is so closely related to addiction that it becomes one and the same, in effect.

THE COURT: Well, I think you are assuming that what you have shown is addiction, and the result depends on what the jury has been shown here. I don’t know what they think has been shown, but it has to be submitted to them. They may think that he has an addiction, but they may on the other hand think that he doesn’t have the addiction, or that he is not insane. [Defense Counsel] : I see your point, Your Honor. However, I would like to leave the motion on the record.

THE COURT: Yes, certainly. * * *

5 . 1. On or about August 31, 1953, the defendant was charged in the United States District Court for the District of Columbia with violations of the Federal narcotic statutes in Criminal Case No. 1379-53; was found guilty on or about April 26, 1954, of four counts of the indictment charging violations of 26 U.S.C. 2253a [sic] and 2554a (Harrison Narcotic Act) ; and was sentenced to imprisonment for twenty months to five years on or about May 7, 1954.

2. On or about August 2, 1954, the defendant was charged in the United ' States District Court for the District of Columbia with violations of the Federal narcotic statutes in Criminal Case No. 831-54, pleaded guilty on or about January 10, 1955, to three counts of the indictment charging violations of 26 U.S.C. § 2553(a) and § 2554(a) and 21 U.S.C. § 174 (Harrison Narcotic Act and Jones-Miller Act) and was sentenced to imprisonment for five years.

6 . In a separate opinion, the third member of the division (Judge McGowan) professed (1) to be unable “to understand how, short of being given narcotics under duress, one can be a narcotics addict without periodically possessing narcotics” for personal use, and (2) to share Justice White’s observation in Powell (at pp. 548-549 of 392 U.S., at p. 2162 of 88 S. Ct.) that “[U]nless Rohinson is to be abandoned, the use of narcotics by an addict must be beyond the reach of the criminal law.”

7 . Appellant’s principal claim of reversible error in the charge is that the court “stated or implied that in order to find appellant not guilty by reason of insanity appellant must have a total — rather than a substantial — lack of ability to refrain from doing” the wrongful act charged. But the court nowhere used the word “total,” and appellant concedes that the court correctly defined at the outset of its instructions the “mental disease” which would absolve appellant as “any abnormal condition of the mind which substantially affects mental or emotional processes and substantially impairs behavior controls.” (Emphasis supplied.) Its references thereafter, of which appellant now complains, to the jury’s duty to determine whether appellant had the “ability or lack of ability” to refrain from wrongful action were framed, and undoubtedly understood, in the light of the earlier definition.

8 . Only the Eighth Amendment is referred to in the section of amicus’s brief under the heading “Constitutional and Statutory Provisions Involved.” Argument I of its Summary of Argument explicitly rests on Robinson, and Argument II, which sounds the call for a new test of criminal responsibility, starts by saying that “[T]he availability of an insanity defense does not bridge the constitutional gap discussed in Argument I.” In the body of the brief arguing for a new formulation, no reference is made to any provision of the Constitution, although appellant himself has suggested in his papers that due process requires a new definition of criminal responsibility beyond that of insanity. What is asked for by amicus is in essence a doctrine of pharmacological duress, a defense which Judge Bazelon for the division majority assumed to have been available to appellant but to involve a heavy burden of proof not met by appellant on this record. As noted above, appellant’s post-decision motion to produce alleged evidence of withdrawal symptoms immediately after arrest was denied by unanimous vote of the division.

9 . Appellant’s detailed and not implausible analysis of this issue was in response to the Government’s effort in its supplemental memorandum to demonstrate, by reference to the legislative history of the penalty increases made by Congress in 1956, the intent to treat the addict-possessor the same as addicts or non-addicts proved to be trafficking. But, as appellant cogently asserts, changes in penalties are not the same as changes in the substantive definitions of crimes. He points out that § 174 is part of the Jones-Miller Act, passed in 1909 and derived from an anti-smuggling law of 1866. Its purpose was to prevent the flow of narcotics into the country, and it was founded on the Commerce Clause.

Section 4704(a), by contrast, is part of the Harrison Act originally enacted in 1914 and cast in the form of a taxing measure because of fears for the constitutionality of reliance upon the commerce power. The objective of the Harrison Act was to prevent legally imported narcotics from making their way, ordinarily through tlie activities of physicians, into unauthorized hands. Bee, in this regard, United States v. Jin Fuey Moy, 241 U.S. 394, 36 S.Ct. 658, 60 L.Ed. 1061 (1916),' where the Supreme Court appears to have held that mere possession of a small amount of narcotics for personal use did not bring into operation the statutory presumption of . illegal acts. Although the Harrison Act succeeded in its goal of regulating and containing lawfully imported drugs in lawful channels, it failed, as one acute observer has said, “to cope with the enormous flow of smuggled drugs that are distributed to addict-consumers without ever entering the regulated channels at all.” King, Narcotics Drug Laws and Enforcements Policies, 22 Law & Contemp.Prob. 113, 118 (1957).

