William H. Rehnquist: We'll hear argument next in Number 00-151, the United States v. Oakland Cannabis Buyers. General Underwood.
Barbara D. Underwood: Mr. Chief Justice, and may it please the Court: The Controlled Substances Act prohibits the distribution of marijuana outside federally authorized research programs because Congress, the Attorney General and the Secretary of Health and Human Services have each determined that there is no currently accepted medical use for the drug, and it has a high potential for abuse. The statute also recognizes that new information might come to light that would justify less restrictive controls so it establishes administrative procedure for changing the classification and the restrictions for marijuana and other controlled substances. That statutory scheme leaves no room for the Oakland Cannabis Buyers' Cooperative to distribute marijuana without the approval of the Attorney General under a claim of medical necessity, and it leaves no room for a court to consider such a claim as a basis for refusing to enjoin the marijuana operations of the cooperative. The Ninth Circuit's ruling in effect authorizes the operation of marijuana pharmacies outside the safeguards and restrictions of the Act and undermines the ability of the Act to protect the public from hazardous drugs. The common law defense of necessity can sometimes authorize a person to violate the law in order to avoid a more serious harm but it doesn't apply here for three reasons. First, because the legislature has already balanced the harms and come to a different conclusion. Congress anticipated there would be claims of medical uses for controlled substances and provided an administrative procedure for evaluating them allowing trial judges and juries to redetermine that balance in individual cases would undermine the procedure established by Congress. Second, because the defense has no application because the co-ops members and the co-op itself have alternatives to violating the criminal law. They have substantive alternatives, other lawful medications including a synthetic form of the active ingredient of marijuana.
John Paul Stevens: May I ask one question on that subject Ms. Underwood? You have a footnote in your brief, footnote 11, that describes some of the situations there that gives the impression that this whole case is a sham, that it's really just a front for using marijuana and I'm wondering if... and your argument you're just making now suggests there are always alternatives. Do you think we should take the case on the assumption that there really are some people for whom this is a medical necessity or should we assume that there are no such people.
Barbara D. Underwood: The... on the assumption that there are no such people because the Food and Drug Administration charged with evaluating the medical... the scientific information and the DEA, that is the agency that report to the Attorney General and the Secretary of Health and Human Services having evaluated the claims of medical use have found that there is no accepted medical use, that some of the claims of medical use are simply wrong.
Ruth Bader Ginsburg: General Underwood, may I just stop you there because take one of the examples that was in the brief, the one about the man who was constantly vomiting and the only thing that calmed him down, he had a lymphoma or something like that, that is not an uncommon experience and what surprised me about this case was that that kind of thing has been going on, individual doctor prescribing marijuana just to prevent that kind of extreme suffering, and that seemed to have gone without enforcement until California passes this proposition and you get clinics selling it, not individual doctor. Am I wrong in thinking that there has been quite a bit of this going on in the medical profession.
Barbara D. Underwood: The record doesn't reflect and I don't know how much of it has been going on. I think there are two things to say in response to that though, one is that the agencies charged with evaluating the medical uses here have ongoing studies and have so far concluded that there are... that the particular use that you're describing is best served... there's now an extract of marijuana that's been on the market... been available and been put on the lower schedule than schedule one for 15 or 16 years which is this Marinol and efforts are being made to find other methods of administering the pure substance and determining whether it has the effect that's described.
Antonin Scalia: Ms. Underwood, these judgments made by the federal agencies, the FDA and the DEA, I think they take into account the overall public interest, I mean, they... I'm not sure that they have come to the conclusion that marijuana would never ever, ever be helpful to someone who's in extreme pain. I think what they've probably done is made the judgment that the chances of its being that helpful and not being replaceable by something else are so slim that in view of the abuses to which general permission for its use would lead it's best that it be proscribed, is that an inaccurate determination on my part? Could you really say that there has been a determination by the federal government that marijuana is never medically useful.
Barbara D. Underwood: Well the determination that's been made is that the medical utility of it has not been established which is a slightly different way of putting it but there is a separate determination the FDA makes determinations as it does with substances that aren't on the controlled substances list, that is there are new drugs that are proposed all the time which might possibly be useful and aren't authorized for use until after tests satisfy the FDA that the drug is safe and effective for use and marijuana has not passed that screen. There is an additional screen for controlled substances that is in addition to considering and the scheduling decision takes into account not just medical utility but also the potential for abuse, but the FDA's role in it, the Health and Human Services role in it is just to assess or it has a role in simply assessing the medical evidence and has concluded that to date there is insufficient reason to think that it is a safe and effective drug although there are continuing research projects going on to try and pursue the anecdotal information that it is sometimes helpful or that components of marijuana are sometimes helpful.
Ruth Bader Ginsburg: Ms. Underwood, it would help me, General Underwood, if you would tell me why the word preemption doesn't appear in the government's brief because I took the simple-minded approach looking at this, Congress says this is a schedule one drug and California says you can have it if you've got a note from a doctor that says you have a migraine headache. Why isn't the federal law that says this is the schedule one drug preemptive, it must have been with some thought that you didn't use that word.
Barbara D. Underwood: Well the California law doesn't actually purport to authorize the distribution of marijuana with a doctor's note, it provides a defense to California law. Now it is true that an effort is being made here to invoke the judgment behind that law as in support of the claim of medical necessity, but California didn't purport to create a defense to federal law as it couldn't have if it had tried it would have been presumably preemptive... preempted. But it's perfectly possible to comply with both California law and federal law. There isn't that kind of conflict here.
Ruth Bader Ginsburg: Explain that to me because I thought to comply with federal law you can't sell it.
Barbara D. Underwood: Well that's right but California law doesn't require you to sell it. It simply says that you won't be... California could remove the... could eliminate--
Ruth Bader Ginsburg: All it says you'll be at the mercy of the feds and we won't go after you.
Barbara D. Underwood: --That's correct. That's correct. And I should say that the decision of the federal agencies not to accept the kind of anecdotal evidence that you're suggesting is a decision that the federal... the Food and Drug Administration has made again not just in the controlled substance area but it has concluded that the anecdotal reports of individuals are a basis for research, a reason to conduct research and not a basis for authorizing the use of a drug or changing its scheduling.
Anthony M. Kennedy: General Underwood, there's some indication in the trial court's observation, he had no choice but to enter this injunction, that's something of an over-reading, but suppose I were the district judge and I said, you know, General Underwood, you want me to basically supervise what's going to be a major effort to prosecute people and you're doing this under my contempt power, I don't want the court to get involved in this, you have your own United States and assistant United States attorneys, you have investigate these, bring these as prosecutions and then we'll hear these cases and if there's a necessity defense or something we can rule on it, but you're basically asking me to issue an injunction and in order to enforce it I'm going to have to make prosecutorial decisions, I don't want to be bothered with that because I think it intrudes upon a separation of powers balance, it's making me more of a prosecutor than a neutral judge. If he said that would he be abusing his discretion?
Barbara D. Underwood: Yes. There are grounds on which a court can deny injunctive relief. For example, if the court found that violations had stopped and are unlikely to recur and an injunction wasn't necessary to effectuate the purposes of the act, this Court noted that in Hecht against Bowles, and there may be other grounds but I would say that the judge who said what you just said would be, in fact, intruding on Article II executive prerogatives by insisting that when Congress has provided both civil and criminal enforcement mechanisms as it often does that the executive is not free to choose the enforcement mechanism, the civil enforcement mechanism that--
John Paul Stevens: May I ask this question, does the executive, the district attorney have prosecutorial discretion not to bring a case if he thinks a particular defendant really is a person that has this serious illness and so forth.
Barbara D. Underwood: --There's always prosecutorial discretion.
John Paul Stevens: Why would a judge have less discretion than a prosecutor?
Barbara D. Underwood: The judge has different discretion from a prosecutor, it is for the prosecutor to decide whether a case merits prosecution or whether a civil injunction is worth bringing.
John Paul Stevens: If the judge reacts to precisely the same reasons that motivate a prosecutor not to bring a case, would that be an abuse of discretion?
Barbara D. Underwood: Yes it would. The court's role in the process is not the executive's role. The court cannot deny an injunction on the grounds that the executive should for instance have chosen the criminal sanction or should not have brought the case at all. If--
Anthony M. Kennedy: Suppose the judge has legitimate concerns that given the resources of the court that it's going to make him basically substitute for the United States attorney in the Northern District of California, he's going to have to decide who to prosecute for contempt and it's going to be criminal contempt and so forth, basically it seems to me that he's now being put in the role of the supervising prosecutor just in order to enforce his injunction.
Barbara D. Underwood: --Well no the contempt actions of him would be brought by prosecutor and I'd like to point out why civil--
Anthony M. Kennedy: I'm sure that he has or should have a major say in how he's going to enforce his injunction, who he's going to bring to court for the contempt action in the first instance, what kind of examples he's going to make, et cetera.
