UNITED STATES DISTRICT COURT
    MIDDLE DISTRICT ___________

UNITED STATES OF AMERICA
            
vs.
                                                                                                                  Case No. _________________
DEFENDANT
___________________________/

MOTION TO DISMISS

    COMES NOW the defendant, by and through his undersigned attorney and asks the Court to dismiss the indictment in this cause pursuant to Federal Rule of Criminal Procedure 12 and gives as cause therefore the following:

OUTRAGEOUS GOVERNMENT CONDUCT

    That the indictment resulted from outrageous government conduct constituting a deprivation of due process under the Fifth and Fourteenth Amendments of the United States Constitution.
    That Defendant is charged with one count of possession with intent to distribute cocaine base. According to the government, an adult agent of the government purchased the contraband from the defendant after the government initiated the transaction and under the agent's own volition (without being forced or threatened to do so).
    Though it is not a per se due process violation to convict a defendant for a drug offense where it is the government that initiates the alleged criminal activity and where the government either purchases or supplies the drug, which party initiates the alleged crime is relevant and important in assessing the degree of government involvement in setting up the crime.  Hampton v. United States, 425 U.S. at 491, 96 S.Ct. at 1650 (Powell, J., concurring);  United States v. Gonzalez-Benitez, 537 F.2d 1051, 1055 (9th Cir.), cert. denied, 429 U.S. 923, 97 S.Ct. 323, 50 L.Ed.2d 291 (1976). Cf. United States v. Rueter, 536 F.2d 296 (9th Cir. 1976).
    The extent of a Defendant's prior criminal involvement, though not dispositive, is relevant to the issue of outrageous conduct and whether the defendant or the government should ultimately be held accountable for the instigation of the crime.  United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); United States v. Wylie, 625 F.2d 1371, 1374 (9th Cir. 1980), cert. denied, ---- U.S. -----, 101 S.Ct. 863, 66 L.Ed.2d 804 (1981).
    In United States v. Russell, 411 U.S. 423, 431-32 (1973), Justice Rehnquist, writing for a majority of the Court, noted that someday the Court might be presented with a situation "in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial process to obtain a conviction." This was the first time the Supreme Court officially recognized what is now commonly known as a due process defense based on governmental overreaching and outrageous misconduct.  Although Justice Rehnquist's statement in Russell is essentially dicta, after the Court's decision in Hampton v. United States, 425 U.S. 484 (1976), it was clear that a majority of the members of the Court believed that the Due Process Clause could be invoked as a ground for the dismissal of criminal charges where governmental involvement in the criminal activities being prosecuted reached "a demonstrable level of outrageousness."
    In Sorrells v. United States, 287 U.S. 435 (1932) and Sherman v. United States, 356 U.S. 369 (1958), the Court recognized and sought to delineate the contours of the entrapment defense. In Sorrells, a government prohibition agent appealed to the sentiments of a "comrade in arms in the World War" (Sorrells) and successfully induced him to sell illicit whiskey. Sorrells was promptly arrested and convicted of this offense. Sorrells was the first case in which the Supreme Court upheld the validity of an entrapment defense. Later in Sherman, the Court set forth what is now known as the subjective theory of entrapment. After noting that the Court firmly recognized the defense of entrapment, Chief Justice Warren, writing for the majority, stated: "The function of law enforcement is the prevention of crime and the apprehension of criminals.  Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, a different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute." Id at 372 (quoting in part Sorrells, 287 U.S. at 442).
