Richard L. CHAPMAN, John M. SCHOENECKER and Patrick BRUMM, Petitioners,
United States Supreme Court Official Transcript.
Tuesday, March 26, 1991.
The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:09 a.m.
T. CHRISTOPHER KELLY, ESQ., Madison, Wisconsin; appointed by this Court on behalf of the Petitioners.
PAUL J. LARKIN, JR., ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; on behalf of the Respondent.
ORAL ARGUMENT OF T. CHRISTOPHER KELLY, ESQ. On behalf of the Petitioners ... 3
PAUL J. LARKIN, JR., ESQ. On behalf of the Respondent ... 26
REBUTTAL ARGUMENT OF T. CHRISTOPHER KELLY, ESQ. On behalf of the Petitioners ... 47
CHIEF JUSTICE REHNQUIST: We'll hear argument first this morning in No. 90- 5744, Richard L. Chapman and Others v. the United States.
ORAL ARGUMENT OF T. CHRISTOPHER KELLY
ON BEHALF OF THE PETITIONERS
MR. KELLY: Mr. Chief Justice, and may it please the Court:
The petitioners asked this Court to restore rationality to what Judge Posner termed the bizarre the schedule of punishments in LSD cases that no one is able to justify. The issues before this Court are whether an LSD carrier, in this case blotter paper, is a mixture or substance containing LSD within the meaning of 21 U.S.C., section 841. And if so, whether the sentencing scheme at issue here violates a defendant's due process right to be free from arbitrarily determined sentences.
The Government stipulated that LSD is sold by the dose, not by weight. A dose of LSD is very small. In fact, it's infinitesimal in size. It weighs about 50 millionths of a gram. Because it is so small, individual dosages are generally distributed on a carrier.
The petitioners in this case distributed 1,000 *4 dosages of LSD on blotter paper. The combined weight of the blotter paper and the LSD was about 5.7 grams. The Government stipulated that the actual weight of the LSD apart from the blotter paper was less than 1 gram. In fact, it was about 50 milligrams or less than 1 percent of the combined weight of the LSD and the blotter paper.
QUESTION: What's the relation of a gram to an ounce or a pound, Mr. Kelly?
MR. KELLY: There are 28 or about 28 grams in an ounce.
QUESTION: 28 grams in an ounce.
MR. KELLY: Uh-huh.
QUESTION: Well, when the LSD is put on the paper, does it remain a miscrodot or does it -- it spread to the boundaries of the paper if the paper is big enough, and how big is the paper?
MR. KELLY: There are actually two different ways of placing LSD on blotter paper. One is to mix the LSD with a solution of alcohol and spray it across the paper. The other way is to place a dot of LSD onto the center of a square of blotter paper with a pipette. Blotter paper generally comes in sheets that are about 10 inches square and they're perforated into 100 squares. Each square would represent one dose of LSD.
QUESTION: How -- how big is a square?
*5 MR. KELLY: A square is about 1-inch square.
QUESTION: About an inch square.
MR. KELLY: Yes, Justice Kennedy.
QUESTION: I have one other technical question.
MR. KELLY: Sure.
QUESTION: When LSD is transported to this person who is going to put it on the blotter paper, I take it it's not pure, is it? Do you have a pure vial of LSD that's commonly distributed or is it cut when it's delivered to the dealer?
MR. KELLY: It's not cut in the sense that cocaine, for instance, is cut by mixing it with mannitol.
QUESTION: Perhaps I should have said mixed.
MR. KELLY: Generally if LSD is being distributed in liquid form in a vial, Justice Kennedy, it would be done in a fairly high point in the distribution chain. If it's being distributed to the average consumer, it will be distributed on blotter paper or on another carrier such as a sugar cube or gelatin capsules. Those are the carriers most commonly used.
QUESTION: Well, as it goes to the person who's going to put it on the blotter paper, what kind of container is it in and is it mixed with anything else?
MR. KELLY: It's probably going to be in something like a vial. And if it's mixed with anything *6 else, it would only be, again, if it had been in a solution of alcohol to facilitate spraying it.
QUESTION: Before you end with the so-called technical questions, I didn't understand your response to Justice Kennedy to explain what happens when the substance hits the blotter paper. Does it penetrate into the fibers of the blotter paper?
MR. KELLY: It does penetrate into the fibers. It, in essence, soaks through.
QUESTION: So, in a sense, one could say it is mixed with the fibers of the blotter paper?
MR. KELLY: It depends, Justice O'Connor, in what sense one is using the term mixture as to whether that would constitute a mixture. If one --
QUESTION: Well, in some sense one could say that.
MR. KELLY: In some sense one could say that. It fair to say that the word can be interpreted broadly enough to include that. I should also -- to clarify my response to Justice Kennedy's question -- indicate that when we're talking about the 1-inch square blotter paper, I'm talking about what's probably an average size and that in fact the size and thickness of blotter paper does vary from case to case. In the cases that were cited in our brief, individual squares of blotter paper, for instance, *7 ranged in weight from 5.5 micro -- or milligrams to 15.4 milligrams.
QUESTION: I still didn't understand that one half of your answer -- one that's -- when is a dot is put on a square, does the dot expand to the full area of the square?
MR. KELLY: No, it will probably expand somewhat, but it won't cover the entire square.
QUESTION: But it doesn't cover the entire square so the square would be partly just blotter paper and then it would get increasingly concentrated as it gets to the middle.
MR. KELLY: That's correct, Your Honor.
QUESTION: But if it's sprayed on, it extends to the full extent of the square?
MR. KELLY: That's correct, because generally it's going to sprayed across the entire sheet.
QUESTION: It doesn't really matter whether it's a mixture. I mean, when it penetrates the fiber, the statute and the sentencing guidelines both say it has to be either a mixture or a substance containing a detectable amount of heroin. And it seems to me the blotter is either a mixture or a substance. You've got to say the blotter is a substance, isn't it?