Barbara D. Underwood: --There's a reason why civil injunctive enforcement is authorized and why it's appropriate. I don't think it's for the court to second-guess the prosecutor but there is a reason. The civil injunctive remedy in this statute was patterned on a similar provision in the Food, Drug and Cosmetic Act, and the purpose of that was to provide a way to resolve legal disputes without the harshness of a criminal prosecution. This is just that kind of dispute, open and ongoing violations of the law designed to test its statute with the California state law in the background, once... there's no reason to think that once a court resolves the question that... holds, for instance, that there is no medical necessity defense or holds that in any event whatever medical necessity defense there might be doesn't authorize the operations of marijuana pharmacies as in this case, that the Oakland Cannabis Buyers' Cooperative won't comply with the law.
David H. Souter: Well, maybe it will, but isn't the real concern, and I want to state a variant on Justice Kennedy's question, isn't the real concern behind this that with the passage of the California proposition and the popularity within the California population that that necessarily entails, it will be very, very difficult for the government ever to get a criminal conviction in a jury trial, and the reason, it seems to me, that the reason I assumed this was being brought was to avoid hung juries in criminal cases. If the trial court in fact were to conclude that that is the reason and that's why the injunctive remedy was being invoked, would that be a good reason for the court to say it is not certainly a necessary and maybe not an appropriate use of equity to give the government an alternative to six month or less sentences for criminal contempt in order, in effect, to make a criminal statute enforceable which in the normal criminal course is not. Would that be an abuse of discretion?
Barbara D. Underwood: Not if the statute authorizes a civil injunctive remedy and... but I would like--
Antonin Scalia: It would not be an abuse of--
Barbara D. Underwood: --Excuse me. I misspoke. That would not be--
Antonin Scalia: --You scared me there for a minute.
Barbara D. Underwood: --It would be an abuse of discretion. It would not be an appropriate ground for withholding injunctive relief but I would like to point out that the statute, this statute, perhaps out of a concern like that or perhaps for some other reason, contains a jury trial requirement... provides a jury trial for a trial of the contempt of an injunction that is obtained--
David H. Souter: No matter what the lengths of sentence requested?
Barbara D. Underwood: --Yes.
Antonin Scalia: General Underwood, do you agree with all of the premises of these questions? I mean is--
Barbara D. Underwood: No.
Antonin Scalia: --Is it true that California juries generally don't convict people of crimes that they don't agree with? Is that the practice in... I haven't lived in California in quite a while but California juries only enforce those criminal laws they like, is that the general practice.
Barbara D. Underwood: I have no information about that but I would like to point--
Antonin Scalia: Do we know whether this United States attorney brought this as a civil... as a civil matter precisely because of the legal doubt or rather in order to avoid a jury trial, do we have any idea which of the two it is.
Barbara D. Underwood: --I was not... I don't have the answer to that question but I know--
Antonin Scalia: And of course, this entire argument would disappear if Congress eliminated the criminal penalty and then presumably the U.S. attorney would be free to get as many injunctions as he liked with the same consequences.
Barbara D. Underwood: --I should think so. I would just like to--
Ruth Bader Ginsburg: There's one aspect of this General Underwood that Respondent says and this I think you might know the answer to, Respondent says that overwhelmingly this Act is enforced by a criminal prosecution rather than civil injunction. And do you know that, what is the enforcement practice with respect to the CSA.
Barbara D. Underwood: --I know that civil injunctions have been used on other... exactly on occasions under this statute as well as under other statutes where there is a business enterprise going on that has a dispute with the government about whether what they're doing is outside the statute. I don't think it's--
William H. Rehnquist: Romero-Barcelo was a civil injunction in connection with the EPA, wasn't it?
Barbara D. Underwood: --That's correct but... and under this statute in particular though the Controlled Substances Act it is not customary to seek injunctions against street dealers of narcotics but it is customary to seek injunctions against, for instance, manufacturing plants that are claiming that their use of particular chemicals is... what they're doing is within the Act or without the Act, I mean, when there is essentially a dispute with the business enterprise about the legality and propriety of what they're doing and that is actually not just under the Controlled Substances Act but under many statutes, the kind of occasion when an injunction is used to resolve the legal dispute on the assumption that once that legal dispute is resolved it will not be necessary to seek further enforcement but there will be--
John Paul Stevens: Of course you can make the same argument for bringing criminal prosecution, so presumably you put somebody in jail, they'll stop doing it too.
Barbara D. Underwood: --Yes, but what Congress said actually in authorizing injunctive relief is that when there is this kind of dispute it is desirable to provide a mechanism for resolving it without putting people at risk of going to jail if... and that's one--
Antonin Scalia: You're referring to the legislative history I presume, it doesn't say that in the statute, does it?
Barbara D. Underwood: --No, it does not. I'm referring to legislative history actually--
Antonin Scalia: Some little piece of Congress said that, right?
Barbara D. Underwood: --Well, I'm actually referring to legislative history of the Food, Drug... of the analog provision in the Food, Drug and Cosmetic Act simply to suggest not that we know that that's what Congress voted on but that that is a common widely-understood reason-- --That is a common widely-understood reason--
John Paul Stevens: Yes but those are cases where there's a legitimate difference of opinion on whether there was a violation of law. Your view here that violation of law is so obvious and clear that there isn't even any colorable argument to the contrary.
Barbara D. Underwood: --That's our view but there is a claim to the contrary and I don't think it requires that we credit that claim to decide that an appropriate way to resolve that dispute is in a civil enforcement action, and that... so that's the story about when we sometimes use civil enforcement actions. Actually very often... Respondent has suggested that it's hardly ever used because there aren't reported opinions, the most common occasion where civil enforcement actions are used they're also settled. That is, the injunction... the complaint is filed and there's a civil settlement involving money and agreements to change practices and make an agreement not to deal in a particular drug, chemical for some period of time. There are numerous examples of that.
Anthony M. Kennedy: What is the advantage the government has from an injunction rather than a concerted effort of discrete prosecutions by the United States attorney's office?
Barbara D. Underwood: For example, here, where we are arguing where it is our position that there simply is no medical-necessity defense at all and therefore that one shouldn't be entertaining evidence and adjudicating the appropriateness of a medical-necessity defense in a particular case, the way to get that resolved systemically is in a civil... a civil proceeding that simply presents that legal question.
Anthony M. Kennedy: Then you do want us to rule on the issue that the Ninth Circuit... you're ruling just as a general matter that there's no medical-necessity defense.
Barbara D. Underwood: It is a part of our argument--
Anthony M. Kennedy: I'm concerned about using the courts to answer questions so remote from specific disputes.
Barbara D. Underwood: --It isn't necessary to reach that result but it is a part of our argument that the reason the injunction... the reason the Ninth Circuit was wrong to suggest that the injunction might not issue or might be limited that the court predicated that holding on an error of law, I mean one... there are many reasons why a court might exercise its discretion but it is not a good reason to exercise its discretion to rely on a mistake of law and a mistaken view of the law and that mistake is that the Controlled Substances Act authorizes, contemplates or is consistent with a medical-necessity defense.
Anthony M. Kennedy: Well, then you're very pleased with what the Ninth Circuit did in one sense because now you can get the issue resolved up here.
Barbara D. Underwood: I would say that's the result of what the Ninth Circuit--
Anthony M. Kennedy: But I just don't think that's a good use of the federal district court's authority.
Antonin Scalia: Out of evil cometh good, General Underwood, isn't that wonderful.
Barbara D. Underwood: --Pardon me?
Antonin Scalia: I just said out of evil cometh good is your position on the Ninth Circuit.
Barbara D. Underwood: Our initial position was not that we wanted to bring this to the United States Supreme Court but that the practice... that the Oakland Cannabis Buyers' Cooperative and similar cooperatives should be enjoined from engaging in the open and notorious violation of the Controlled Substances Act--
William H. Rehnquist: General Underwood, if you take it as a criminal prosecution and it's an unsettled question of law whether it is a medical-necessity defense, a typical district trial judge is probably going to err on the side of letting it in since you can't say one way or the other and you may not get it resolved in a criminal prosecution.
Barbara D. Underwood: --That's correct.
Antonin Scalia: General Underwood, what is the penalty for violating an injunction?
Barbara D. Underwood: The statute calls for enforcement by contempt.
Antonin Scalia: Would be criminal contempt?
Barbara D. Underwood: Well there's a... no, well, there's a civil contempt in the statute.
Antonin Scalia: What I'm getting to is would you be entitled to a jury in the trial for contempt?
Barbara D. Underwood: Yes, I said earlier the defendant by statute is entitled to a jury.