    The question of whether the involvement of government agents rises to the level of outrageous governmental conduct is a question of law for the court to determine. United States v. Citro, 842 F.2d at 1152-3; United States v. Bogart, 783 F.2d at 1431; United States v. Ramirez, 710 F.2nd 535, 539 (9th Cir. 1983); United States v. McQuin, 612 F.2d at 1197; United States v. Prairie, 572 F.2d at 1319. The issue may properly be raised and decided by a pretrial motion to dismiss the indictment under Fed. R. Crim. P. 12(b). United States v. Batres-Santolino, 521 F. Supp. 744 (N.D. Cal. 1981); see also United States v. Duncan, 896 F.2d 271, 274 (7th Cir. 1990) (outrageous government conduct claim must be made by pretrial motion). In Batres-Santolino, the court conducted an evidentiary hearing after which it dismissed the indictment on due process grounds. Other courts have decided to defer ruling on the pretrial motion until after trial. United States v. Marcello, 537 F. Supp. 402 (C.D. Cal. 1982);  Although there has been some suggestion that the nature of the police conduct could be submitted to the jury, it appears that the trial court should make the determination. United States v. Twigg, 588 F.2d at 379 n.8; United States v. Johnson, 565 F.2d 179,181 (lst Cir. 1977), cert. denied, 434 U.S. 1075 (1978).
    On appeal, the issue of whether the government's conduct violated the defendant's due process rights is reviewed de novo because the issue presents a question of law. United States v. Emmert, 829 F.2d at 810; United States v. Stenberg, 803 F.2d at 428 n.6 (citing Bogart, 783 F.2d at 1431). The court will view the evidence in the light most favorable to the government, and will accept the district court's factual findings unless they are clearly erroneous. Emmert, 829 F.2d at 810-11 (citing Bagnariol, 665 F.2d at 880).
    The targeting of a defendant is sometimes an issue.  In United States v. Luttrell, 923 F.2d 764 (9th Cir. 1991) (en banc), an en banc panel of the Ninth Circuit vacated that part of a three-judge panel ruling which had held that the government must have "reasoned grounds" based on the due process clause to investigate an individual. It joined four sister circuits which also rejected such a test. Id. at 764 (citing the District of Columbia Circuit and the Tenth, Third, and Second Circuits). The Eighth Circuit, in United States v. Jacobson, 893 F.2d 999 (8th Cir. 1990), rev'd on other grounds, 112 S.Ct. 1535 (1992) held to the contrary, requiring that the government show reasonable suspicion, based on articulable facts, to justify targeting an individual for an undercover sting operation.
    The government has always argued that it has the right to lie and commit crimes in order to prosecute honest people engaged in non-violent intercourse with consenting adults.  The courts have generally agreed.   However, cases opposing outrageous government conduct and/or entrapment may have a new vitality in light of  Lawrence v. Texas, 2003 U.S. LEXIS 5013,*;123 S. Ct. 2472; 156 L. Ed. 2d 508;71 U.S.L.W. 4574 (2003).   According to Lawrence, U.S. adults have a privacy right to engage in certain consensual nonviolent intercourse.  In this case the allegation involves economic intercourse in the privacy of a motel room.     
     According to the U.S. Supreme Court, it would be unconstitutional for a defendant to be arrested for committing (or agreeing to commit) sodomy with an undercover law enforcement officer (LEO).  According to Lawrence, it is no business of the U.S. government or any government whether U.S. citizens do engage in sodomy.  How can Lawrence deny that U.S. citizens also have the right to recreate with drugs?  Perhaps at the same time as having sex.  If the officer had performed a sodomy "sting" operation (similar to a prostitution sting but for the sake of argument let's say it was non-commercial) and the officer had gone to a hotel room and tempted a defendant into engaging in sodomy with the officer, and at the same time had used drugs, and then before leaving the officer had purchased some drugs to take, then that scenario showcase the legal arguments presented here.  Before Lawrence, LEO's probably could have attempted to make sting arrests for sodomy (and why they didn't try it is an odd question itself. Would they have tried a reverse-sting or a regular sting?).  After Lawrence, sodomy with a LEO in the privacy of a hotel room is no longer prosecutable (whether the act is merely agreed to or completed).  The same argument should apply regarding drug charges under the same circumstances.