MR. KELLY: Certainly there is a sense in which *8 blotter paper is a substance, as is any material thing.
MR. KELLY: Interestingly the majority in the case below suggested that blotter paper is probably not a substance in that sense found that it was a mixture. The courts of appeals have been divided as to whether it's a mixture or whether it's a substance.
I don't think that it's a substance in the sense that Congress intended that term. Because if the term if read that broadly, then anything that carries the LSD could viewed as a substance. And whether that's a vial or whether that's blotter paper or a syringe or a Boeing 747, a suitcase -- sure, one can think of all kinds of example. I don't think that that's the sense of substance in which Congress intended the word to be used.
I think what Congress was getting at when it used the phrase, mixture or substance, are those things which multiply the value of the drug by weight which multiply the amount of the product which can ultimately distribute -- be distributed to the ultimate consumer. And that's the sense in which it's used when we're talking about a cutting agent. If one mixes cocaine with mannitol for instance, one creates a larger amount of product which can be distributed to the ultimate consumer.
And that's what Congress was getting at, because *9 Congress wanted to impose more severe punishments upon distributors who are causing greater social harm by multiplying the amount of the product that's available for sale.
QUESTION: Well, why isn't that the case -- I don't see why that's not the case with respect to the blotter as well. I mean, every time you take a fixed quantity and mix it with a larger -- with a larger substance you dilute it more and more -- the greater the substance you mix it with, right? And it's the same with the blotter. The -- if you use a little blotter which is of a light weight, you're not able to distribute it to as many people. If you use a larger blotter, it will be more diluted but you can distribute it more widely.
MR. KELLY: That's really not the case with LSD, Justice Scalia. One dose of LSD is one dose of LSD. If it's -- if one dose is placed on one square of blotter paper, that can be distributed for the use of one consumer. If it's -- if 100 doses are placed on 100 doses of blotter paper, those can be distributed to 100 consumers. It's not diluting the LSD to place it on the blotter paper.
Essentially what a -- what a consumer can do after receiving a square of blotter paper with LSD on it is either swallow the blotter paper whole or place the *10 blotter paper in his mouth. The saliva in his mouth will create a wash which will separate out the LSD from the blotter paper. After that's done, he can take the blotter paper out and throw it away. The LSD is just as pure as it was before it was placed on the blotter paper. It hasn't been diluted at all.
QUESTION: Well, why is there a dose of LSD and there is not a dose of cocaine?
MR. KELLY: LS --
QUESTION: I mean you speak as though it doesn't matter how strong it is. Is that so?
MR. KELLY: LSD is distributed in relatively standardized doses that tend to be, as I indicated, about 50 millionths of a gram. A --
QUESTION: It is or it must be?
MR. KELLY: It is. I don't think that there's any reason other than practical reasons that it must be.
QUESTION: Well, but unless it must be, then I am correct that the more blotter paper you use, the more distribution you can make, just as the more -- whatever you mix cocaine with -- you use the more distribution you can make.
MR. KELLY: Well, the -- it's correct, Justice Scalia, that if you have more LSD, you need more blotter paper in order to distribute it to the market. But it's *11 also true that if you have more cocaine, you need more bottles to put the cocaine in to distribute it in the market -- to the marketplace. But nobody's weighing the bottle. The bottle is just a carrier for the cocaine or the envelope or paper bindles or whatever is being used to carry cocaine. But nobody weighs those bindles or those envelopes. It's no more logical to weigh the blotter paper which is just being used as a carrier or a delivery vehicle for the LSD.
QUESTION: Are you saying there's a standard dose of LSD, but there's not a standard dose of cocaine?
MR. KELLY: Cocaine is sold in --
QUESTION: I mean so far as the person who is going to ingest it?
MR. KELLY: Justice Kennedy, cocaine is sold by weight. So the only standard dose is in terms of a user going out and deciding for himself how much cocaine he's going tobuy.
QUESTION: But he can vary that. If he wants to have a lot of cocaine or a small amount of cocaine, he has a choice of a range of -- we might call doses. But that's not true in LSD, or am I incorrect?
MR. KELLY: I guess the difference is that if a user goes out and buys a quarter gram of cocaine, the user has a choice of how much cocaine he's going to consume at *12 one time. A user of LSD generally is not going to take more than one dose of LSD, because taking additional doses isn't going to give any particular additional benefit to that user.
QUESTION: Well, some people would say taking the first dose didn't give him much benefit.
MR. KELLY: I would certainly agree with that, Chief -- Mr. Chief Justice.
QUESTION: Isn't -- I guess I have two questions about your argument. The first is, when the LSD is placed on the blotter paper, it bears the same relationship to the blotter paper that the cocaine does to the cutting agent, doesn't it? Because it's no longer possible at least without sophisticated chemical reductions to distinguish between the drug and the substance that it is associated with, whereas when you're dealing with bottles or suitcases or automobiles, that is not true. So that in that respect, the analogy between the blotter paper and the cutting agent for cocaine is in fact a legitimate analogy, isn't it?
MR. KELLY: It's not in the sense that the purpose of the cutting agent or the diluent is to multiply the amount of the drug that's available for sale.
QUESTION: Well, that -- I guess that gets to *13 the second question I wanted to ask, and it's something that you came close to in responding to one of Justice Scalia's questions. It is the -- it is true, isn't it, that without the combination of the LSD and the blotter paper or the sugar cube -- whatever it may be -- as a practical matter you could not distribute the LSD in commercial or at least in -- in consumable form, because as I understand it, the amount of LSD that is necessary, and indeed I guess even possible for the effect that the users want to get out of it, is so tiny that if you sold them tubes or jars of LSD, they simply could not use the LSD in that form.
So that if you've got tubes and jars of it, you've got something which in that form simply cannot be commercially used. And the only way you can commercially use it is to combine it with blotter paper or sugar cubes. And in that sense, by making that combination, you do make it more broadly distributable than it would be without the combination. And that is exactly the same thing that goes on when the cocaine is cut with whatever it's combined with. Isn't that true?
