UNITED STATES of America, Plaintiff-Appellee, v. Clifton Ray MIDDLETON, Defendant-Appellant
Nos. 81-5321, 81-5640
UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
690 F.2d 820 (11th Cir. 1982)
November 1, 1982
SUBSEQUENT HISTORY: As Amended
PRIOR HISTORY: Appeals from the United States District Court for
the Southern District of Florida
COUNSEL: Richard R. Booth, Miami, Florida, Arthur W. Tifford, Miami,
Florida, for Appellant.
Atlee W. Wampler, III, US Atty., Miami, Flarida, Barbara D. Schwartz, AUSA, Miami,
Florida, for Appellee.
JUDGES: Hill and Clark, Circuit Judges, and Scott, [Footnote *]
District Judge.
OPINION BY: HILL
OPINION
[*821] JAMES C. HILL, Circuit Judge:
This case consists of an appeal from convictions entered against the defendant for
the crimes of importation of marijuana, possession of marijuana, resisting customs
officers, and bail jumping.
The defendant, Clifton Ray Middleton, a member of the Ethiopian Zion Coptic Church,
flew into Miami from Jamaica on April 11, 1972. Upon his arrival, the Customs Inspector
asked Middleton to accompany him to a room for a secondary search of his baggage.
Mr. Middleton then fled the customs enclosure, pursued by a number of customs personnel,
and was caught. The defendant testified that he slipped and fell shortly after reaching
the street and was set upon by several men as he tried to get up. Other evidence
indicates that upon his capture, the defendant fought off the law enforcement officers
by flailing his arms, kicking his feet, and squirming. Middleton continued this
behavior as he was taken into the search room and later across the street to the
public safety department. Marijuana was found in the defendant's possession and
the defendant was taken into custody. On April 14, 1972, the defendant was released
on a $10,000 personal recognizance bond and was advised at that time that he was
required to report to the public defender three times per week. Middleton complied
with this condition until the week ending May 5, 1972.
On April 20, 1972, a federal grand jury returned a seven count indictment against
Middleton. Count I charged the defendant with importation of marijuana, a Schedule
I controlled substance in violation of 21 [*822] U.S.C. §§ 952(a)
and 963. Count II charged the defendant with possession of marijuana with the intent
to distribute in violation of 21 U.S.C. §§ 841 and 846. Counts III through VII charged
the defendant with assaulting, resisting, or impeding certain customs officers in
violation of 18 U.S.C. § 111.
The defendant was arraigned on May 2, 1972 at which time the magistrate announced
his trial date was scheduled for May 22, 1972. His attorney at that time, William
Stiles, testified that he had numerous discussions with the defendant regarding
the trial date. Middleton did not contact the public defender's office from the
day he was arraigned or any time thereafter prior to the trial date. Middleton failed
to appear in court when his case was called for trial on May 22, 1972. On February
1, 1973, a federal grand jury indicted the defendant for bond jumping under 18 U.S.C.
§ 3150.
The defendant filed a motion to dismiss on January 16, 1980, alleging that the statutory
prohibitions pertaining to marijuana are unconstitutional per se. Middleton also
asserted that the statutory prohibitions were unconstitutional as applied to him
as a member of the Ethiopian Zion Coptic Church. The trial judge denied this motion.
Trial commenced on both indictments on February 11, 1981. The jury found the defendant
guilty under count I; not guilty under count II of possession with the intent to
distribute marijuana, but guilty of simple possession; and guilty under counts IV,
V, and VI. The judge directed a verdict of not guilty on count III and the jury
acquitted Middleton on count VII. The trial judge sentenced the defendant to nine
months imprisonment on counts I and II to be served concurrently. He also sentenced
the defendant to nine months custody on counts IV through VI to run concurrently
with each other but consecutively to the sentence imposed for counts I and II. The
trial judge then sentenced the defendant to a one year term of imprisonment for
bond jumping which was to run consecutively to the two other sentences.
In this appeal, the defendant raises four issues. First, the defendant argues that
the classification of marijuana as a Schedule I controlled substance under 21 U.S.C.
§ 812(c) (10) (1976) is unconstitutional as an arbitrary and irrational classification.