THE 100 TO 1 COCAINE BASE SENTENCING RATIO

    The Court should dismiss the charge because the "cocaine base" laws are ambiguous and should be invalidated under the rule of lenity or equal protection principles.
    In United States v. Sloan, et al., 97 F.3d 1378, (11th Cir. , 1996),  the appellate Court declined to adopt the reasoning of United States District Judge J. Owen Forrester's decision in United States v. Davis, 864 F. Supp. 1303 (N.D. Ga. 1994), and provided the basis for affirming a challenge similar to the one argued here.
    The Sloan decision mis-characterizes the issue at hand. This is not a challenge to the difference between "powder" and "crack." Those terms are not found in the statute. In order to understand this issue, one must first recognize that cocaine is not the same thing as cocaine hydrochloride, the most common cocaine powder. Even the Sloan opinion recognizes: cocaine hydrochloride powder is a cocaine salt--a mixture of "cocaine" (C17-H21-N04) and hydrochloric acid (HCl). Cocaine (C17-H21-N04) is a base, and is the same thing as "cocaine base." (also C17-H21-N04). It is identical in every way. Even the Government now acknowledges that these two substances are chemically indistinguishable.
    The essence of the Davis opinion thus was simple. Congress created two different penalties for the same chemical substance - "cocaine base" and "cocaine." Because two different penalties apply equally to the substances in this case --which could be categorized equally as either "cocaine" or "cocaine base"- a defendant would deserve the lesser of two applicable penalties.  The same would be true if one penalty existed for possessing "automatic weapons" and another for possessing "machine guns," or if driving under the influence of "hard liquor" gave one penalty, and driving under the influence of "distilled spirits" gave another.  The issue is not what Congress may have meant to pass. The issue is what it did pass. Looking at these words the President signed into law, even the Sloan opinion concedes "some facial ambiguity," and acknowledges that "[n]o doubt Congress could have enacted a statute which expressed its intentions more precisely." Nevertheless, Sloan based its opinion on the "motivating policies underlying" the statute,  and referred repeatedly to what "Congress intended."
    As the Supreme Court has stated repeatedly, "[b]ecause construction of a criminal statute must be governed by the need for fair warning, it is rare that legislative history or statutory policies will ever support a construction of a statute broader than that clearly warranted by the text." Ratzlaf v. United States, 114 S. Ct. 655, 662 (1994) (majority overrules 10 of 11 Circuits). Notwithstanding this admonition, Sloan  here relied exclusively on these same statutory policies and legislative histories to support its analysis.
    As Judge Forrester noted in his Davis opinion, the "cocaine base" laws thus would violate equal protection guarantees even if they somehow survived the rule of lenity.  864 F. Supp. at 1309, n. 25.  As an analogy, if sugar were illegal, it would be as if sugar cubes were punished 100 times more harshly than granulated sugar.  Judge Forrester's conclusion is consistent with the Sentencing Commission's recent amendments, which suggest ending the "cocaine base" distinction, in part because "[c]rack and powder cocaine are pharmacologically the same drug."  U.S.S.G. 1995 Proposed Amendment 5. No rational basis exists for penalizing chemically equivalent, equally smokeable substances differently.

    The Court should dismiss the charges on the grounds that the federal government's "war on drugs" is constitutional, especially where a mandatory minimum sentence is imposed based on an indictment that did not allege the defendant's prior record, and where the accused is now violently incarcerated for non-violent economic activity with a consenting adult in the privacy of a motel room within a single state.

    APPRENDI ISSUE: The indictment violates Apprendi by enhancing defendant's sentence based on prior convictions not alleged in the indictment. The Supreme Court concluded in Almendarez-Torres v. United States, 118 S.Ct. 1219, 1232-33 (1998), that an indictment for illegal reentry did not have to include a defendant's conviction for a prior aggravated felony for a district court to impose an enhanced sentence under 8 U.S.C. 1326(b)(2). The Supreme Court subsequently determined in Apprendi v. New Jersey, 120 S.Ct. 2348, 2362-63 (2000), that "[o]ther than a prior conviction, any fact that increases the penalty beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt" Apprendi, 120 S.Ct. at 2362-63.
    The Supreme Court indicated in Apprendi that its decision in Almendarez-Torres might be called into question, but it specifically decided not to address the issue. Id. at 2362. The Eleventh Circuit Court of appeals has concluded that "Almendarez-Torres remains the law until the Supreme Court determines that Almendarez-Torres is not controlling precedent." United States v. Guadamuz-Solis, 232 F.3d 1363, 1363 (11th Cir. 2000); see also United States v. Thomas, 242 F.3d 1028, 1034-35 (11th Cir.) (applying Guadamuz-Solis to affirm denial of Apprendi challenge to sentence enhanced pursuant to 18 U.S.C. 924(e)(1)), cert. denied, 121 S.Ct. 2616 (2001).  Because Almendarez-Torres is still controlling law, the Eleventh Circuit Court of Appeals has upheld  concurrent life sentences based on prior cocaine convictions that were neither pled in the indictment nor found by the jury.

