United States of America, Plaintiff-appellee, v. Clinton Johnson, Defendant-appellant, 423 F.2d 621 (9th Cir. 1970)

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U.S. Court of Appeals for the Ninth Circuit - 423 F.2d 621 (9th Cir. 1970)

January 9, 1970
Rehearing Denied February 9, 1970
Certiorari Denied April 27, 1970
See 90 S. Ct. 1500

Burton Marks (argued), Beverly Hills, Cal., Jack K. Berman, Eugene W. Doyle, San Francisco, Cal., for appellant.

John Bartko, Asst. U. S. Atty., Cecil F. Poole, U. S. Atty., San Francisco, Cal., for appellee.

Before JOHNSEN* , BROWNING, and CARTER, Circuit Judges.


Defendant was convicted on four counts of an indictment alleging four separate sales of heroin in violation of 26 U.S.C.A. § 4705(a). He contends that the statute is unconstitutional because, as applied to him, it violated the privilege against self-incrimination, and because it is not reasonably related to the taxing authority conferred on Congress by the Constitution. The legislation was sustained in the face of these constitutional attacks by the decision in Minor v. United States, 396 U.S. 87, 90 S. Ct. 284, 24 L. Ed. 2d 283 (1969), for which this appeal was held.

Defendant's only remaining contention is that the conduct of the conduct of the government in making three additional purchases of heroin from him after the initial purchase and in basing additional counts of the indictment on those transactions, subjected him to cruel and unusual punishment in violation of the Eighth Amendment.

In determining sentence the trial court was entitled to consider defendant's personal attitude toward his offense as reflected in his willingness to engage in repeated sales of narcotics, and no other use was made of the series of sales in this case. The minimum sentence required by the statute (five years) was not increased by the multiplication of counts, and the cumulative sentence imposed by the court (fifteen years) was less than the maximum (twenty years) which the court could have imposed on a single count charging a single sale. 26 U.S.C. § 7237(b).



Honorable Harvey M. Johnsen, Senior Circuit Judge of the Eighth Circuit, sitting by designation