Steven v. Scott, Appellant, v. United States of America, Appellee, 395 F.2d 619 (D.C. Cir. 1968)

Appellant, arrested when found helplessly drunk in a public place, was found by the arresting officer to have a quantity of fertile marijuana seeds in his possession. He was charged under 33 D.C.Code § 402, which makes it unlawful "for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense, or compound any narcotic drug * * *." When his case came on for trial in General Sessions, a preliminary motion was made to dismiss the charge on the ground that marijuana is not a narcotic drug. The evidence adduced in support of this motion was a simple and unexpanded negative answer by the Government chemist to a question as to whether marijuana is a narcotic drug.¹  The judge denied the motion after referring to the definitions contained in 33 D.C.Code § 401(m) and (n), which clearly state that fertile marijuana seeds are to be deemed narcotic drugs within the meaning of Section 402. At the ensuing trial to a jury, appellant renewed this point in a motion for a directed verdict after the presentation of the Government's case. When this motion was denied, appellant's evidence was confined to his own testimony which merely recounted the circumstances of his acquisition of the seeds. Upon a verdict of guilty, sentence of probation for one year was imposed.

This court having allowed an appeal from the order of the District of Columbia Court of Appeals, appellant urges that a statute which treats marijuana as a narcotic drug is in contravention of due process of law. Amicus curiae, appointed by this court, has filed a comprehensive brief which advances new and different grounds of reversal. These are essentially that, since First Amendment rights of privacy allegedly afford a right to the personal use of marijuana, a regulatory statute imposing penal sanctions for possession or use is too broad in its reach to be compatible with due process; and further that, because of asserted analogies between marijuana and alcohol, it is a denial of equal protection to outlaw possession of the one and not the other.

Because of the exiguous record made in the trial court,²  these claims of necessity must find their support in assertions in brief rather than record references. This is a very slender basis indeed for declaring an Act of Congress unconstitutional on its face, which is the relief sought. There are perhaps many searching questions to be asked about the structure and foundations of existing narcotics laws, but, if they are to be answered by judicial invalidation rather than by legislative reexamination, it could only be upon the basis of information assembled and tested within the framework of the judicial process. Without it, the deference in terms of assumptions of rationality which traditionally extend to Congressional enactments must prevail.

Affirmed.