Ruth Bader Ginsburg: Still it's civil so it wouldn't be beyond a reasonable doubt, it would be I think it's clear and convincing in this case; is that right?
Barbara D. Underwood: It's not a criminal proceeding it's a trial under Federal Rules of Civil Procedure--
Antonin Scalia: That would make a big difference to a jury who doesn't want to convict this person. I mean, at the end of the road there's a jury, which is going to let you off if it wants to let you off, whatever the standard of proof is so that if the U.S. attorney here were only trying to avoid a jury, he ought to be replaced.
David H. Souter: But the juries... there can be a criminal contempt proceeding if the injunction is violated under the statute, correct? Something was said a minute ago about its being just a civil jury. The U.S. attorney could bring criminal contempt if someone violated it and I thought your answer was under the statute even if it's criminal contempt and the penalty would be... the penalty requested would be within the minor offense range, they'd still get a jury trial and that was the answer to my suggestion.
Barbara D. Underwood: --The statute's Section 882 says in case of an alleged violation of an injunction or a restraining order issued under this Section, trial shall upon demand of the accused be by a jury under the... in accordance with the Federal Rules of Civil Procedure. That's what Congress contemplated and instructed.
Ruth Bader Ginsburg: I understood you before in answer to the question about why the civil injunction to say that you wouldn't do that with a street peddler but you want to put this clinic out of business.
Barbara D. Underwood: Want to stop it from engaging in the unlawful distribution of marijuana, it might have some other business, but I don't believe the Oakland Cannabis Buyers' Cooperative at the moment is engaged in other businesses, and as I've said, that's the dispute that we have with the Oakland Cannabis Buyers' Cooperative about whether what they're doing is lawful or not is one that is ideally suited to resolution in a civil... in a civil litigation. I think I'll reserve the rest of my time for rebuttal.
William H. Rehnquist: Very well General Underwood. Mr. Uelmen, we'll hear from you.
Gerald F. Uelmen: Mr. Chief justice and may it please the Court: When the government initiated these proceedings, it made a tactical choice to forego criminal prosecution in favor of seeking injunctive relief pursuant to Section 882. That choice had serious consequences for the Respondents because it deprived them of the full opportunity to a jury trial.
Antonin Scalia: Did your Respondents ask to be prosecuted criminally, was that their preference?
Gerald F. Uelmen: We had no choice in the matter, Your Honor.
David H. Souter: How did it deprive them, I mean, Ms. Underwood's answer was they get a jury trial in any case.
Gerald F. Uelmen: It's a jury trial in accordance with the Federal Rules of Civil Procedure which means that the court can enter a summary judgment and the court does not apply the standard of proof beyond a reasonable doubt and that actually happened in this case.
David H. Souter: You mean for a criminal contempt?
Gerald F. Uelmen: For a civil contempt.
David H. Souter: What about criminal?
Gerald F. Uelmen: Well, they have not initiated a criminal contempt prosecution. That would be a criminal prosecution and we would have a right, full right to--
Anthony M. Kennedy: What's the sanction for finding of a civil contempt violation? It can't be jail.
Gerald F. Uelmen: --No. I believe they could be fined.
William H. Rehnquist: In a civil contempt they say you have the key to the jail in your own pocket because it's enforced to cause to you do something, you can be jailed I believe on civil contempt.
Gerald F. Uelmen: If you refuse to--
William H. Rehnquist: Right.
Gerald F. Uelmen: --Yes, until you conform with the order. And that happened here. I mean, these Respondents were found in contempt of court without a jury trial.
William H. Rehnquist: Did they ask for a jury trial?
Gerald F. Uelmen: Yes, but the court ruled that under Section 882 the trial as conducted in accordance with the Federal Rules of Civil Procedure. Therefore a summary judgment could be entered and the government succeeded in obtaining a summary judgment.
David H. Souter: And what was the penalty that was being requested, was the penalty a fine or cumulative incarceration?
Gerald F. Uelmen: No fine was imposed.
David H. Souter: What was requested when you went to trial, did the government say, we forego any incarceration as punishment we're going to ask for a fine as punishment, did the government make any specification of that sort?
Gerald F. Uelmen: No, the government asked that the sheriff or the marshal seize the premises in which the business was being operated and of course the Respondents were at risk of incarceration if they remained in contempt.
Anthony M. Kennedy: Well, that's just like a civil nuisance action, it's just a nuisance action in the federal court is all it amounts to.
Gerald F. Uelmen: But the point is the defenses that the Respondents wished to assert were never determined by a jury.
David H. Souter: But you're in effect saying that even if it's purely civil contempt if they are found to violated the injunction and they do not agree to abide by the injunction in the future they can at least be jailed coercively. Is that the point?
Gerald F. Uelmen: Absolutely.
David H. Souter: Okay.
Gerald F. Uelmen: Yes. It would truly be ironic to hold that federal prosecutors have full discretion to decline prosecution but when they elect to come into a federal court sitting as a court of equity, that court has no discretion to decline to issue an injunction.
Anthony M. Kennedy: Just... I take it that if I'm a trial judge and I have someone who's violated my injunction, I can't say, I'm going to put you in jail now until you sign an agreement not to do this anymore. I can't do that. It's a coercive action for something that's within the power... within your power to perform, to turnover some goods, to unlock a locker to... but that's not... so there can't be any... there can't be incarceration--
Gerald F. Uelmen: Clearly, you could incarcerate me until I obey the court order. I mean, that's done all the time with a witness who refuses to testify and is held in contempt.
Anthony M. Kennedy: --But these are all past acts, there's nothing to incarcerate for or am I wrong? Am I missing something, did the judge incarcerated these people? He couldn't.
Gerald F. Uelmen: He did not in this case because the Respondents agreed to refrain from the conduct, the contempt was purged ultimately, but if the... if the Respondents insisted on continuing their operation in violation of the injunction, they could have been jailed.
Anthony M. Kennedy: Well, I disagree with that but we'll leave it.
Antonin Scalia: Right. I thought that this kind of civil contempt where you have the key in your pocket is only for the kind of contempt that's in the presence of the court where you refuse to testify or disrupt proceedings or something like that, I'm not sure that... any way, we can look that up. Let me come to your perception that it would be unthinkable that it could be up to the U.S. attorney whether to bring a criminal action or not, but a federal judge could not decide that he won't issue an injunction using the same sort of discretion, why is that so unthinkable? I mean, in a criminal case the federal judge certainly can't say, you know, I don't think this criminal case should have been brought at all.
Gerald F. Uelmen: In a criminal case, Your Honor--
Antonin Scalia: It's a stupid prosecution and I'm going to ignore it. He can't do that, can he?
Gerald F. Uelmen: --In a criminal case a judge is sitting as a court of law, what we're saying is when a federal court is sitting as a court of equity it has the traditional discretion to weigh the interests, to balance the interests--
Antonin Scalia: To say this civil action should not have been brought, I disagree with the United States attorney that this civil action which is authorized... which he's authorized to bring under the statute should have been brought and therefore I will nullify it, you think a court has that power.
Gerald F. Uelmen: --What we're saying is that all the statute says is if the court has jurisdiction to issue an injunction surely they can come in and ask for an injunction and we're saying the court has discretion to say under these circumstances I'm not going to issue an injunction.
William H. Rehnquist: What's your case authority for that sort of a proposition because the cases you cite in your brief strike me as quite far off the point, Hecht and company and Romero-Barcelo. In those cases the person was either in compliance by the time it got to court or else the court said, look, I won't issue an injunction, Romero-Barcelo, but you have to go get a permit. In no case did the Court ever say well we think you've got a defense to this act so we're not going to issue the injunction.
Gerald F. Uelmen: Well we believe that Hecht v. Bowles and Weinberger v. Romero-Barcelo are quite on point because in both cases it was within contemplation that future violations would occur and the Court still declined to exercise its jurisdiction--
William H. Rehnquist: Because in one way it said, the violations had been cured as promptly as they'd been called the attention that Hecht's had put in a new staff to try to do things. I mean, it's quite different from your case where you say we're going to just go ahead and do this.
Gerald F. Uelmen: --Well in Romero-Barcelo the Court, in effect, said that the Navy can continue to drop its bombs while it applies for a permit, so--
Ruth Bader Ginsburg: But there wasn't any failure to rule on what the law is in both of those cases. The judge adjudicated the case and said you did wrong, but I'm not going to slap you with an injunction because in the Bowles case it was inadvertent and I have ever reason to believe you won't do it again. I didn't get from any of the cases you cite authority that a judge would have to say, I'm just not going to participate in the adjudication of this case.
Gerald F. Uelmen: --Well, first of all, by declining to enjoin, the court is not allowing the violations to continue because the government still has the option of initiating a criminal prosecution at any time and that's--
Sandra Day O'Connor: It seems to me what happened here is that it originally went to a federal district court judge who granted an injunction and then it was appealed--
Gerald F. Uelmen: --That's correct.