MR. KELLY: It's true that as a practical matter, it's generally necessary to have some sort of a carrier in order to deliver the LSD conveniently to a consumer.
*14 QUESTION: Well, you -- as a practical matter you couldn't sell it on the street without doing that, could you?
MR. KELLY: Well, there have been cases and there's one cited in my reply brief in which an individual ingested liquid LSD directly into his eyeball, apparently from a pipette or a -- something akin to an eye dropper, but that's not --
QUESTION: But if that were the only way you could sell LSD, the market for LSD would -- would be considerably less, wouldn't it?
MR. KELLY: It would probably diminish greatly, Your Honor, yes.
MR. KELLY: I think my point is that it's certainly a -- probably a unique property of LSD that it is so infinitesimal in size that it requires a carrier. But I don't think that Congress intended to weigh the carrier simply because of the fact that a carrier is needed to carry this drug. It's -- nobody carries cocaine in their pocket. You have to have a carrier to transport cocaine to the user as well, and that's generally a paper bindle, an envelop.
QUESTION: Well, no -- no one is saying here *15 that if you put the blotter paper in a paper bindle or an envelop that you're going to weigh the envelop. I mean that's the analogy to the -- to the cocaine, isn't it?
MR. KELLY: I think the more apt analogy, Justice Souter, is that if you took a piece of blotter paper and folded it into a bindle and used it to carry cocaine, nobody would weigh the blotter paper. But if you used the same piece of blotter paper to carry LSD, courts are weighing it. It's no less --
QUESTION: For the -- for the simple reason that you can easily distinguish in your analogy -- in your example you can easily distinguish between the cocaine and the blotter paper. And you can't easily distinguish between the LSD and the blotter paper. And by the same token, the blotter paper is used as a means of ingestion in the LSD case. It is not used as a means of ingestion in your example.
MR. KELLY: I don't think that Congress had in mind, Justice Souter, that the ingestability was the factor that would count something as a mixture or substance. Again, it appears from the legislative history of section 841 that what Congress wanted to do was visit more severe sentences upon high-volume dealers. The ingestability of the carrier has nothing to do with the volume of the LSD that can be distributed.
*16 QUESTION: But -- but there is a correlation between the means used to prepare something for ingestion and the breadth of its potential distribution. And that is what Congress was getting at. And that seems to me just as true in the LSD in relation to the blotter paper as it is of the cocaine in relation to whatever substance it is mixed with.
MR. KELLY: Again, the fact that LSD requires a carrier, Justice Souter, does not to me to suggest that Congress intended to weigh that carrier when Congress isn't weighing any other kinds of drug carriers.
Once we start weighing the carriers, we see the absurd results that I've discussed in our briefs.
QUESTION: How do you -- are you using the term carrier as a word of art?
MR. KELLY: I'm using carrier as a generic term for something that transports a drug.
QUESTION: Some -- something that -- a suitcase would likewise be a carrier?
MR. KELLY: I would say a suitcase would be a carrier, Mr. Chief Justice.
QUESTION: Well, this is a fairly unique carrier then, because it's -- the drug is actually mixed in with it, isn't it?
MR. KELLY: Yes, the drug is -- the -- I don't *17 know if mixed in with it is a correct term (inaudible).
QUESTION: Well, I thought, in answering one of the previous questions, you said that it did mix?
MR. KELLY: I think that the term can be read that broadly, sure.
QUESTION: So that would distinguish this carrier at any rate from carriers which are, you know, like -- like a suitcase, a box, a bottle, something like that, where there -- where there isn't any combination.
MR. KELLY: I think that's a distinguishing feature, but again I don't see that as a feature that would motivate Congress to want to weigh that carrier. I don't know why Congress would want somebody to receive a sentence that's almost 20 times longer if he uses a sugar cube as a carrier than if he uses blotter paper as a carrier.
QUESTION: Well, (inaudible) dealt particularly with LSD, and it used those words, "mixture or substance," right -- with LSD? So --
MR. KELLY: Congress used --
QUESTION: What do you think it meant?
MR. KELLY: Congress used those words with regard to every drug in section 841.
QUESTION: Yes, but it also did it with LSD.
MR. KELLY: Correct. What I --
*18 QUESTION: Well, what did it mean -- what did it mean then?
MR. KELLY: I think what Congress --
QUESTION: Suppose -- suppose the LSD was -- you put a little drop of LSD in a -- in some orange juice, would that be a mixture?
MR. KELLY: LS -- if -- a single --
QUESTION: Well, would it -- would it be a mixture?
MR. KELLY: Again, I think that the word can be certainly be read broadly enough that it could be.
QUESTION: Well --
MR. KELLY: But I don't think that Congress intended it to be within the meaning of the statute.
QUESTION: Well, what did it mean with respect to LSD?
MR. KELLY: I believe that --
QUESTION: They apparently believed that LSD could be mixed with something.
MR. KELLY: Sure, it could be mixed for instance --
QUESTION: And if it -- if it was mixed with something, you weighed the mixture.
MR. KELLY: I think when it's mixed --
QUESTION: Is that right?
*19 MR. KELLY: When it's mixed with alcohol in order to -- which does to some degree increase the volume when it's being sprayed -- I think it's very appropriate to weigh that. I think when it's placed on another controlled substance or mixed with another controlled substance, it's very appropriate to weigh the entire mixture. For instance when it's mixed with methamphetamines. Those are cases that are clearly covered by the statute.
But something that's simply being used to facilitate transportation of the drug isn't what Congress was getting at, because that's not something that adds to the value of the drug by weight. There's no rational relationship between --
QUESTION: I take it then you suggest that we should just forget about the words mixture or substance, when LSD is involved, because LSD is always -- when it's sold, it's always being carried in something else.
MR. KELLY: No, as -- as I indicated I think there are situations when these words are very meaningful in the context of LSD. When --
QUESTION: Tell me again.