    JURY NULLIFICATION OF MANDATORY MINIMUMS: Related to the Apprendi issue is that, even though the government has not pled, and no jury will presumably find, any prior record, the Defendant hereby moves for a bifurcated trial regarding his prior record and to argue jury pardon/nullification.
    In the types of cases alleged here (whenever there is audio and/or video tape evidence and the testimony of an undercover law enforcement officer in a hand-to-hand transaction) the government often characterizes the evidence as overwhelming, even suggesting that there is no serious defense against the facts, only absurd defenses.  In such cases, and if this is one of those cases, then there is only one trial defense left: That the law is unjust and should be rejected by the jury (the jury pardon or nullification defense).  The Defendant should have the right, should he so decide, to present a pardon/nullification defense, either alone or in conjunction with any other defense.
    Recent case law indicates that it is ineffective assistance of counsel for an attorney to admit a defendant's guilt to a jury. In cases where the government's evidence cannot be rationally disputed, and where the law prevents the nullification defense, then the law forces defendants to mount irrational/absurd defenses, or no defense at all.  Such predicaments are a violation of a defendant's right to due process and of a defendant's right to a meaningful jury trial.  
    At the very least, the jury should be informed of the penalty in this cause, and it should be possible to argue to the jury that the penalty is also an independent basis for acquittal.
    In cases involving crimes of violence and theft, the pardon/nullification defense is rejected by jurors because crimes of violence and theft violate the NAP (the Non-Aggression Principle), which is a basic moral concept to many jurors and to some judges (see e.g. Lawrence v. Texas, 2003 U.S. LEXIS 5013,*;123 S. Ct. 2472; 156 L. Ed. 2d 508;71 U.S.L.W. 4574 (2003)).  But this is a case that does not allege violence or theft, it is a drug case, and drug cases are in that league of cases where the nullification defense has potential because the NAP is attractive to some jurors and judges.
    In the former Soviet Union under Stalin it was said that "the accused was given a trial but no defense."  If the government has the power to prevent a defendant from arguing that the law is wrong, then the government has the power to prevent the defendant from having any defense whatsoever, because the government can legislatively deprive the defendant of every other defense.  The so-called "strict liability," laws are one example.  Many drug cases are also examples.  
    Witchcraft was illegal in the U.S. and still is illegal in other parts of the world.  Our criminal justice system would not allow anyone to argue to a jury that a witchcraft law should be rejected because witches do not cast spells that make children fall into fits.  Jurors would be instructed to determine the facts based on the testimony and to follow the law, just as they did in the Salem Witch Trials.   And a defendant would be sentenced to life in prison or even to death.
    Some people incorrectly argue that for any defendant to argue that drugs should be legal under any circumstances, is a foolhardy defense. But those arguments are made by people who make sure the public never hears the comparison of modern prohibition to old prohibition, and the similar corruption, violence, and irresponsible behavior that is caused by the government, and perpetrated and perpetuated by the government.
    Some defendants are deprived not only of their only defense, they are deprived of the best defense.  It might be the best defense because it is the defense that the government has already abjectly lost in old prohibition, and that the government has already arguably abjectly lost in modern prohibition, though the government persists in digging its hole ever deeper.  Today, defendants are charged under modern prohibition, and the government prevents them from presenting the exculpatory proof that has already been established under old prohibition.
    Most case law rejects the right to present a jury pardon/nullification defense. However, U.S. v. Datcher, 830 F. Supp. 411 (M.D. Tenn. 1993), cites the political history of jury nullification, and Datcher held that the defendant was entitled to argue the issue of punishment to the jury, which the defendant argued was draconian, hoping the jury would deem the penalty too great and thus acquit pursuant to power of jury nullification.  The court based its ruling on the importance of allowing the jury "to decide whether a sentencing law should be nullified." Id. at 412.