Sandra Day O'Connor: --at the Ninth Circuit and the Ninth Circuit appeared at least to create some kind of a blanket exception to the provisions of the Controlled Substances Act and returned it to the district court which it required to withdraw or to enter.
Gerald F. Uelmen: What the Ninth Circuit held is that the district court had discretion to allow this exemption to the injunction for two reasons, first, because the Respondents who came within this common law necessity defense were not violating the Act so they should not be enjoined because--
Sandra Day O'Connor: It was a kind of a blanket medical-necessity defense that it recognized when I would have thought that the initial trial judge did not abuse his discretion at all and that the Ninth Circuit erred at the point that it created this blanket defense.
Gerald F. Uelmen: --Well, it's not a blanket defense, Your Honor, in is the sense that every Respondent who wishes to take advantage of it is going to have to show that they are suffering from a serious medical condition, that they face imminent harm of death or blindness, that cannabis will alleviate their condition and that they have no reasonable alternative, that everybody alternative available has been tried and found ineffective for them so--
Ruth Bader Ginsburg: But the action is brought against the clinic not against the individual sufferers, so you seem to be putting together two things that don't mix, you're saying that an individual might have a plea of medical necessity, but the judge who is faced with a clinic that's selling to all kinds of people, some of them don't fit that description at all.
Gerald F. Uelmen: --Well, no, actually selling to anyone other than the limited number of patients who come within this exception is enjoined by the preliminary injunction, all the court has done is to create a very narrow exception for a very limited number of patients who come within these four criteria.
Anthony M. Kennedy: It doesn't sound to me limited at all, even with drugs that can be dispensed, doctors are required, prescriptions are required, that wasn't any part of this injunction as envisioned by the Ninth Circuit at all.
Gerald F. Uelmen: Well our contention is that--
Anthony M. Kennedy: Nonmedical people deciding the so-called medical necessity. That's a huge rewriting of the statute.
Gerald F. Uelmen: --Well, it's implicit in all of these conditions that there is a medical decision being made. That is, no patient qualifies under the California initiative unless they have a physician's recommendation or approval in meeting the criteria that all alternatives have been tried and failed implicitly assumes some medical supervision in that process. Our contention is that when we come within this medical-necessity defense no prescription is necessary. That we're dealing with highly unusual circumstances that were not contemplated by Congress when it required a prescription for the normal use of any drug, when a physician issues a--
William H. Rehnquist: To say it wasn't contemplated by Congress when Congress made a finding that there's no known medical use for it doesn't make much sense, I think.
Gerald F. Uelmen: --Well, Your Honor, Congress never made such a finding. They did not say there is no known medical use for cannabis.
William H. Rehnquist: What is the definition of schedule one in the Controlled Substances Act.
Gerald F. Uelmen: The criteria for placement on schedule one or movement off of schedule one when it's done administratively by the DEA are set forth in Section 812 and those criteria do include no currently accepted medical use, but Congress itself put cannabis on schedule one, so it wasn't bound by those criteria.
William H. Rehnquist: But presumably if it did it itself, it must have thought that it qualified for schedule one under those criteria, it just didn't want to leave it up to an administrative agency to make the decision.
Gerald F. Uelmen: All it had to conclude in terms of a rational basis test was that it wanted to impose the most restrictive limitation and that is schedule one, no use without a prescription, but we're saying even that finding, that there's no use without a prescription, is not a rejection that under limited circumstances where a patient is facing imminent harm and has no reasonable alternative, the drug cannot be used without a prescription, it's a classic illustration of the choice-of-evils defense.
Antonin Scalia: If that's the case how could it be that the patient wouldn't be able to get a prescription. I mean, you're saying it's absolutely necessary for you to stop the patient from dying or from vomiting or whatever.
Gerald F. Uelmen: That's right.
Antonin Scalia: There's not a doctor in California who will say, you know, here I'll write you a prescription.
Gerald F. Uelmen: Not for cannabis, not for cannabis because it is on schedule one, a physician cannot write a prescription.
Antonin Scalia: Okay, so it's not just a requirement of a prescription that Congress is prescribing.
Gerald F. Uelmen: Well, by putting it on schedule one they're saying you can't... you can't use it by prescription, now when a doctor issues a prescription all he's concluding is that this will help you, he's not required to conclude that you have no other alternative. He's not required to conclude you have a serious condition and you may die or go blind if you don't have this medicine, all he's got to say is, this will help you, here's a prescription, go get it and take it. But the medical-necessity defense requires much more. It requires a conclusion that the patient is facing a serious medical crisis.
William H. Rehnquist: Is there any other case in which this Court has recognized the medical-necessity defense.
Gerald F. Uelmen: Well, calling it medical necessity--
William H. Rehnquist: Well, I asked you a question.
Gerald F. Uelmen: --No. Okay. But medical necessity is just an example of the classic necessity defense defined by the model penal code. In fact, one of the examples--
William H. Rehnquist: That's based on common law, is it not?
Gerald F. Uelmen: --Yes, it is.
William H. Rehnquist: What you have here is a statute that Congress enacted that quite arguably simply ruled out the sort of defense that you're urging.
Gerald F. Uelmen: Well, Congress certainly didn't explicitly rule it out. What the government is arguing is that we can imply this limitation from the structure of the Act and from its purpose, but a careful--
William H. Rehnquist: Or from its placement on schedule one.
Gerald F. Uelmen: --Well, its placement on schedule one involves this issue of currently accepted medical use which is a term of art that does not address the question of whether under particular circumstances of an individual patient facing a medical crisis there might be medical utility for the drug.
Ruth Bader Ginsburg: Do I understand you correctly Mr. Uelmen from what you've argued about medical necessity, the California initiative is essentially irrelevant because you'd be making the same argument in any state; is that correct.
Gerald F. Uelmen: That is absolutely correct. This defense should be available to any patient in any state regardless of whether that state has approved under broader conditions the general use of cannabis as medication.
Antonin Scalia: I guess would it be limited to cannabis or would you have a similar exception to any of the prohibitions.
Gerald F. Uelmen: Well, if the conditions are met that you face this imminent crisis and no other alternative is available, yes, it should be available for other medications as well.
Antonin Scalia: It would be up to the individual who wants it to take his chances and say I think there's medical necessity and then try and prove that later--
Gerald F. Uelmen: That's a risky venture because that individual is going to have to prove in a court of law that in fact he had... he was facing this crisis and he had no alternative.
Antonin Scalia: --Well, you know if he really thinks he's going to die that's an easy gamble right, a jury versus the grim reaper, I'll take the jury any day.
Gerald F. Uelmen: Well, at least in the confines of the modification of this injunction we're talking about more than that, we're talking about a requirement that you prove that you have tried all of the other alternatives that might be available and they didn't help.
William H. Rehnquist: How serious does your medical condition have to be? I mean, I gather cannabis is not a life-saving drug. It alleviates great pain and discomfort.
Gerald F. Uelmen: Well, we believe it is a life-saving drug. It's a life-saving drug for AIDS patients who are not going to benefit from the new medications available to keep them alive if they can't keep their weight up, if they can't maintain their general health.
William H. Rehnquist: So how serious... how serious does a case have to be before this medical-necessity defense kicks in, in your view.
Gerald F. Uelmen: Well, in the injunction we're talking in terms of imminent harm, we believe that--
William H. Rehnquist: What sort of harm?
Gerald F. Uelmen: --Death, starvation, blindness.
Antonin Scalia: Stomachache?
Gerald F. Uelmen: No.
Antonin Scalia: That's a harm, isn't it?
Gerald F. Uelmen: We're talking about patients who are going to lose their sight, who are going to forego chemotherapy or radiation because they can't live with the severe nausea.
Antonin Scalia: You have to add some adjective to just imminent harm, you want imminent life-threatening harm, imminent what? You want to exclude a stomachache and an earache maybe.
Gerald F. Uelmen: No, I think we're talking about much more serious harm, but we're talking about balancing the choice of evils here.
Ruth Bader Ginsburg: Suppose Congress were to say we don't want a medical... we didn't... we thought controlled substance schedule one is prohibited. Now we're going to make clear there's no medical-necessity defense then what happens to your--
Gerald F. Uelmen: Clearly Congress did not say that, but if it did, we would contend that we then have a serious constitutional problem in terms of a violation of the substantive due process right to preserve your life, then we can cite the Glucksberg case--
David H. Souter: --May I just ask you a question? I take it there was no constitutional litigation below that you're raising the constitutional issue here on the constitutional avoidance rationale.
Gerald F. Uelmen: --Yes, the constitutional issue was raised but in a different context.