MR. KELLY: When it's being mixed with alcohol in order to spray it. I think that's a mixture or substance. When it's being mixed with another controlled *20 substance which is methamphetamines. That's certainly a mixture or substance.
Possibly Congress was also attempting to get at things like LSD tartrate or isomers or salts -- things like that.
QUESTION: So at least you say that you ought to weigh not just the LSD in a dose, but the alcohol it's been mixed with?
MR. KELLY: Correct. That's --
QUESTION: So you're -- you -- you're saying that for purposes of the statute that -- there cannot be a mixture unless the medium of mixing can be varied in such a way as to dilute the drug itself more or less. And you're saying the blotter paper does not dilute it more or less. There's the same amount on a given piece of blotter paper. And the same amount on a given piece of sugar. Is that the argument?
MR. KELLY: That's essentially true, Justice Souter.
QUESTION: But your argument rests then I think on the assumption that there cannot be a mixture within congressional purpose unless the mixture gives a means of varying concentration, whereas it seems to me that the purpose of Congress was to deal with mixture as a means of varying the ease of distribution. And if the latter is *21 the real characteristic of mixture, then you've got a mixture when you combine the LSD with the blotter paper in the same way that you have a mixture when you combine the cocaine with its cutting agent.
MR. KELLY: I think we have to keep in mind that section 841(b) is not a statute that prohibits the use of blotter paper. There is a separate statute in the Federal code that prohibits the use of any drug paraphernalia that certainly encompasses blotter paper.
841(b) is a punishment statute. 841(a) prohibits the distribution of LSD in any form. So in construing a punishment statute and a punishment statute that's based on weight, I think we have to wonder whether Congress thought that there was some relationship between the weight of blotter paper and the sentence that should be imposed. And I can't imagine that Congress could have contemplated such a relationship, because there isn't one. The dealer who is selling LSD on a heavy blotter paper is certainly no more culpable than the dealer who is selling LSD on a lighter blotter paper.
QUESTION: When he's selling it on blotter paper as opposed to selling in it a jar or a tube, he is selling it in a way which makes it more likely to reach more people. And therefore, it seems to me that implicates the notion of mixture.
*22 It's an entirely different argument to say -- and I realize that you -- that you're going to get onto this -- it's a very different argument to say that the various means of mixtures of LSD raise equal protectionor due process problems. But that's -- that's not it seems to me the question for the statutory interpretation, which is whether there's a mixture there at all.
MR. KELLY: I think, Justice Souter, that in order to interpret the statute, one has to divine what Congress meant by the term mixture or substance. And one has to ask whether Congress would have intended these dramatically varying results based on something that has absolutely nothing to do with culpability.
Certainly that has implications for the due process and equal protection argument as well.
QUESTION: Are you going to address your constitutional argument, because assuming we disagree with you on the statutory question, I suppose that's what you're left with?
MR. KELLY: I would be happy to do that, Justice O'Connor. It's a --
QUESTION: Before you do that, can I ask you one more question?
MR. KELLY: Sure.
QUESTION: There have been an awful lot of *23 factual discussion in the opinion below and in the briefs and in the argument. Nobody seems to disagree about the facts, but are they verifiable for us if we didn't understand how you -- you know, some of the factual -- is anything in the record that tells us all this that you've told us about drug distribution?
MR. KELLY: In the record in the Chapman case, there is very little. In the record in the Marshall case, which was joined with Chapman case at the Seventh Circuit, there's a transcript that has testimony of a couple of chemists. There are also a number of pharmacological texts and --
QUESTION: Are they also experts on the methods of distribution in the illegal drug trade and all? I mean do they describe how it is in fact done when it's done illegally?
MR. KELLY: There are a number cited in the briefs. Licit and Illicit Drugs is one of the texts that's available that does discuss LSD.
QUESTION: There doesn't seem to be any controversy, but I'm just a little concerned about the -- okay.
MR. KELLY: With regard to the constitutional question, if the Government's interpretation of the law is correct, the question becomes whether basing sentences on *24 what amounts to a completely arbitrary factor violates the right to due process of law.
QUESTION: Now, what line of cases are you relying on for that proposition?
MR. KELLY: Essentially we're relying on a number of cases that, in a variety of contexts, have held that due process prohibits the Government from being arbitrary.
QUESTION: What's -- what's your -- what do you think is the best case you have going for you?
MR. KELLY: I guess it's hard to pick out which one is the best. The evidentiary presumption cases such as Tot, the Eastlake case that deals with zoning. There are a number of cases that --
QUESTION: Well, those are really quite far afield from this subject.
MR. KELLY: They're far afield, but the principle, the underlying principle, is the same. And that is that Government cannot be arbitrary.
QUESTION: But has this Court ever thrown out a legislative sentence on the grounds that you're urging here? Is there any case in which we've done that?
MR. KELLY: I'm not aware of one in which sentencing scheme has been thrown out, but I'm not aware of any sentencing scheme that has based sentences on a *25 factor that is completely -- as completely arbitrary as the one that exists in this case.
QUESTION: What about Weems and Solem? We have -- we have several cases that are thought by -- one that clearly requires that sentences be proportionate.
MR. KELLY: I --
QUESTION: Isn't it a disproportion -- disproportionateness of sentencing that you're mainly complaining about?
MR. KELLY: Disproportionateness of sentences is one aspect of it, and that's an aspect that respondent Marshall raised in his brief and that was the focus of his argument. I certainly think that that's a valid criticism of this sentencing law, yes.
QUESTION: Well, I thought it -- I thought it's your only criticism. I mean I assume that --
MR. KELLY: It's -- disproportionality is certainly part and parcel of our argument. It's actually the arbitrariness of the factor that drives the sentence that is what we've been focusing on. The fact that two equally situated offenders who commit exactly the same crime get radically different sentences based on whether they use their sugar cube or whether they use their piece of blotter paper -- piece of heavy blotter paper or piece of light blotter paper -- or gelatin capsule or didn't use *26 anything at all to distribute the same amount of LSD.