Second, Middleton asserts that he is a member of the Ethiopian Zion Coptic Church;
that this is a religion within the meaning of the first amendment; and that the
use of marijuana is an indispensible part of this religion. Consequently, Middleton
argues that the application of the statute in this case would violate the free exercise
clause of the first amendment. Third, the defendant argues that the trial court
erred in refusing to instruct the jury on the defendant's theory of self-defense
since the facts reasonably supported that defense to counts III through VII. Finally,
Middleton contends that the evidence presented at trial was insufficient to support
his conviction for bail jumping. We disagree with all of the above contentions and
affirm the defendant's convictions on all counts.
I Classification of Marijuana as a Schedule I Controlled Substance
Federal statutes are presumptively valid unless it be shown that the statute in
question bears no rational relationship to a legitimate legislative purpose. United
States Railroad Retirement Board v. Fritz, 449 U.S. 166, 101 S. Ct. 453,
66 L. Ed. 2d 368 (1980); Vance v. Bradley, 440 U.S. 93, 99 S. Ct. 939,
59 L. Ed. 2d 171 (1979); Marshall v. United States, 414 U.S. 417, 94 S.
Ct. 700, 38 L. Ed. 2d 618 (1974); United States v. Carolene Products Co.,
304 U.S. 144, 154, 58 S. Ct. 778, 784, 82 L. Ed. 1234 (1938) ("where the legislative
judgment is drawn in question, [judicial inquiries] must be restricted to the issue
whether any state of facts either known or which could reasonably be assumed affords
support for it"). Recognizing this basic doctrine, Middleton nevertheless argues
that this court should declare the congressional classification of marijuana as
a Schedule I controlled substance [*823] unconstitutional as arbitrary
and irrational. [Footnote 1]
Under 21 U.S.C. § 812 (1976), Congress has established five schedules of controlled
substances. Subsection (b) of this statute requires that a drug or other substance
placed in Schedule I must (a) have a high potential for abuse, (b) have no "currently
accepted medical use in treatment in the United States," and (c) must lack
"accepted safety for use . . . . under medical supervision." Id.
At the hearing on the defendant's motion to dismiss, the defendant presented expert
testimony that marijuana does not satisfy any of the Schedule I requirements. For
example, Middleton called Dr. Thomas Ungerleider, an associate professor of psychiatry
at UCLA, who testified that his research had led him to conclude that marijuana
does not satisfy any of the three Schedule I requirements. In an effort to further
support his position, Middleton called other witnesses including Robert Randall,
a glaucoma sufferer, who testified that he was using marijuana to treat his loss
of vision. Based on this evidence, the defendant argues that this court should substitute
its judgment for that of Congress and reclassify marijuana.
This evidence, however, is not sufficient to convince this court that it should
interfere with the broad judicially-recognized prerogative of Congress. In rejecting
a similar argument urging the judicial reclassification of cocaine, the Court of
Appeals for the Ninth Circuit recognized that a court must limit its inquiry to
whether a legislative classification or a refusal to reclassify is irrational or
unreasonable. United States v. Alexander, 673 F.2d 287 (9th Cir. 1982).
In Marshall v. United States, 414 U.S. 417, 94 S. Ct. 700, 38 L. Ed. 2d
618 (1974) the Supreme Court stated that "legislative classifications need
not be perfect or ideal," 414 U.S. at 428, 94 S. Ct. at 707, and that "when
Congress undertakes to act in areas fraught with medical and scientific uncertainties,
legislative options must be especially broad and courts should be cautious not to
rewrite legislation, even assuming, arguendo, that judges with more direct exposure
to the problem might make wiser choices." Id. at 427, 94 S. Ct. at
706.
In enacting the Drug Abuse Prevention and Control Act of 1970, Congress explicitly
recognized:
The extent to which marihuana should be controlled is a subject upon which opinions
diverge widely. There are some who not only advocate its legalization but would
encourage its use; at the other extreme there are some States which have established
the death penalty for distribution of marihuana to minors.
H.R.Rep.No.91-1444, 91st Cong., 2d Sess., 12, reprinted in 1970 U.S.Code Cong. and
Ad.News 4566, 4577. In this case, Middleton has failed to produce any evidence that
the congressional classification is unreasonable or irrational. The determination
of whether new evidence regarding either the medical use of marijuana or the drug's
potential for abuse should result in a reclassification of marijuana is a matter
for legislative or administrative, not judicial, judgment. See United States v.