David H. Souter: Was it, I mean, did you put in evidence on it or did you argue it or was it just one of those things that you never got to?
Gerald F. Uelmen: It was argued in the context of the broader motion to dismiss, but with respect to the medical-necessity issue that's before this Court, our position is that if this statute is construed to preclude a medical-necessity defense under these circumstances where the patient faces loss of life or loss of sight there would be a violation of a substantive due process right--
David H. Souter: Do you also raise the Commerce Clause on constitutionality?
Gerald F. Uelmen: --We did, we did.
William H. Rehnquist: Did you press both of those in the court of appeals when you were appealing from the original injunction.
Gerald F. Uelmen: They were fully briefed in the court of appeals in the context of the dismissal motion--
William H. Rehnquist: And the court of appeals didn't pass on them I gather.
Gerald F. Uelmen: --No, they didn't, although they didn't address it specifically in the context of the medical-necessity defense.
Anthony M. Kennedy: But you're asking us to uphold that this defense exists in broad general terms, it's a sweeping proposition with no specific plaintiff in front of us, with no specific symptoms or testimony from a doctor as to this person, which--
Gerald F. Uelmen: Well, it may be better.
Anthony M. Kennedy: --Which led me to question that the whole use of the injunctive power to begin with but so long as we have the injunction, the statutory authority, it seems to me you have to wait for a specific case to raise this defense.
Gerald F. Uelmen: Well, that's our position Justice Kennedy that the availability of the medical-necessity defense should await a criminal prosecution in which the defense is asserted and evidence is presented and--
Anthony M. Kennedy: Well, but in the meantime it seems to me that nuisance can be enjoined and if the defendant wants to take his chances on a criminal contempt he can do so.
Gerald F. Uelmen: --Well, our contention is that you can decide this Court just based on the traditional discretion that a court of equity has to allow this exception to the injunction.
William H. Rehnquist: I think it was pointed out earlier that the district court here whose discretion it is originally granted the injunction just what the government asked for, and it was the court of appeals who does not have discretion which directed the district court to exercise it in a different way.
Gerald F. Uelmen: Well, the court of appeals was saying that the district court misconceived the law when the court was asked to modify the junction.
William H. Rehnquist: And what should we do if we decide that the court of appeals misconceived the law? I mean, what should we do with this case?
Gerald F. Uelmen: Well, if you feel that the court of appeals misconceived the law then of course you're going to have to reverse the court of appeals, but our position is the court of appeals was essentially correct on both grounds, that the court does have discretion to decline to enjoin and these... this conduct doesn't violate the statute because it comes within this medical necessity defense.
Antonin Scalia: Mr. Uelmen, let me talk about the medical, I had understood medical-necessity defense, if it existed, to be a defense on the part of the person who is in medical necessity and who uses marijuana or any other prohibited drug when he shouldn't. Now you would extend this also to the person who provides it to any persons who was in such needs.
Gerald F. Uelmen: That's correct.
Antonin Scalia: And you would extend it beyond that to someone who opens up a business in order to provide prohibited drugs to people who need them. That's a vast expansion beyond any necessity defense that I've ever heard of before.
Gerald F. Uelmen: Well it's perfectly--
Antonin Scalia: I've heard of necessity defense on the part of defendant who used it or whatnot, but you're saying by reason of a necessity defense you can open up a business to provide for these necessities.
Gerald F. Uelmen: --If it's perfectly consistent with the choice of evils concept of the necessity defense because the person who provides the substance to the patient is also faced with a choice of evils. The case of United States versus Newcomb which we cite in our brief on page 23 makes it very clear that this common law necessity defense extends to the third-party provider as well.
William H. Rehnquist: Well, what choice of evils is the provider faced with?
Gerald F. Uelmen: Of letting someone die or violating the law.
William H. Rehnquist: Well, of not being able to supply the person. I mean it certainly isn't the provider's responsibility to look after the individual.
Gerald F. Uelmen: Well--
William H. Rehnquist: You say letting someone die.
Gerald F. Uelmen: --We're saying the necessity defense permits or justifies this choice even by the provider as well as the patient. Actually the choice of evils defense as described in the model penal code offers this as an example, a druggist may dispense a drug without the requisite prescription to alleviate grave distress in an emergency.
Antonin Scalia: But is this is a regular druggist, this is not a druggist who's in the business of providing illegal drugs to people in necessity. I mean you're making a business out of it. I can understand--
Gerald F. Uelmen: It's a very limited business under this injunction which can serve only patients who meet these criteria, and I might point out it's a business in which the government itself has been engaged. The government provides cannabis at the present time to eight patients who meet essentially the criteria of medical necessity and--
William H. Rehnquist: --I don't think your example from the model penal code would envision a pharmacist filling a prescription or filling an order for some drug that is on schedule one which no prescription is good for.
Gerald F. Uelmen: --Well, we're saying the requirement of a prescription is not a judgment with respect to the availability of a necessity defense. Even a drug as to which no prescription is permitted--
William H. Rehnquist: It's one thing to say that a state law requiring a prescription for a bunch of drugs can be violated in an emergency. It's another thing to say that a schedule one law which says there's no useful medical purpose for this drug shall be violated.
Gerald F. Uelmen: --Well the government's position actually is that there is no necessity defense for any drug under the Controlled Substances Act, and I think it's very important that the court realize that the reason we're here is because the government shut down the only program that could accommodate these patients. For many years they provided Cannabis and still do for eight patients who come within this medical necessity criteria, and they closed that program down in 1992 and they say in their brief we can do it because we're the Federal Government. You can't do it because you're a private citizen. Well, we're saying if you won't do it, we can do it because the only justification you have to do it is the same necessity defense that we're asserting and the way the necessity defense works is if a patient comes in and says I have to have this to live and the court says well, the government has a program. They'll give it to you. Therefore you have a reasonable alternative. You don't have a necessity defense and that's exactly what happened in United States versus Burton the sixth circuit case. A patient with glaucoma comes into court, asserts a necessity defense. The court says you have a reasonable alternative and that patient then goes to the government and they put him on the compassionate IND program and provide him with cannabis. Well, now the government decides we're not going to operate that program anymore and we say if you're not going to do it then we can because the only justification you had to do it was this medical necessity concept. There is no authorization within the Controlled Substances Act for the government to give Cannabis as medicine to patients and when this program was examined by Congress, and I especially invite the Court to carefully look at the hearings held by Congress on the therapeutic uses of marijuana in schedule one drugs. The way this program was explained to Congress in 1980 was we are providing Cannabis for medical use by these patients and the reason we're doing it is because of compassion and because of the therapeutics. That was the explanation given by Congress.
Ruth Bader Ginsburg: I thought it came out of a settlement of a lawsuit.
Gerald F. Uelmen: It came out of a settlement of a lawsuit where the patient successfully asserted a medical necessity defense and the federal authorities then stepped in and said we will provide you with the Cannabis you need to preserve your sight.
Ruth Bader Ginsburg: Successfully in what way did the plaintiff get a judgment in that case?
Speaker: You said there was a settlement.
Gerald F. Uelmen: This was after he was acquitted he brought a civil lawsuit and in settlement of that suit this program was established.
Speaker: Thank you, Mr. Uelmen. General Underwood, you have three minutes remaining.
Barbara D. Underwood: A medical necessity defense is foreclosed here not only by the fact that Congress contemplated and rejected it and not only by the fact that alternatives are available but also because any necessity defense is a response to unusual and unforeseen circumstances. It couldn't possibly, the common law necessity defense couldn't possibly authorize an ongoing enterprise designed to stand ready and provide supplies to people who might show up with their own individual claims of medical necessity. There's no constitutional problem with the statutory procedure for deciding when and if medical uses for a drug exist where with... and the court held in Weinberger against Hynson that it's perfectly appropriate for the FDA to reject anecdotal evidence and insist on controlled studies. There's also no problem with protecting sick people from charlatans or unsafe and ineffective drugs as this Court held in Rutherford in dealing with Laetrile the claim that there was a right to use Laetrile. Respondents in this case have never presented their claims, the claims they're making here, to the FDA. They've never sought review of the classification of marijuana in schedule one, they've never sought access to, at least so far as the record reflects, to the clinical trials that are ongoing right now to deal with synthetic manufacture of components of marijuana, and on the remedy for contempt at the petition appendix at 25 A and again at 37 A it's perfectly clear that the government was not seeking fines or incarceration, that the judge wasn't contemplating fines or incarceration but just evicting and padlocking, closing down this business.
William H. Rehnquist: Thank you General Underwood. The case is submitted.


Earl Warren: Number 84, Frank Masciale, petitioner, versus United States of America. Mr. Clark?