QUESTION: They have it within their own power to remedy those disparities, don't they? I mean, they can adjust their means of distribution.
MR. KELLY: They could, although I think it's doubtful that any LSD dealer who was ever aware that something like this could happen, and in any event whether they can choose their own poison or not, I think the Constitution still requires that sentences not be meted out in an entirely arbitrary way. And that's what's happening here.
QUESTION: Why do you seize on the due process clause? Didn't Judge Posner say equal protection was involved?
MR. KELLY: I -- that's correct. And because we're dealing with a Fifth Amendment phrase, I guess I'm talking about due process because we have to talk about equal protection as being incorporated into due process. They're again part and parcel of the same argument.
If I may, Mr. Chief Justice, I'd like to reserve the balance of my time.
QUESTION: Very well, Mr. Kelly.
We'll hear now from you, Mr. Larkin.
ORAL ARGUMENT OF PAUL J. LARKIN, JR.
ON BEHALF OF THE RESPONDENT
*27 MR. LARKIN: Thank you, Mr. Chief Justice, and may it please the Court:
LSD infused blotter paper is a mixture or substance containing detectable amount of LSD. There are certain matters in this regard that unfortunately were not in the regard, because petitioners did not make this an evidentiary matter in the district court. But the court has shown some interest in the technical side of it, and so let me explain some of the facts behind the conclusion I just stated.
As petitioners --
QUESTION: Well, where are you getting these facts?
MR. LARKIN: The facts that are not in the record I will clearly identify to you as being told to me by chemists at the DEA. There are other facts that are -- some of which are in the literature that has been cited in the briefs.
And a goodly number of it is in the opinions of the Sixth Circuit courts that have addressed this issue.
Those courts, for example, have looked at LSD infused blotter paper and have treated them as a mixture or a substance. For example, in this case the Seventh Circuit said that LSD infused blotter paper is a mixture and that is an accurate characterization, because what *28 happens when you make LSD is as follows. You can take the blotter paper and use an atomizer and spray the LSD on it. That, for example, is how respondent Marshall prepared the blotter paper. And that fact is at paragraph 27 of the presentence report in Marshall's case.
You can take the atomizer and spray the paper, and that will distribute the LSD solution, that is, LSD in alcohol or water over the paper.
QUESTION: Does that make it a -- which does it make it -- a mixture or a substance?
MR. LARKIN: You can I think accurately describe it either way. The Seventh Circuit in this case used the term --
QUESTION: Well, supposing he -- he sprayed furniture polish on the top of a table. Do you have a mixture or substance composed of the table and the furniture polish?
MR. LARKIN: I don't think so. The furniture polish and the top of the table don't mix together in any way. It's --
QUESTION: Well, they're stuck together -- aren't they stuck together in precisely the same way the --
MR. LARKIN: Well, I mean if you polished them in and -- so that the -- it becomes absorbed into the *29 wood, then what you have is a mixture of the wood with the polish. The polish is now part of the wood. And something similar happens in this case. For example, you can take tongs and take blotter paper and dip the blotter paper into the solution. And that is one easy way of making sure the solution spreads out entirely over the entire paper.
For example, the Tenth Circuit in one of the cases we cited used the word "absorbs" to describe the inner action between the solution and the paper. The paper will absorb the solution. In that sense you can have a mixture, and that satisfied both the dictionary and even in fact the scientific definitions given to that term. The two units are -- the two items are mixed together. And in fact in the scientific definition, they're mixed together because you can take them apart. There is no chemical bond between the LSD solution and the paper.
So the Seventh Circuit was correct in describing it as a mixture.
QUESTION: And you think that that's all that's needed to comply with it?
MR. LARKIN: Correct. Correct.
QUESTION: So suppose I'm a -- I'm not a distributor of LSD at all. I buy one of these postage *30 stamp size squares of blotter paper, and I don't like sucking on blotter paper so I drop it in a glass of orange juice which I -- must weigh -- you know, must be more than 10 grams. And all of a sudden I get a 10-year minimum sentence?
MR. LARKIN: Correct, if you distribute it. If you only have it for personal use, the mandatory minimums in 841 do not apply, because that is for the manufacture or distribution.
QUESTION: Oh, okay, it does not apply to users?
MR. LARKIN: Users are punished under a different statute if you only have it for personal use. So --
QUESTION: Okay, so if I buy two squares, however --
MR. LARKIN: And you distribute it, then yes.
QUESTION: And I make one orange juice for me and one for my friend and hand the orange juice to -- for my friend, I'm a big time distributor?
MR. LARKIN: You are, under the statute in that case, eligible for a 10-year sentence and I might --
QUESTION: Because you could -- you could invite ten friends to drink the orange juice, couldn't you?
MR. LARKIN: You could or as many as --
QUESTION: You couldn't do that with a little *31 piece of blotter paper?
MR. LARKIN: Correct. And it's not always a postage stamp size. Just another little fact to clarify. In the case of -- of petitioner Chapman, they were 1- inch square, but they can vary anywhere from one-eighth of an inch to a quarter of an inch on a sheet of paper, which can be cut up into normally between 100 and -- or a thousand squares.
QUESTION: You say one-eighth or one-quarter. You mean one-eighth square?
MR. LARKIN: Yes.
QUESTION: Or one-eighth inch square -- a square with -- with a size of one- eighth inch --
MR. LARKIN: Correct. That small -- I think -- as I've been told by the DEA the industry standard so to speak is probably a quarter of an inch, the reason being one-eighth of an inch is more difficult to break off if you're trying to distribute it to someone in a small quantity. So you can have it broken down into a sheet that contains anywhere from a hundred to a thousand different doses.
