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U.S. v. MARSHALL

March 1, 1989

UNITED STATES OF AMERICA, PLAINTIFF,
v.
STANLEY J. MARSHALL, DEFENDANT.



The opinion of the court was delivered by: Richard Mills, District Judge:

OPINION

Here, the Court must determine whether the blotter paper upon which chemical LSD is sprayed is to be included in calculating the drug's weight.

If so, then the amount far exceeds the ten grams required to kick in the enhanced sentencing provision, whereas if not, no enhanced sentencing provision applies.

At the close of the bench trial, after counsel for both sides had orally presented their positions, this Court ruled that the blotter paper is to be included in calculating the weight. We now reaffirm that ruling, and provide our reasons therefor.

Facts

The parties have stipulated to most of the facts of this case, which need not be set out here in great detail. Suffice it to say that Defendant was actively engaged in selling large numbers of individual dosages, or "hits," of LSD from his headquarters in California to a retail distribution network in Springfield, Illinois. Agents from Illinois and federal law enforcement agencies were able to infiltrate Defendant's operation, largely through the cooperation of two of Defendant's Springfield retailers. The upshot is that enough evidence was amassed to indict the Defendant for distribution of LSD, under 21 U.S.C. § 841(a)(1), and conspiracy to distribute LSD, in violation of 21 U.S.C. § 846. The weights of the LSD distributed by Defendant, the weight of the LSD and the blotter paper, and the number of dosage units have been summarized in the Government's trial memorandum and are reproduced here verbatim:

Government      Net Weight      Gross Weight of     LSD Dosage
Exhibit No.    of LSD Alone     LSD and Carrier       Units
-----------    ------------     ----------------    ----------
    1           137.93 mg         19.03 grams          1,999
    2           173.38 mg         23.87 grams          2,502
    3           284.96 mg         58.54 grams          5,999
    4            48.00 mg          7.16 grams            752
    5            26.45 mg          4.72 grams            499
                ---------         -----------          -----
         Total  670.72 mg   Total 113.32 grams  Total 11,751

As these numbers show, Defendant was no small-time operator — he was caught distributing 11,751 "hits" of LSD. Evidence presented at trial showed that each "hit" was sufficient for a several hour or more "trip" — in other words, Defendant distributed enough LSD to get a lot of people high for a long time.

Applicable Law

Section 841(a)(1) of Title 21 of the United States Code makes it "unlawful for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." In the event of a violation of § 841(a)(1), § 841(b)(1)(C) provides for "a term of imprisonment of not more than 20 years." This general sentencing provision, however, has recently been modified by enhanced sentences for violations involving large quantities of drugs. By means of Subtitle A of the Anti-Drug Abuse Act of 1986, Congress provided that if a violation of § 841(a)(1) occurred involving "10 grams or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD) . . . such person shall be sentenced to a term of imprisonment which may be not less than 10 years or more than life." 21 U.S.C. § 841(b)(1)(A)(v). Likewise, if the § 841(a)(1) violation involved "1 gram or more of a mixture or substance containing a detectable amount of lysergic acid diethylamide (LSD) . . . such person shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years." 21 U.S.C. § 841(b)(1)(B)(v).

It is thus clear why Defendant has argued so long and hard that the blotter paper should not be included when considering the weight of the LSD. The weight of the LSD alone here is only 670.72 mg. — not even enough for Defendant to fall into the mid-tier enhanced sentence of § 841(b)(1)(B)(v). On the other hand, including the weight of the paper brings the total weight of the "mixture or substance containing" the LSD here to 113.32 grams — well over the high-tier enhanced sentence of § 841(b)(1)(A)(v). The difference to Defendant is that between no minimum and a minimum sentence of ten years, and a maximum of twenty years or a maximum of life. High stakes, indeed.

Discussion

Defendant has launched a two-pronged attack. First, he claims that the weight of the blotter paper should not be included, and so Defendant can only be found guilty of distributing 670.72 mg. of LSD. Second, Defendant argues that the indictment charged him with distribution of over ten grams of LSD, and since, he argues, the proof only shows that ...


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