Merrell E. Clark, Jr.: May it please the Court. This case comes here on writ of certiorari to the Court of Appeals for the Second Circuit. The Second Circuit Court had affirmed by a divided court the petitioner's conviction of violation of the narcotics laws. The particular statutes involved are listed on Page 2 of petitioner's brief and are printed in the appendix, but they do not raise the question which is really at issue here. Petitioner was tried by a jury in the District Court for the Eastern District of New York, and was convicted of unlawfully selling and conspiring to sell an ounce and a quarter of heroin hydrochloride. He received a three-year sentence. Upon appeal, a counsel was assigned by the Court of Appeals for the Second Circuit through the New York Legal Aid Society. Now, the fact is that petitioner did participate in that narcotic sale. That participation is freely conceded here and was freely conceded on the trial. The defense was that of entrapment. In other words, the particular sale of narcotics in which petitioner participated was induced by a Federal agent. The question presented here is whether the Trial Court erred in submitting the case to the jury, when the undisputed facts showed, first, the inducement by the document; second, the petitioner had not previously dealt in narcotics, or in fact that he was not a user of narcotics; third, that the urging of the government agents had continued for a period of over two months before the petitioner actually committed the illegal act and fourth, whether the government failed to produce any evidence whatsoever of the inducements first offered to the petitioner and his response thereto. Now, before turning to the facts I would just like mention one decision of this Court as a sort of background to the facts that is the case of Sorrells versus United States, 287 U.S. 435 (1932). I mention it, because it is to my knowledge the only occasion on which this Court has spoken on the defense of entrapment, and most of what I will say refers to that case as the touchstone. In that case this Court first held that entrapment was a valid defense, and the Court said the controlling question, the controlling question is, whether the defendant is a person, otherwise innocent, whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its officials? Now, the facts are these. The narcotic sale we are concerned with took place in Brooklyn on March 2, 1954. The purchaser is a man name Marshall, who was a government agent. The actual seller was never apprehended. He dealt with Marshall on the telephone, he was never identified, and the government never succeeded in catching him. Marshall dealt through a middleman, a man named Seifert. I am sorry to bother you with all this dramatic personae, but it is important, a man named Seifert who introduced agent Marshall to the seller over the telephone and who led agent Marshall to the empty lot, where the ounce and a quarter of heroin had been lodged. Now, petitioner's role in the transaction was to introduce Marshall, the government agent, to Seifert, the middleman, and that is virtually all he had to do for the transaction. The story begins chronologically in December 1953, approximately three months before the sale took place when one Kowel appeared in agent Marshall's office and applied for employment as someone familiar with the narcotics business. Agent Marshall testified that he hired Kowel as a special employee, paid him on an informal basis. Kowel would come in and say he had spent five or ten dollars in a bar the night before and Marshall would reimburse him. But there has been no contention as for the purpose of this case, Kowel was anything but an agent of the government. Kowel was also, and had been for some years, a friend of the defendant. Shortly after Kowel's employment by agent Marshall, he suggested to the defendant that the defendant enter the narcotics business. He pointed out to the defendant that there was a lot of money to be made in the narcotics business. The defendant, as he testified, Kowel himself did not testify, and the only knowledge we have as to this early stage of the story comes from the defendant.
Speaker: What was the defendant's business?
Merrell E. Clark, Jr.: The defendant, Your Honor, so far as the record showed, I believe the record doesn't show what his business was, he actually had worked on the waterfront, had been a truck driver, he had two convictions for gambling and one conviction for conspiracy to attempt to commit a robbery. But there is no evidence in the record whatsoever, and I believe it's not contended that he had ever dealt in narcotics previously. The defendant testified, as I say his testimony was uncontradicted, that he in the first instance rejected these suggestions. He told Kowel he wanted no part in the narcotics business, but Kowel was persistent, repeated his suggestion on two or three separate occasions and finally urged the defendant to meet a big buyer of narcotics from Texas, whom Kowel was going to introduce him to. Well, again, the defendant resisted the suggestion, but in the end he consented to meet the big buyer from Texas. The meeting took place in Brooklyn on January 14, and as the Court has no doubt surmised, the big buyer from Texas was agent Marshall, and Marshall asked the defendant if he could locate a source of narcotics. Marshall testified as to this meeting. His testimony in substance was that the defendant was willing, expressed willingness to try to locate a source of narcotics for him, boasted that in his gambling contacts he had known in the past at least of people who were in the narcotics business. But he told Marshall and Marshall so testified that he did not know right then any source of narcotics, but he undertook to try to find the source. Then his testimony, which of course, I think, we must assume the jury disbelieved that he was just stringing Marshall along, but I think for the purpose of this review we must assume that he was actually at that point willing to find a source of narcotics for the buyer from Texas.
Felix Frankfurter: On cross-examination, was defendant asked as to his prior purchases or addiction to narcotics?
Merrell E. Clark, Jr.: He was asked, Your Honor, I think on direct, I don't recall.
Felix Frankfurter: Well, on direct.
Merrell E. Clark, Jr.: Yes sir and he was and he testified, he had never dealt with narcotics and never used narcotics.
Felix Frankfurter: say it must be believed a minute ago that the jury rejected his testimony. The just had disbelieved that?
Merrell E. Clark, Jr.: Oh no, not as to that, Your Honor. I say no.
Felix Frankfurter: Just the statement that is why not?
Merrell E. Clark, Jr.: Well, Your Honor, they might have disregarded it, but if they disregard that, they are left with the case where there is no evidence whatsoever as to whether the man ever had or had not dealt with narcotics.
Felix Frankfurter: You say – do I interpret with that answer that, there being nothing else, there being no other, according to your statement of the fact, there being nothing in the record, assuming the defendant is out altogether, there being nothing in the record, from which they could have inferred, reasonably inferred, his prior relation to narcotics, they couldn't from his denial, from this own denial have drawn an affirmative conclusion.
Merrell E. Clark, Jr.: Yes Sir.
Felix Frankfurter: That's what your answer is.
Merrell E. Clark, Jr.: That's my position. Now, following this meeting of January 14, there ensued a period of approximately six weeks during which the defendant undertook to locate a source of narcotics for the buyer from Texas. Agent Marshall testified that he spoke to the defendant during that period perhaps ten times, two or three of which were in person, about among other things the defendant's inability to locate a source of narcotics. Finally however, the defendant did locate a source of narcotics and on March 1, he introduced Agent Marshall to the middleman Seifert. Seifert then introduced Marshall to the seller and the transaction took place.
Felix Frankfurter: You said finally Mr. Clark, finally.
Merrell E. Clark, Jr.: Yes Sir.
Felix Frankfurter: What is the evidence of ready knowledge on his part?
Merrell E. Clark, Jr.: The evidence on that score, Your Honor, is this, Seifert pleaded guilty and tuned state's evidence and both he and the defendant testified that they had not known each other on January 14, that is at the time when the defendant was first approached by Marshall to find a source of narcotics. They testified they have known each other about a month prior to March 1 and they testified both that the first time the defendant mentioned Seifert the possibility of selling narcotics was March 1, the very day when the defendant introduced Seifert to Marshall.
Felix Frankfurter: Would you mind spelling out in more particularity, the first approach by the government agent was in January what?
Merrell E. Clark, Jr.: Well, Your Honor, the first approach by Kowel was, we contend, and it was conceded a government agent, was either late December or early January.
Felix Frankfurter: At that time you say, is there any evidence that at that time the petitioner here had any kind of relations, never mind how close, had any kind of relations with the source of the supplier?
Merrell E. Clark, Jr.: There is not evidence whatsoever that he had any relations with the source he ultimately located.
Felix Frankfurter: Is that your precise answer?
Merrell E. Clark, Jr.: Yes Sir, I mean to be and I anticipate another question.
Felix Frankfurter: All right! What's the answer to the next question?
Merrell E. Clark, Jr.: The next question is, that the only evidence that he had any connection at all ever with any source of narcotics was Marshall's testimony that at their first meeting on January 14, petitioner said in the past, in his gambling activities, he had known people in narcotics. He no longer knew those people, but he would try to find a source for Marshall. That's the story.
Felix Frankfurter: So now creep along from January 14 on so as to make out -- the intent of my question is clear that namely is what generalization, what allowable basis, on the record, what allowable basis is there in the record that he had such relations that he wasn't that innocent in this business?
Merrell E. Clark, Jr.: Well, Sir, the allowable evidence --
Felix Frankfurter: Meaning not that he was in the business but that --
Merrell E. Clark, Jr.: Yes, that he had contacts.
Felix Frankfurter: We know that.
Merrell E. Clark, Jr.: Well, the allowable evidence sir, I think is no more than this, that he did meet Seifert around February 1. We don't know exactly how. They were introduced by a mutual friend in a restaurant, but narcotics both of them said were not discussed. There is then a hiatus until March 1, when the defendant ran into Seifert, brought up the question of narcotics. Seifert indicated that he had a source and the defendant right then and there arranged a meeting between Marshall and Seifert.