QUESTION: May I go back just to the orange juice example for a minute? Is it correct that if one of these doses -- whatever the normal dose is dumped in an 8-ounce glass of orange juice and then 10 people drink it, *32 each of the ten would get the same effect as if blotter paper had been swallowed?
MR. LARKIN: I think not, because what you would have probably is a dilution factor.
QUESTION: Is -- can this stuff be diluted so much that it's no longer effective?
MR. LARKIN: Yes, it can. The minimum dosage that is likely to lead to hallucinogenic effect is 25 micrograms.
QUESTION: So if 25 micrograms were dumped in an 8-ounce glass of orange juice, it would not have -- it really would only be useful to sell to one person?
MR. LARKIN: Effectively. If you had the minimum amount I believe the rest would probably be diluted.
MR. LARKIN: But I think petitioner has pointed out that there is some sort of uniform amount that is distributed in this regard, and according to the DEA they've told me that that's not necessarily the case. For example, the sentence --
QUESTION: But it is true -- it is true if whatever that normal minimum amount is is consumed on a blotter paper in the one case, sugar cube in another, and a glass of orange juice on the other, there will be *33 dramatic differences in the sentence to which the distributor would be exposed?
MR. LARKIN: Correct. If you increase the total quantity in that respect, you will increase the weight and it can potentially affect the mandatory minimum (inaudible) --
QUESTION: And even though it doesn't increase the number of likely purchasers of the substance?
MR. LARKIN: Well, if you were only taking one at a time --
QUESTION: That's right.
MR. LARKIN: -- then that might be true.
MR. LARKIN: But respondent -- but petitioners for example are accused also of being irrational, but they themselves subject -- are subject to some of the same irrationalities. For example, petitioner said he would count LS -- he would count the 10 ounces of alcohol if LSD was an alcohol, but he wouldn't count ounces of the orange juice.
In our view, what Congress did in 1986 was pass a statute that was designed to strike at drug trafficking in whatever form it was found, whether a drug was found pure or impure, cut or uncut, ready for distribution at the wholesale level or the retail level, or ready for *34 consumption by the consumer.
Now, there is no doubt that adding different cutting agents -- carrier mediums, if you will -- will increase the exposure a person has under the statute, and that's because Congress clearly picked a weight-based approach. But the percentage --
QUESTION: Well, that would be true for cocaine or something else, would it not? I mean, if it -- if as you increase the cutting agent and decrease the strength of the pure cocaine, you're increasing the range of sentence that might be applied here.
MR. LARKIN: Precisely. And the figures in the case of LSD don't differ by several orders of magnitude from the figures that you can see in the case of heroin. For example, in this case the LSD that was distributed by Chapman had a percentage value of .877. That distributed by Marshall was .59. That's less than 1 percent. But that's not off by degrees of magnitude from the type of heroin you can see on the street. We've cited in our brief different cases and in those cases they have identified the percentage amount of heroin in some of the drugs that were seized. And that some of that percentage amount of heroin was as small as 1.2 percent.
The DEA also engaged in what is called their domestic monitor program to see what the purity of *35 different drugs is, and they purchase them on the street as a result. And in the domestic monitor program that we pointed -- cited to -- the study we cited to in our brief, the purity in some cases was as low as .6 percent. And then it varied dramatically, sometimes from city to city.
In Baltimore, for example, 3.1 percent was the average amount of heroin found in some samples, whereas in New York it can vary up to perhaps as much as 40 percent. Plus some of the studies that were cited in the -- in the books, in the amicus brief for example, said that the average amount of THC which is the active ingredient in marijuana in an average marijuana cigarette can be 1 to 5 percent. The average amount of THC which is the active ingredient in hashish, found in street-level hashish, can be 4 to 10 percent.
So the dilution factor that you see in the case of LSD is not markedly different from the dilution factor you see in the case of other drugs.
Now, it's also doubtless the case that there will be people who deal in quantities of cocaine that are much purer -- people who are further up the chain. And the statute allows a court to take that into account.
After all, the phrase mixture or substance is responsible for two things under 841(b). It can trigger a mandatory minimum, and it can set a range. But it's *36 within that range that a district court can sentence. It's not irrational, therefore, for Congress to legislate in this manner, because what Congress decided to do was change the drug sentencing system around.
In 1970, Congress took its first step at this problem. It passed the Comprehensive Drug Abuse and Prevention and Control Act. That act classified controlled substances according to schedules and set penalties based on the type of schedule involved. Congress changed the system in 1984. As part of the Comprehensive Crime Control Act, Congress introduced the principle that the sentence should vary according to the purity of the drug involved. And then in 1986, Congress once again revised the system and adopted the one we now have today. In the Anti-Drug Abuse Act of 1986, Congress introduced the principle that the mixture or substance containing a detectable amount of a drug should be used as the basis for calculating the sentence. The statute is quite clear in that regard. This was not a careless way of drafting.
What's clear is that you cannot simply look to the amount of pure drug. Certainly when you're dealing with drugs like cocaine or heroin, and also when you're dealing with the -- drugs like LSD. And the reason -- one of the reasons you know that from the text of the statute *37 itself is that the pure quantity of methamphetamine or PCP can sometimes serve as the basis for sentencing.
Congress, therefore, clearly knew how to distinguish between the quantity of pure drug involved and the quantity of the mixture or substance containing detectable amount of the pure drug involved, and it is the latter that we have here.
QUESTION: Mr. Larkin, how do you distinguish -- as I assume you do -- the blotter from the suitcase or the glass or the bottle? Do you -- do you adopt Justice Souter's line whether it is readily extricable from whatever it is mixed or mixed with or contained in?
MR. LARKIN: Yes, that is a reasonable way of looking at it. Keep in mind that this problem of unusual hypotheticals only arises when you're looking to the word "substance." No one would say that a Buick containing a certain quantity of cocaine is mixed with the cocaine.
QUESTION: That's right.