Kiffer, 477 F.2d 349 (2d Cir.), cert. denied, 414 U.S. 831, 94
S. Ct. 62, 38 L. Ed. 2d 65 (1973); United States v. LaFroscia, 354 F. Supp.
1338 (S.D.N.Y.), aff'd, 485 F.2d 457 (2d Cir. 1973).
The Act contains a mechanism by which evidence such as that on which the defendant
relies may be presented to the attorney general in order to determine whether a
particular drug should be reclassified. See 21 U.S.C. § 811 (1976). Faced with the
issue of whether to compel reclassification, courts have approved of this mechanism
as a means of properly evaluating any new evidence. See United States v. Alexander,
673 F.2d 287 (9th Cir. 1982); United States v. Erwin, 602 F.2d 1183 (5th
Cir. 1979), cert. denied, 444 U.S. 1071, 100 S. Ct. 1014, 62 [*824]
L. Ed. 2d 752 (1980); National Organization for the Reform of Marijuana Laws v.
Drug Enforcement Agency, 182 U.S. App. D.C. 114, 559 F.2d 735, 737-38 (1977)
("Recognizing that the results of continuing research might cast doubts on
the wisdom of initial classification assignments, Congress created a procedure by
which changes in scheduling could be effected."); United States v. Pastor,
557 F.2d 930, 941 (2d Cir. 1977) ("the necessity for speedy, detailed and expert
agency action in the area of drug technology cannot be disputed").
The record does not demonstrate that the present classification of marijuana is
either arbitrary or irrational. Consequently, any reclassification of marijuana
is a matter for legislative or administrative determination.
II Free Exercise Clause
Middleton also asserts that the federal statutes prohibiting the importation and
possession of marijuana, as applied in this case, violate the free exercise clause
of the first amendment of the United States Constitution. In support of this assertion,
Middleton argues that he is a dedicated member of the Ethiopian Zion Coptic Church,
that this church is a religion within the meaning of the first amendment, and that
the use of marijuana is an essential part of his religious practice. In order to
succeed, the defendant must prove both that the Ethiopian Zion Coptic Church is
a religion within the meaning of the first amendment and that the statutes in question
do not serve a compelling governmental interest.
The defendant argues that the strict daily regimen of the Coptic community in Jamaica
and its focus on prayer services in which marijuana is an essential element conclusively
demonstrates that the Ethiopian Zion Coptic Church is a religion within the protections
of the first amendment. Assuming without deciding that the Ethiopian Zion Coptic
Church is a religion within the amendment's protections, [Footnote 2] we hold that
any interest of the defendant protected by the free exercise clause is outweighed
by the compelling governmental interest in regulating and controlling the use of
marijuana and its distribution in the United States. The free exercise clause "embraces
two concepts, -- freedom to believe and freedom to act. The first is absolute but,
in the nature of things, the second cannot be. Conduct remains subject to regulation
for the protection of society." Cantwell v. Connecticut, 310 U.S.
296, 303-04, 60 S. Ct. 900, 903, 84 L. Ed. 1213 (1940). The Supreme Court has emphasized
on numerous occasions that actions and practices are not absolutely protected from
governmental regulation merely because the actor classifies these actions as "religious."
See, e.g., United States v. Lee, 455 U.S. 252, 102 S. Ct. 1051, 71 L. Ed.
2d 127 (1982) (social security taxes may be constitutionally imposed on persons
who object on religious grounds to the payment of taxes to support public insurance
funds); Davis v. Beason, 133 U.S. 333, 10 S. Ct. 299, 33 L. Ed. 637 (1980);
Reynolds v. United States, 98 U.S. 145, 25 L. Ed. 244 (1878).
In Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972),
the Supreme Court reversed the conviction of an Amish farmer who had been convicted
of violating Wisconsin's compulsory school attendance law. The Court recognized
the interest of the state regarding basic education, but held that the state interest
is "not totally free from a balancing process when it impinges on fundamental
rights and interests, such as those specifically protected by the free exercise
clause of the first amendment . . . ." Id. at 214, 92 S. Ct. at 1532.