Felix Frankfurter: Was there anything on cross-examination upon which the jury could have inferred that his disavows, his discrediting disavows for cause, I mean, in this field?
Merrell E. Clark, Jr.: Yes sir. I don't know of anything, Your Honor, and the government hasn't suggested anything. Now, I mentioned that the defendant had other convictions, two for gambling and one for conspiracy to commit robbery. The Court below didn't refer to those as in any way significant, apparently because they are so unrelated to the narcotics field as perhaps not to indicate any predisposition to sell narcotics. Now I will return once again to the Sorrells' case, because it is virtually all we have to work with. It's the landmark case as I indicated that --
Felix Frankfurter: That is quite so from this Court, but you've got a good deal of material in the Second Circuit.
Merrell E. Clark, Jr.: Oh there is a great volume of material below, yes sir. The cases are virtually numerous, it's true. The Sorrells case is a landmark case, L. Chadmick was a valid defense. It set up rather general standards from which the law of courts were to work in determining whether the defense has been proved or not. I mentioned the controlling question is whether the person is otherwise innocent.
Speaker: You accept our standards for the purposes of your argument?
Merrell E. Clark, Jr.: Yes sir, I do.
Felix Frankfurter: I notice you say standard. I notice you say standard, because there is a decisive difference between the (Inaudible) dissenters might get at it.
Merrell E. Clark, Jr.: Oh yes.
Felix Frankfurter: How do you think that makes no difference?
Merrell E. Clark, Jr.: I go along with the majority of opinion sir.
Felix Frankfurter: All right. That isn't an applied exception to the -- exception to the substantive law? Isn't that the base in the word, isn't that the majority opinion?
Merrell E. Clark, Jr.: The philosophy of it, yes sir.
Felix Frankfurter: Yeah, that impliedly it isn't a crime for somebody to do this if he is entrapped into doing it.
Merrell E. Clark, Jr.: The legislature didn't intend the law to apply.
Felix Frankfurter: To apply.
Merrell E. Clark, Jr.: Exactly.
Felix Frankfurter: I thought it's a defense, but he hasn't committed any offense.
Merrell E. Clark, Jr.: Well I am sorry if I used the word defense loosely, Your Honor.
Felix Frankfurter: But I mean, I just want to know.
Merrell E. Clark, Jr.: Yes, that's right. I subscribe to that completely. Now in deciding this controlling question of whether the person is otherwise innocent, this Court said, the predisposition and criminal design of the defendant are relevant and went to say that defendant could not complain of a searching inquiry into his own conduct and predisposition as bearing on the issue. Now sir, within that framework, we say here, that there is no substantial evidence of predisposition or criminal design, and that is, point one of the case. The only evidence here is evidence at the most, the willingness to be seduced by the government agent at the time of the meeting with Marshall. We submit if that is all that the court below rested its decision upon and we submit that it was erroneous in that regard.
Felix Frankfurter: Let me ask you this Mr. Clark? Suppose the government were to concede in a case, not this case at the most, suppose the case cleanly on its facts fit that a government agent got to talking with a fellow in a bar room and said to him, how he did it to make substantial money, it is conceded that the victim as I should call him so, never thought about that before, had no prior knowledge, but suddenly saw opening up of the opportunity. Is that case clearly within Sorrells and not a case of entrapment would you say?
Merrell E. Clark, Jr.: I would say that case is a clear case of entrapment, Your Honor, and there should be no convictions.
Felix Frankfurter: I think that was clear, there couldn't be any controversy about that (Inaudible)
Merrell E. Clark, Jr.: Oh no, I think there will be controversy right here, but --
Felix Frankfurter: But that is in this case. Well, you say it is this case.
Merrell E. Clark, Jr.: Yes sir.
Felix Frankfurter: Well take my case in which there is no question of when he knew Seifert and all of the rest, I want to get rid of everything in these questions I put to you, it's disbelief by the jury of too selling on cross conceded but the fellow never thought of it before and in the course of (Inaudible) opened up, well that's interesting.
Merrell E. Clark, Jr.: And he immediately accepted.
Felix Frankfurter: Well he doesn't immediately accept it, he doesn't, but it is, I want to think about this.
Merrell E. Clark, Jr.: Well sir –
Felix Frankfurter: I mean you can see, the government agent says this is a prospect for his purposes and they have another guy. Two months later he finally says, well, it's something I am going for. But that would be a clear case if you think the government would say that is not Sorrells?
Merrell E. Clark, Jr.: I am not sure what do you mean by not Sorrells, Your Honor, I think it's a clear case of a ballot defense of entrapment.
Felix Frankfurter: Yes, but I mean would it be arguable that that is not within the Sorrells decision?
Merrell E. Clark, Jr.: I think it's arguable, yes indeed.
Felix Frankfurter: Well what would be the argument, I am curious to know that?
Merrell E. Clark, Jr.: Well sir, as I interpret the majority below, I believe what they have said here is this defendant acquiesced so willingly in the suggestion that that is enough to rebut --
Felix Frankfurter: I want you to see what the case I put. This is a brand new world that we have, he thinks about it and two weeks later or a month later he finally engages at the end of -- do you think that's arguably is not covered by Sorrells? I don't know what would be covered by Sorrels then.
Merrell E. Clark, Jr.: Well, Your Honor, I think it's a clear case --
Felix Frankfurter: But you think your case is this -- the case --
Merrell E. Clark, Jr.: This or a sub-clause 2, that they would fall on the same side of the line, yes sir. And my reason for it, it's really kind of expressed by Judge Frank below than by me. He discusses the majority of decisions on Page 119 of the record, and then says in his words which to me are very persuasive. If my colleague's distinction between easy and a difficult persuasion is adopted, how will it work? Just what is an easy seduction, what is its measure? After how long a period of official instigation is a defendant's literal infarction of a statute not a crime? Will it be a crime if he yields to be detected as blandishment at the end of two or three months but not at the end of 8 or 10? In other words, I think any case which rests for its rebuttal of the defense on the defendant's willingness, whether it's instantaneous or in your case, two or three months, I think any case where that is the only evidence to rebut the defense, the defense is not rebutted, because I think it's unworkable. I think there must be evidence of predisposition of some past conduct which will justify what this Court said in the Sorrells case is a questionable practice on the part of law and enforcement officials, only justified as a device or a strategem to catch somebody who they can't otherwise catch, who is engaged in the criminal activity. Now, there is no evidence here, no evidence here of past sales of narcotics, no evidence of narcotic use, no evidence, in fact, on the contrary, clear proof that this defendant was unprepared on January 14 to sell narcotics, because assuming the greatest willingness, it took him six weeks to find even a middleman who could lead the agent to somebody with narcotics.
Harold Burton: What about Kowel's statement to Marshall (Inaudible) in past, wasn't there some evidence (Inaudible)?
Merrell E. Clark, Jr.: I don't believe it is evidence of that, Your Honor. In the first place of course it was pure heresy as far as the truth of it was concerned. I think it's admissible because it was part of the circumstances which got Marshall moving in the direction of the defendant. But so far as being evidence of past activity, I don't believe it was evidence of that.
Speaker: Was (Inaudible) limited?
Merrell E. Clark, Jr.: Was it limited at the trial?
Speaker: Yes.
Merrell E. Clark, Jr.: No sir, it was not. Now, there is a second ground here Your Honors which applies to this case, I think more, specifically than the general matter I have been discussing, and that is, even if ready acquiescence is enough, it must at least be ready acquiescence expressed to the first persuader. In other words, it is not right for the court to say, oh, I have missed a defendant. When Marshall came to you, you said, fine, I will go and locate you a source. That's not enough because absent -- the defendant's testimony, the record is silent on the persuasion practiced on him by the first government agent Kowel. So that even on this issue of willingness or this rebuttal to the defense of entrapment based on defendant's willingness there is, we contend, a fatal hole in the government's case. The defendant testified as to it at length, described his reluctance, as ultimately reluctant to yielding Kowel's persuasion and of course the jury disbelieved it, but once again, if it is disbelieved, there is no evidence whatsoever of what Kowel said to the man or what his reaction was to it. Those are the two grounds, Your Honor, the first that willingness alone is not enough, there must be some evidence of predisposition, past conduct or preparedness, and even if this Court were to decide that ready acquiescence might be evidence, if you will, of predisposition, in this case there was not prima facie proof of willingness because the record of silent, as far as the government is concerned of the artifices practiced.
Felix Frankfurter: What kind of charge did the court give? What kind of charge?
Merrell E. Clark, Jr.: The court for its charge, Your Honor, really quoted from the first Sherman case in the Second Circuit. In other words, it charged that once --
Felix Frankfurter: Are you content with the charge?