When, after World War II, Congress turned its attention to the formidably increased and increasing illicit drug traffic, it focused that attention only upon penalties, and not upon the substantive provisions of the existing laws. In 1951, and again in 1956, it markedly enhanced the severity of the punishments to be meted out upon conviction. Despite a fervent plea by the American Bar Association for a reexamination of the substantive scheme and a warning that the confusions and obscurities of that scheme raised the possibility of prisons crammed with addicts serving mandatory sentences, the Congress persisted in its apparent belief that all that was needed was larger penalties. It did not abandon this approach until it passed the Narcotic Addict Rehabilitation Act of 1966.

Appellant asserts that, although it is clear that Congress did not distinguish between the addicted and the non-addicted trafficker in its preoccupation with punishment, it is by no means clear that it grouped the mere addict possessor for use with these other categories. And, of course, mere amendment of punishments does not, in and of itself, alter the substantive definition of crimes in the underlying statutes. It is appellant’s submission that the latter were never intended to embrace the non-trafficking addict possessor, and that words like “purchase,” “receive”, and “conceal” were used in relation to acts of participation in illegal importation, trading, and distribution.

10 . As the division’s opinion notes, the Government, at the oral argument before the division and on other occasions, has represented that it is not its policy to pursue under the statutes in question persons whom they do not believe to be traffickers. These informal assurances are, however, hardly a substitute for facts of record.

11 . Rule 12, Fed.R.Crim.P., deals with the raising of defenses and objections before trial. Rule 12(b) (1) contemplates that any defense or objection to the indictment “which is capable of determination without the trial of the general issue may be raised before trial by motion;” and of course it is true that it is in the interests of good judicial administration that they shall be so raised whenever possible. Whether a defendant is a non-trafficking addict possessing narcotics solely for his own use would not appear to be the same as the general issue of whether he was in possession of narcotics as charged in the indictment. It would appear rather to partake of the nature of a defense to the effect that possession under such circumstances has not been made criminal under the statutes as properly construed, or cannot be made criminal without colliding with the Constitution. Hearings on a pretrial motion raising defenses and objections may always, in the trial court’s discretion, “be deferred for determination at the trial of the general issue.” Rule 12(b) (4).

12 . The Senate and House versions of the Act differed on this exclusion from eligibility of those having two prior felony convictions, with the Senate enactment having no such provision. There were many expressions on the Senate floor as to the undesirability of excluding from the rehabilitative reach of the bill the large class of addicts who would have two prior convictions. The House bill prevailed on this point in conference. The conference report says only that the Senate conferees “felt it reasonable to exclude hardened offenders with serious criminal records. * * * ”

Both House and Senate were initially in accord on the exclusion of an offender convicted of a crime of violence. The two-prior-felony exclusion is not, however, limited to convictions for crimes involving violence. Thus, an addict having two prior felony convictions for securities fraud would not be eligible for disposition under the Act. When this provision was criticized on the House floor as likely to “exclude from coverage precisely those addicts who most need medical treatment and rehabilitation services,” a defender, who later served on the conference committee, said that the Act was designed to help “the narcotic addict who is secondarily guilty of some sort of minor or nonviolent offense.” (Emphasis supplied.) Upon this rationale, it appears utterly illogical, in terms of the Act’s purposes, not to restrict, at the least, the exclusion to prior crimes involving violence.

13 . It is true, of course, that an addict in this category will, upon a subsequent second felony conviction, become ineligible under the terms of the Act. But this overlooks the fact that his chances of never having that second conviction are markedly enhanced by his eligibility, prior to prosecution, for rehabilitative commitment under Title I of the Act. And even in the unlikely event that a second felony conviction should eventuate after 1966, it is by no means clear that to treat it as disqualifying an addict for noneriminal rehabilitative commitment would constitute a defensible classification in relation to the purposes of the Act. On the record before us we are not confronted with these hypothetical cases or others that could be envisaged; and, accordingly, we do not anticipate their disposition.

14 . Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 15 L.Ed.2d 620 (1966); and see Bolton v. Harris, 130 U.S.App.D.C. 1, 395 F.2d 642 (1968).

15 . One court has regarded the advent of the Narcotic Addict Rehabilitation Act as a reason why great caution should be exhibited in undertaking “extension of Robinson beyond a line expressly drawn by the Supreme Court, especially when Congress has carefully contrived a procedure for dealing with this grievous social problem.” Bailey v. United States, 386 F.2d 1, 4 (5th Cir. 1967). Although the Act cannot be a final solvent of some of the claims not irrationally rooted in Robinson, it is true that, as amicus says in its brief, “the problem in this case would in large measure be obviated if appellant could be treated under the Narcotic Addict Rehabilitation Act, from which he is excluded as a twice previously convicted offender.”