"The essence of all that has been said and written on the subject is that only
those interests of the highest order and those not otherwise served can overbalance
[*825] legitimate claims to the free exercise of religion."
Id. 215, 92 S. Ct. at 1533. The Court examined the Amish's interest in
maintaining its community structure and the state's interests in preparing citizens
for effective and intelligent participation in the political system and in preparing
self-reliant and self-sufficient participants in society. The Court then concluded
that the state interests would not be sufficiently advanced by requiring Amish school
children, who were enrolled until the completion of a basic education, to attend
school for an additional two years. Id. at 222, 92 S. Ct. at 1536. [Footnote
3]
Id.
Middleton urges that the court analogize between the structure of the Amish and
Coptic communities and that Yoder therefore should control our disposition
of the case at bar. However, even if we assume that such an analogy is proper (a
contention upon which the court expresses no opinion), we find a difference in the
nature of the governmental interests involved in the two cases. Unlike the state
interest advanced in Yoder, the interest advanced by the government in
the case at bar is compelling and would be substantially harmed by a decision allowing
members of the Ethiopian Zion Coptic Church to possess marijuana freely. Congress
has strongly and clearly expressed its intent to protect the public from the obvious
danger of drugs and drug traffic. See 21 U.S.C. § 801(2) (1976). Unquestionably,
Congress can constitutionally control the use of drugs that it determines to be
dangerous, even if those drugs are to be used for religious purposes. United States
v. Hudson, 431 F.2d 468, 469 (5th Cir. 1970), cert. denied, 400
U.S. 1011, 91 S. Ct. 575, 27 L. Ed. 2d 624 (1971) ("the use of drugs as part
of religious practice is not constitutionally privileged"); Native American Church of New York v. United States, 468 F. Supp. 1247 (S.D.N.Y.1979),
aff'd, 633 F.2d 205 (2d Cir. 1980); Randall v. Wyrick, 441 F.
Supp. 312 (W.D.Mo.1977); United States v. Kuch, 288 F. Supp. 439 (D.D.C.
1968).
Extended to its logical conclusion, appellant's argument would protect all drugs,
not just marijuana, if any religious group chose to use them as a religious sacrament.
As this court noted in Leary v. United States, 383 F.2d 851 (5th Cir. 1967),
rev'd. on other grounds, 395 U.S. 6, 89 S. Ct. 1532, 23 L. Ed. 2d 57 (1969),
both the fact of legislation and the severity of the penalties provided in statutes
such as the one in question clearly evidence "the grave concern of Congress"
in controlling the use of drugs. Id. at 859. Moreover, the harm of the
particular drug in question is not relevant in determining the degree of protection
afforded by the free exercise clause to the defendant's actions.
Congress had demonstrated beyond doubt that it believes that marihuana is an evil
in American society and a serious threat to its people. It would be difficult to
imagine the harm which would result if the criminal statutes against marihuana were
nullified as to those who claim the right to possess and traffic in this drug for
religious purposes. For all practical purposes the anti-marihuana laws would be
meaningless, and enforcement impossible. The danger is too great, especially to
the youth of the nation . . . . for this court to yield to the argument that the
use of marihuana for so-called religious purposes should be permitted under the
Free Exercise Clause. We will not, therefore, subscribe to the dangerous doctrine
that the free exercise of religion accords an unlimited freedom to violate the laws
of the land relative to marihuana.
Id. at 860-61. We cannot agree that the free exercise clause embodies the
type of protection urged by the defendant in view of the clearly articulated and
compelling [*826] governmental interests in regulating the possession
and distribution of drugs.
In support of his argument, Middleton analogizes to various state court decisions
which have held that the use of peyote by the Native American Church is constitutionally
protected. This Court, however, remains bound by the Leary precedent and
is not bound by these state court decisions.
In view of all of these factors, this court cannot agree with the defendant's argument
that his possession of marijuana is constitutionally protected under the first amendment.