    CRUEL AND UNUSUAL PUNISHMENT: The sentence that is possible in this case is unconstitutional because it is cruel and unusual punishment in permitting a mandatory minimum sentence against a man accused of economic activity with a consenting adult in the privacy of a motel room within a single state.
    The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII.  Some cases hold that in non-capital cases, the Eighth Amendment encompasses, at most, "only a narrow proportionality principle." United States v. Brant, 62 F.3d 367, 368 (11th Cir. 1995) (relying on Harmelin v. Michigan, 111 S.Ct. 2680 (1991)). A reviewing court must make a threshold determination that the sentence imposed is grossly disproportionate to the offense committed. Id. If it is grossly disproportionate, the court must then consider sentences imposed on other persons convicted in the same jurisdiction and sentences imposed for the commission of the same crime in other jurisdictions. Id.
    In Harmelin, the Supreme Court concluded that "[s]evere, mandatory penalties may be cruel, but they are not unusual in the constitutional sense, having been employed in various forms throughout our Nation's history." See Harmelin, 111 S.Ct. at 2701-02 (life sentence based on state law not "cruel and unusual" just because it was mandatory). Following this reasoning, the Eleventh Circuit has rejected the argument that the provisions for mandatory life sentences under cases involving 21 U.S.C. 841 violate the Eighth Amendment. See United States v. Willis, 956 F.2d 248,251 (11th Cir. 1992). The Supreme Court recently has similarly denied Eighth Amendment challenges to sentences of 25 years' to life imprisonment imposed on defendants with prior convictions who committed theft offenses, concluding that the impact of recidivism was an adequate reason to impose the sentences. See Ewing v. California, 123 S.Ct. 1179, 1189-90 (2003); Lockyer v. Andrade, 123 S.Ct. 1166, 1175 (2003).
    In Lockyer, an appeal from the Ninth Circuit's grant of habeas relief under 28 U.S.C. 2254, the Supreme Court concluded that, although the Supreme Court's precedents in non-capital challenges to sentences under the Eighth Amendment have not been "a model of clarity," that a gross disproportionality principle is applicable to sentences for terms of years is a "clearly established" principle and that the gross proportionality principle "reserves a constitutional violation for only the extraordinary case." See Lockyer, 123 S.Ct. at 1173-75.
    The defendant argues that, unlike cases involving violence or theft as in Ewing and Locker, the allegations against the defendant involve no theft or violence, and involve consensual conduct between adults in the privacy of a motel room, and therefore defendant's case fulfills the gross proportionality principle that "reserves a constitutional violation for only the extraordinary case" under Lockyer.
    The defendant's argument is further bolstered by Lawrence v. Texas, supra, and it's recognition of special constitutional rights involving non-violent private acts between consenting adults, and evolving standards of decency.  It is indecent for the government to initiate violence against a non-violent man via a minimum mandatory sentence of life imprisonment.
    The defendant's case is unusual because mandatory minimums are unusual, especially  for non-violent people, and they are also unusual because they unconstitutionally deprive and limit the power of the judiciary in sentencing, the separation of powers, especially where it imposes a mandatory sentence (as here).  The mandatory minimum is much more unconstitutionally "unusual" for the federal courts than for state courts, and especially where the federal government continues to make new (and unconstitutional) forays into every "crime" in the country in addition to education, healthcare, social security, medicinal drug uses, national pledges written and edited by Congress, etc., in short: authoritarian socialism that was never allowed by the Constitution.  
    The mandatory minimum of life imprisonment deprives sentencing judges of their discretionary role afforded to the judiciary under the Constitution. Prosecutors are allowed to determine sentences, which means they take on judicial powers that rightfully rest with the court.