MR. LARKIN: It's only when you're using the word "substance." Now, Congress in the word "substance" didn't use, we think, a technical term. A chemist would probably have used the term "compound" to describe the fact that there was some chemical bonding going on. But Congress used a different term, "substance." And it may be because what they had in mind was something like a *38 tablet, something that petitioners generally tend to overlook.
LSD on blotter paper is not materially different from LSD on a tablet. In each case, you have an active ingredient and an inactive ingredient. And you have more of the --
QUESTION: LSD on -- on a what? On a?
MR. LARKIN: Tablet. A pill.
MR. LARKIN: LSD can be distribute in pill form. And according to the DEA, it is distributed in pill form in roughly 9 percent of the cases. 90 percent of the cases involved blotter paper, 9 percent with tablets, and 1 percent generally everything else. But you can distribute LSD in a pill --
QUESTION: The tablets being originally some other drug than LSA -- LSD I take it?
MR. LARKIN: Well, I wouldn't necessarily call them a drug, Your Honor. What I've been told -- you can make a tablet of --
QUESTION: Sugar or sucrose or --
MR. LARKIN: Matters like that. You can actually make it from rather simple ingredients that don't have a very complex composition. And that it can be done with basically a pill press so that you can manufacture *39 LSD for distribution in tablet form as well as in blotter paper form.
And if it's in a tablet form, we think that is a mixture or a substance. You count the weight of the entire tablet. In this respect we disagree with Judge Cummings who wrote in the dissent. What Judge Cummings cited for his contrary review -- view -- were two cases that were decided under the Harrison Narcotics Act, was the predecessor to the 1970 drug act, and which did not take into account the weight of the mix -- of the entire unit, because it didn't matter.
In fact, if you looked at a particular page reference in the cases he cites, all that was cited and mentioned at those pages was the fact that a capsule had a certain weight with and without the heroin that was inside. The courts in those cases didn't draw any legal significance from that.
QUESTION: Just once again, Mr. Larkin, what does the Government contend is the test for whether it's a substance containing?
MR. LARKIN: I think the way Justice Souter put it, and the way you tried to summarize it, is a -- is a reasonable way of looking at it. Can you easily distinguish between the two? But there's also I think perhaps another way of looking at it that I could offer to *40 you at -- as another way of distinguishing among them.
There are four ways drugs can be taken into the human body. And after all, unless these types of drugs are taken into the human body, they are not going to have the desired effect. You can take it orally. You can inhale it, in which case it goes into the lungs. It can pass through a mucus membrane in the nose or under the tongue. Or it can be injected.
So, if you have a situation where you have something that is going to be actually consumed, taken into the body, it is a reasonable way of looking at that as being a substance. Nobody therefore is going to have any difficulty I think distinguishing an automobile and a suitcase from a tablet or blotter paper. Like I say, a tablet that you take that has LSD enters the body and the body breaks it down, and the drug is then dispersed throughout. That's a relatively easy way I think of looking at it.
And that's the way in fact some -- several of the courts of appeals have looked at it. The Sixth -- excuse me -- the Fourth Sixth, and Eighth Circuits have all said that the blotter paper becomes impregnated with the LSD and is then ingested. And they have all said, therefore, the question is whether this is a --
QUESTION: Would that definition of -- would *41 that definition apply if they put the blotter paper in your mouth, say, and sucked it like a tablet, and then -- once you got the LSD off you spit out the blotter paper?
MR. LARKIN: It would, because that's taking a substance in through a mucus membrane in the mouth. For example, if you put it on gum, you would count the weight of the gum. If --
QUESTION: Yes, but the blotter -- the blotter paper isn't going through the mucus membrane.
MR. LARKIN: If -- the blotter --
QUESTION: I thought you were defining mixture as that which could be ingested in any one of these four ways in combination with the drug. If that's going to be the definition, then it's not going to work for the blotter paper.
MR. LARKIN: Well, I was -- I was focusing not on mixture, Your Honor, but more on substance. The blotter paper --
QUESTION: I misunderstood.
MR. LARKIN: -- can readily be said to be the mixture.
QUESTION: Well, I don't think that's the confusion. I think the confusion is you think it's enough if you -- if the blotter paper is or is often, if not ordinarily, placed within the body. You don't insist that *42 it be swallowed?
MR. LARKIN: No, I think if --
QUESTION: What -- what you mean by ingested is place it within the body, even if you spit it out later.
MR. LARKIN: Yes, in a -- in a broad sense right. Like that.
QUESTION: In a consumable form.
MR. LARKIN: Correct. So that -- and that I think is a way of eliminating most of the absurd hypotheticals that --
QUESTION: I just -- maybe this is another absurd hypothetical, but if the blotter paper were dipped in the glass of orange juice and left there long enough for the stuff to -- I take it it would leave the blotter paper and become associated with the orange juice. Then -- I'm just suggesting that maybe the blotter paper is not necessarily ingested in order to ingest the substance.
MR. LARKIN: Oh, it doesn't necessarily have to be.
MR. LARKIN: If you put the blotter paper in the glass of orange that Justice White hypothesized, you would count we think the weight of the orange juice. And in that circumstance you would be exposed to a very stiff *43 penalty.
QUESTION: No, but at the time it's sold, it's carried by the blotter paper. At the time it's ingested, it's ingested in the orange juice form. And I take it then -- I'm trying to get an example where the blotter paper would not enter the human body the way you say it. And I'm just suggesting it may not necessarily enter the blotter -- the body if it's merely a carrier and it's used in that rather perhaps unusual --
MR. LARKIN: Yes, if you went about it that way, it would not necessarily enter the body.
QUESTION: It doesn't have to be necessarily. I think it's -- it's enough to define what is a "substance containing" if it is something that is commonly -- at least commonly used that way. That will distinguish this from the bottle and the suitcase I assume.
MR. LARKIN: I think so, and I think -- I think that was the way you originally put it, which is why I tried to answer it that way.
QUESTION: Do the briefs indicate the percentage of times that blotter paper is used for distribution? Is it used half the time?