III Trial Court's Failure to Charge the Jury Regarding Defendant's Defense of Self-Defense
Middleton also argues that the trial court erred in refusing to instruct the jury
on the defendant's theory of self-defense since the facts reasonably support such
a defense against the charges that the defendant willfully resisted the customs
officers. So long as there is some evidence relevant to the issue or the defense
asserted, a trial court must instruct a jury regarding this issue and cannot determine
the existence of such a defense as a matter of law. United States v. Garcia,
452 F.2d 419 (5th Cir. 1971); Tatum v. United States, 88 U.S.App.D.C. 386,
190 F.2d 612 (1951). As this court stated in Strauss v. United States,
376 F.2d 416 (5th Cir. 1967):
'. . . . The defendant in a criminal case is entitled to have presented instructions
relating to a theory of defense for which there is any foundation in the evidence.'
Perez v. United States, (5th Cir. 1961), 297 F.2d 12, 13-14 [emphasis added].
We find no requirement that a requested charge encompass, in the trial judge's eyes,
a believable or sensible defense. The judge is the law-giver. He decides whether
the facts constituting the defense framed by the proposed charge, if believed by
the jury, are legally sufficient to render the accused innocent . . . . The judge
must, therefore, be cautious and unparsimonious in presenting to the jury all of
the possible defenses which the jury may choose to believe. We hold that where the
defendant's proposed charge presents, when properly framed, a valid defense, and
where there has been some evidence relevant to that defense adduced at trial, then
the trial judge may not refuse to charge on that defense.
Id. at 419.
The facts of this case, however, do not support the defendant's contention that
he was entitled to a charge on the theory of self-defense. Generally, self-defense
is a defense which justifies the use of a reasonable amount of force against an
adversary when a person reasonably believes that he is in immediate danger of unlawful
bodily harm from his adversary and that the use of such force is necessary to avoid
this danger. Lafave and Scott, Handbook on Criminal Law, 391 (1972). The record
does not contain any evidence which would give rise to a reasonable expectation
that Middleton was in immediate danger of unlawful bodily harm. The government's
witnesses testified that the defendant ran from the customs enclosure and when apprehended
continually fought off the officers. The defendant himself never testified to having
been struck, kicked or assaulted; he did, however, testify that he had run from
the customs enclosure and that he was aware that he was being detained by law enforcement
officers. We do not see how any force used by the apprehending officers under these
circumstances could have given rise to a reasonable apprehension that such force
was unlawful. Consequently, we hold that the trial court was correct in refusing
to instruct the jury as to the defendant's theory of self-defense.
IV Sufficiency of Evidence Regarding Conviction For Bail Jumping
Middleton also argues that the evidence presented at trial was legally insufficient
to support his conviction for bail jumping in violation of 18 U.S.C. § 3150. He
bases this contention on the statutory requirement that the government prove beyond
a reasonable doubt that he had "willfully" failed to appear. Appellant's
brief at 51. In reviewing the jury verdict of guilty, [*827] we
cannot try the case de novo but are limited to determining whether sufficient evidence
supports the verdict. United States v. Wayman, 510 F.2d 1020 (5th Cir.),
cert. denied sub nom. Moore v. United States, 423 U.S. 846, 96
S. Ct. 84, 46 L. Ed. 2d 67 (1975). In examining the evidence, we must view it in
the light most favorable to the government and make all reasonable inferences and
credibility choices as will support the jury's verdict of guilty. Glasser v. United
States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942); United States v.
Squella-Avendano, 478 F.2d 433 (5th Cir. 1973). In other words, we
must sustain the verdict unless we find that a reasonably minded jury must necessarily
entertain a reasonable doubt as to the defendant's guilt under the evidence. United
States v. Ocanas, 628 F.2d 353 (5th Cir. 1980), cert. denied,
451 U.S. 984, 101 S. Ct. 2316, 68 L. Ed. 2d 840 (1981).
In the case at bar, William Stiles, the defendant's attorney at the arraignment,
testified that the magistrate announced the trial date at the arraignment and that
the defendant was present. Stiles pointed out to the jury where the defendant was
standing in relation to the judge when the date was announced. He also testified
that he had numerous conversations with the defendant based upon the set trial date.
Based on this evidence we cannot agree with the defendant's contention that a reasonably
minded jury must necessarily entertain a reasonable doubt as to the defendant's
guilt.
In view of our disposition of the issues discussed, the defendant's convictions
are
AFFIRMED.