    LAWRENCE V. TEXAS: On June 26, 2003, the decision issued in Lawrence v. Texas, 2003 U.S. LEXIS 5013,*;123 S. Ct. 2472; 156 L. Ed. 2d 508;71 U.S.L.W. 4574 (2003);
http://supct.law.cornell.edu/supct/html/02-102.ZS.html
http://www.supremecourtus.gov/opinions/02pdf/02-102.pdf
    A sentence of violent imprisonment and the denial of any motion for downward departure should be unconstitutional under Lawrence.  The motions above regarding  the constitutionality of the charges,  jurisdiction, and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000) etc., are also enhanced and relevant in light of the Lawrence decision.
    The Defendant's so-called criminal behavior was non-violent private behavior among consenting adults in a motel room.
    Each person has the right to do as he wishes so long as he doesn't use violence or theft against others.   Each person has the right to defend himself against violence and theft.  The purpose of government is to protect people and their property from violence and theft --to do what people have the right to do themselves in self-defense.  When the government strays from its proper purpose it becomes the violent violator of rights, the perpetrator of violence and theft.  And that is what the government did in this case to the defendant.
    Government at all levels is slowly beginning to understand fundamental concepts of liberty, albeit in very limited ways.  On July 4, 2003, Superior Court Judge Richard Savell of Fairbanks Alaska dismissed Scott A. Thomas' marijuana conviction, ruling that the Alaska Constitution guarantees the right to possess marijuana for personal use in the home.
http://www.adn.com/alaska/story/3410510p-3440920c.html
http://www.cannabisnews.com/news/thread16912.shtml
    Next, there is the following opening paragraph in Lawrence from Justice Kennedy's majority opinion:  "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression and certain intimate conduct."  (Lawrence,  http://www.supremecourtus.gov/opinions/02pdf/02-102.pdf  page 1).
    As Scott McPherson said in a column at the "Future of Freedom Foundation" http://www.fff.org/comment/com0307k.asp "An improvement could certainly be made, specifically by adding "or anything else that does not violate the rights of another person" at the end, but to say the least, it ain't a bad start. And note Justice Kennedy's reference to the American tradition of government, which places the individual on a plane above the state and limits government's domain over individual preferences.  Many of McPherson's comments are repeated herein.
    The Lawrence opinion continued, "It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons." (page 6) and "The State cannot demean their existence or control their destiny by making their private ... conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. 'It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter.' [the word "sexual" removed for emphasis] (at page 18).
    The words make an excellent libertarian argument, lay a brilliant philosophical  foundation, and easily open the door for greater future expansions of personal and economic freedom and the nullification of the "intervention of the government" in the ability of free men and women to "control their destiny."