Merrell E. Clark, Jr.: Pardon me?
Felix Frankfurter: Are you content with the charge?
Merrell E. Clark, Jr.: Well, yes sir, we are content with the charge, yes, we are.
Felix Frankfurter: The charge got submitted to proper standards of the jury.
Merrell E. Clark, Jr.: Yes, they did.
Felix Frankfurter: And that way you say the case shouldn't have been allowed to go to the jury at all?
Merrell E. Clark, Jr.: Yes sir.
Felix Frankfurter: Where is the charge? In the Sherman case, is that the case that Judge Learned handled?
Merrell E. Clark, Jr.: Yes sir. The charge is at Page --
Felix Frankfurter: Which, there were two Sherman cases, I remember.
Merrell E. Clark, Jr.: Yes sir, the second one is following me right here today; the first one was the one Learned Hand wrote the opinion.
Felix Frankfurter: And it's from the first one that the charge --
Merrell E. Clark, Jr.: First one that the charge came, that's correct.
Felix Frankfurter: Where is that?
Merrell E. Clark, Jr.: It's at Page 97 of the printed transcript. If I may summarize briefly on it, I think it is a proper standard. The court said in substance that once inducement by the government has been shown, the government has the burden of showing that the defendant was ready and willing without persuasion to commit the offense shown and our contention is here that there is no evidence from which the jury could find that the defendant was ready and willing without persuasion to commit the offense.
Earl Warren: Mr. Knapp.
James W. Knapp: May it please Your Honor, it seems that the defense's contention is really this, and I am not sure that he what hasn't almost abandoned or one of them. I may be incorrect in that, but there were two government agents. He says I was trapped by both of them, at least that's what I thought he was arguing until I heard him argue and he seems to admit that as to the approach by the government agent Marshall that the evidence shows willingness and readiness on the part of the petitioner to engage in the narcotics traffic. And I say to Your Honors that if that is the case and we will show (Inaudible) to contend of course that willingness is not enough, that we have to show more than willingness to make out that there was no entrapment in this issue. But he admits that the testimony, as far as Marshall was concerned, is that the defendant was ready and willing to engage in the narcotics traffic on January 14, 1954, when Marshall first approached him about it and I would like to read for Your Honor the testimony of Marshall in that respect. He said, Chappy, Jack and I then sat down in one of the booths --
William J. Brennan, Jr.: Where are you reading from?
James W. Knapp: From record, Page 6, Your Honor.
William J. Brennan, Jr.: Thank you.
James W. Knapp: And almost immediately we started to discuss the narcotics traffic. I told Chappy that I was interested in large quantities of drugs, heroin to be exact, and not as a street pusher. And if I may quote, but that I have transacted my business, posed as a seller out of New York City, and I was only interested in good and large quantities. And he should tell me right away if he is not the person to see, then we will finish this conversation pleasantly right then and there. Now, that's what his initial approach to the defendant was, but the defendant didn't tell him he was not willing. He questioned the man as to his knowledge of the narcotics traffic. The entire topic was to find out my extent of my -- of the narcotics traffic and then Mr. Masciale told me and this is record Page 7, Your Honor that primarily he was a gambler and that he was not a narcotics trafficker as such, that his business was mostly gambling, but that he knew the right people in the narcotics traffic. He further said that up to a week ago or a week prior question that would have been a week prior to January 14th, prior to January 14th he knew or he had a very good source which could supply me with X amount of quality of heroine, but that somehow he had a falling out with these people. He said further that he knew someone whom he considered high up in the narcotics traffic and to whom he could introduce me in that I was able to get and I can quote this, “88% pure heroine” from this source.
Felix Frankfurter: Now suppose there was an introduction. Suppose if this is clear, but after that there was an introduction, but that he had nothing to do with it, an exposit would be admitted by the government that he need to either profited by or dealt with it or anything else, but that having talked with Marshall he said that, well, I am not n this business, but I know some people who are. Would he become a aider and abettor or a coconspirator, do you think?
James W. Knapp: Well, if he produced the man, of course he would, because he would, because he was --
Felix Frankfurter: Oh, he did produce the man. He introduces, I know this fellow. You want to know somebody in the narcotics business, Mr. Jones is in the narcotics business. That would make him a coconspirator?
James W. Knapp: I do not think that what go far enough to making an aider and abettor.
Felix Frankfurter: Will it make him a coconspirator?
James W. Knapp: I think it is a close question, Your Honor. It might very well make it a coconspirator.
Felix Frankfurter: But it is fact that -- assume this. Assume that he had no prior dealing that government had to concede that this fellow had no prior narcotics connections or record, but in the world in which he moved he also knew people where in the narcotic business and he sat down with a government agent who I notice almost immediately started to discuss. I don't what that means. There is the fact that a government agent sits down with somebody who is into the gambling world and the gambler finds his talk interesting and listens to him, does that show readiness to commit crime, willingness, ready and willing? What is ready and willing mean? He does not say, shut up, I am not interesting in narcotics and I do not want listen to it. I know the Supreme Court cases and this may get me into trouble.
James W. Knapp: I do not think it is merely sitting down and discussing it, but when you consider all other facts here did not merely discuss it. He went further. He went further here. He said that Masciale told me he is primarily a gambler that he is not a narcotics trafficker as such, but that he knew the right people, that he had a very good source which could supply me with an excellent quality of heroine, but somehow he had had a falling out with him, and that he knew someone he considered high in the narcotics traffic to whom he could introduce me, and that I was able to get 88% pure heroin. It is much further than just sitting down and having an accidental conversation in which he mentions the man's name where he might able to get it. Now that is a different situation. He is going further and he has taken the ball after it has been given to him and he is running with it. He says he can talk.
Felix Frankfurter: The question that I ask you is because I think to me it makes a lot of difference whether you are to imply into the statute a limitation by Congress that it is not making it a crime for a man who does not shut up of a government agent who talks about his businesses. Says, I do not want to hear about it. I am not interested, but listens to what might be very interesting tale and gets interested although there is no antecedent proof that that man was going to embark upon that kind of business except by the enticement of an agent or whether you take the view of Justice Roberts' concurring opinion that this is shabby business for the government to do. It makes all the difference in the world I think to me whether this is an implied exception in the statute or that this is the kind of a thing that should not be encouraged by having the government go in the business of having people commit crimes who vouch for their activity when they are committing it.
James W. Knapp: Now as I understand at this Sorrells' case resulted in just that conflict among his bench.
Felix Frankfurter: That's right.
James W. Knapp: And the majority of the Court, there was one judge who said it was not entrapment at all and the majority opinion said there is not any offence. This isn't where you plea in bar say I did it with --
Felix Frankfurter: You are quite right about that.
James W. Knapp: He says this is no offense. Now the reason it is not an offense is that the government will not be presumed to intent -- the right of the Congress to intent the conviction of people who are enticed and induced into the commission of the government's agent. It is the government's duty to prevent crime and not to incite it, the real freedom of man.
Felix Frankfurter: Now what I want to know is whether this being a criminal case so that the reliance of the usual arguments for a hearing to a case from my point of view does not apply applied to this. What I want to know is rather the government rests on the assumptions that Sorrells case -- the problem of entrapment is concluded by the theory on which the Sorrells case was decided.
James W. Knapp: Your Honor, please, we, of course, agree with the theory of the Sorrells case, but as I believe Mr. Judge Hand pointed out in the (Inaudible) case afterwards that it did not solve everything. It was a general laying down the principles of law which the District Courts and Circuit Courts had to work in and they had to find the means of carrying out this mandate of this Court. Perhaps, that is where we have no trouble.
Felix Frankfurter: But I am suggesting something else Mr. Knapp. I am suggesting that it may make a difference whether you would take the ground on which the court, you rightly say the court, I prefer to say a court instead of majority, the majority makes the court, what you take the ground of the court in recognizing entrapment and saving a defendant or of the court or that you take the view of the Robert's view, to me it makes a difference.
James W. Knapp: I understand Your Honor and I think I understand the reason, because if the position of the majority and of the court has a final say is that it is no offense, it is a not guilty plea and it is showing in which you are entitled to finding not guilty. He did not commit it. And in that respect, the Sorrells case, those it seems to me the courts did not bother whether he is entrapped or not is not simply what was done, what was asked, but what was his mental process at the time. Was he a person who was otherwise innocent who would not have ever committed this or ever done this thing if it had not been brought out and suggested and induced and incited by the government? Now when we get to that question of what was his mental process at the time the only way we can ever tell is by the evidence and by what the factual situation is. Here in this case how do we tell his mental process, by what he said, his willingness to go along with it.
Earl Warren: We'll recess now Mr. –
James W. Knapp: Excuse me –