MR. LARKIN: The briefs do not, Your Honor. And the record in the Chapman case does not. And unfortunately, nor does the record in the Marshall case. *44 In the Chapman case what happened -- the one that the Court has now granted review -- is that Chapman and his confederates filed a motion to have 841(b) declared unconstitutional but did not attach any type of factual material in support of it and didn't seek to my knowledge an evidentiary hearing. So it wasn't presented as an evidentiary hearing.
They were essentially taking the position that the statute was irrational, unconstitutional on its face.
QUESTION: Does the literature or anything that we can rely on tell us that blotter paper is used 40 percent of the time by distributors or 20 percent?
MR. LARKIN: I can't -- I do not know a particular source, but what I can point to you is this. If you take a look at the recent circuit court decisions, and there are six of them including -- actually more than six of them. There are several of them that are being held pending this case. Those cases tend to involve blotter paper. And I've been told by the DEA why that is so, and can explain it to you if you'd like.
QUESTION: I think we'll leave it at that.
QUESTION: You say they tend to involve blotter paper. Is what you mean if you were layman, would you say they do involve blotter paper?
MR. LARKIN: Well, Your Honor, the reason I used *45 -- I used 10 is -- I made a mistake. They do -- these cases do involve blotter paper. What I was trying to say basically was an answer that gave me some information that Justice Kennedy didn't want me to give.
QUESTION: Let me give you another absurd hypothetical. What if the dealer labelled his product with a warning label that said that blotter paper is not to be swallowed. Instructions for use are dip it in a glass of water and drink the water after -- after leaving it there for a minute or whatever.
MR. LARKIN: I'm sure it would make it easier to apprehend them. I hope they would do more of that. But they don't see it that often.
QUESTION: Well, they don't sign these. They just instruct the -- the customer to do it that way.
QUESTION: And they'd say -- they'd say, warning: blotter paper is merely a carrier. Ingest in the following way, and they give instructions that will avoid the swallowing of the blotter paper. I take it you'd still say it was a mixture?
MR. LARKIN: I think we'd say it's a nice try but didn't work.
QUESTION: Even if they say regard this blotter *46 paper like a suitcase.
MR. LARKIN: Petitioners have also leveled the constitutional challenges to the statute, and we think the challenges have to fail. What Congress did was try to strike a drug trafficking, as I said, in whatever form it was found. It used weight as the medium for trying to do that. It could have used just the type of drug that was involved, as it did in 1970. It could have used the purity of the drug involved. And it could even have used the dosage numbers, which is what petitioners say Congress should have done in the case of LSD. But we don't think Congress had to.
The dilution rate that shows up in these sorts of cases is similar to the dilution rate that shows up in the case of heroin. Therefore, it's not bizarre to see these types of results. What you have here is a situation also in which there's no First Amendment, no conceivable First Amendment claim, that can be made. The result is Congress is entitled to require people to stay a long way from the line. And Congress is entitled to regulate with, generally speaking, a very blunt instrument.
Congress doesn't have to make the types of refinements that the petitioners would like. And the best proof of that I guess is that this Court's decisions would *47 allow Congress to pass a flat determinant sentencing law. Whether you distribute one dose of LSD or a thousand doses of LSD, you get 20 years in prison. That, too, is a rather blunt instrument for regulating the narcotics traffick, but it is one that Congress has the power to adopt.
As I said at the outset, LSD infused -- infused blotter paper is a mixture or substance containing a detectable amount of LSD. That is a reasonable construction of the statute in light of the market-oriented approach that Congress adopted, and the market-oriented approach is a reasonable way of striking at the drug trade.
Thank you very much.
QUESTION: Thank you, Mr. Larkin.
Mr. Kelly, do you have rebuttal? You have 2 minutes remaining.
REBUTTAL ARGUMENT OF T. CHRISTOPHER KELLY
ON BEHALF OF THE PETITIONERS
MR. KELLY: Thank you, Your Honor.
It's our position that basing sentences in LSD cases in the weight of the carrier would be about as sensible as deciding this case on the weight of the briefs. There's simply no rational relationship between that weight and the culpability of the offender.
*48 The Government still has not explained why Congress would want to impose longer sentences upon a distributor who sells LSD on a heavier carrier than the same offender who sells the same amount of LSD on a lighter carrier. There's no reason Congress would want to do that. And that can't be what Congress meant.
QUESTION: It's convenient. I mean, if you pass a prohibition law, do you have to provide different sentences for -- for bringing in a gallon of wine from bringing in a gallon of -- of whiskey even though the amount of alcohol is vastly different? It's convenient.
MR. KELLY: No, in those cases, you certainly don't. And Judge Posner pointed that out in his dissent. Buy the difference between that situation and this situation is that it's not just a question of convenience. It's a question of rationality. And there's no rational relationship here between what the offender is doing when he's selling it on a -- on a heavier paper and getting a longer sentence for doing that, because it has nothing to do with culpability.
I've been waiting throughout two arguments in the -- in the Seventh Circuit and this argument for the Government to suggest some rational reason for sentencing two identically situated offenders differently when they've committed exactly the same conduct. And the *49 Government has yet to do that.
I think that's why this Court is going to have to find, first, that that can't be what Congress intended by the phrase "mixture or substance." And secondly, that if that's what Congress intended, the law has to be struck down, because it violates the right to equal protection of the law. It's drawing distinctions between identically situated offenders. And that distinction that it's drawing isn't based on a rational reason.
The Government's theory in this case just doesn't make any sense. The law as interpreted by the Government just doesn't make any sense. For that reason, we ask this Court to reverse the convictions of these defendants -- reverse the judgments of the court of appeals --
QUESTION: Thank you, Mr. Kelly.
MR. KELLY: Thank you.
CHIEF JUSTICE REHNQUIST: The case is submitted.
(Whereupon, at 11:02 p.m., the case in the above-entitled matter was submitted.)