    COMMERCE CLAUSE AND TENTH AMENDMENT: Combining the reasoning of Lawrence with the commerce clause, the court should conclude that the "war on drugs" by the national government is unconstitutional.  
    The defendant contends that his indictment violates the Commerce Clause and the Tenth Amendment because 841(a)(1) is not rationally related to an express Congressional power. The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U.S. Const. amend. X. Because the Tenth Amendment does not operate on the valid exercise of powers delegated to Congress by the Commerce Clause, no violation of the Amendment occurs if Congress's passage of an act was a valid exercise of those powers. United States v. Lopez, 459 F.2d 949, 951 (5th Cir. 1972)2
    The Commerce Clause states that "[t]he Congress shall have the power...[T]o regulate Commerce with foreign Nations, and among the several states and with the Indian Tribes." U.S. Const. art 1, 8, ci. 3. The Supreme Court has concluded that Congress, pursuant to this clause, permissibly may regulate (1) the use of the channels of interstate commerce; (2) the instrumentalities of interstate commerce, or persons or things in interstate commerce, even if the threat may derive only from intrastate activities; and (3) activities with a "substantial relation to interstate commerce." United States v. Lopez, 115 5.0. 1624, 1629-30 (1995).
    The Eleventh Circuit has held that "possession and sale of illegal drugs impacts upon interstate commerce," see United States v. Bernard, 47 F.3d 1101, 1103 (11th Cir. 1995), and that Congress "has authority under the Commerce Clause to criminalize and punish drug-related activity," see United States v. Jackson, 111 F.3d 101, 102 (11th Cir. 1997). The Former Fifth Circuit concluded that Congress acted within its power under the Commerce Clause in enacting 21 U.S.C. 841(a)(I) and 846. See Lopez, 459 F.2d at 953. (In Bonner v. City of Prichard, Ala., 661 F.2d 1206,1207(11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent the decisions of the Fifth Circuit rendered prior to 1 October 1981).
    The Commerce Clause argument should hold in the defendant's favor by reconsidering Lopez coupled with Lawrence.
    It took a constitutional amendment to enact alcohol prohibition. But there has never been a constitutional amendment allowing the federal war on drugs, and that is because citizens have become so used to the expansion of the federal government.  It would have been unconstitutional for the federal government to enact alcohol prohibition without a constitutional amendment and it is unconstitutional for the federal government to have enacted the war on drugs (and the statute herein) without a constitutional amendment.
    In Lopez,  the Supreme Court majority held that the Gun-Free School Zones Act of 1990 [18 U.S.C. 922(q)(1)(A)], which forbids "any individual knowingly to possess a firearm at a place that [he] knows...is a school zone," exceeds Congress' Commerce Clause authority.  In affirming the Fifth Circuit decision to invalidate 922(q) and reverse the defendant's conviction, the majority stated, "To uphold the Government's contentions here, we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.  Admittedly, some of our prior cases have taken long steps down that road, giving great deference to congressional action...The broad language in these opinions has suggested the possibility of additional expansion, but we decline here to proceed any further.  To do so would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated...and that there never will be distinction between what is truly national and what is truly local....This we are unwilling to do."
    Lopez, concerned a 1990 federal law forbidding the possession of firearms within 1,000 feet of a school.  Lopez argued that Congress had no power to pass such a law.  The Court rejected, by a 5-to-4 vote, the argument that the law was a legitimate exercise of Congress's constitutional power to regulate interstate commerce.  Chief Justice William Rehnquist explained that the law stretched the meaning of interstate commerce untenably.  
    Justice Stephen Breyer was so upset by the Lopez ruling that he took the unusual step of reading his dissent aloud.
    Syndicated columnist Joseph Sobran has observed that "The Constitution's list of the powers of Congress has little to do with the powers Congress actually exercises.  Where does it say that Congress can tax us to pay for things like pensions and medical plans, or housing or farm subsidies, or a thousand other things?  Why do expressions like 'federal programs' and 'the economy,' the everyday vocabulary of our current politics, appear nowhere in the Constitution?  The answer to such puzzles lies largely in the Commerce Clause."  Many of Sobran's comments are repeated herein.
    Federal Courts should exist as a check on Congress.  Alexander Hamilton first propagated this idea in The Federalist No. 78 when he described the Court as "a bulwark against legislative encroachment."
    The federal government has expanded its powers at whim, without bothering to amend the Constitution, by citing the Commerce Clause.
    In one of the earlier Commerce Clause cases, Wickard v. Filburn, the Court ruled that an Ohio farmer who had grown wheat on his own land, to feed his own livestock, was subject to Congress's power over interstate commerce on the remarkable grounds that such self-consumption, on a large scale, "exerts a substantial effect on interstate commerce."  Yet,  Congress is not given power to regulate every activity that "exerts a substantial effect on" interstate commerce; it is merely given power to regulate interstate commerce.
    If the same logic were applied to "commerce with foreign nations," Congress would have authority to regulate any activity in, say, France that "exerts a substantial effect" on trade with this country.
    Furthermore, "regulating" trade, does not authorize BANNING trade, as has been done in this case.
    In Lopez, the Supreme Court revisited earlier errors.  It has now affirmed that there are actually some things that aren't interstate commerce and can't even be reasonably said to "affect" interstate commerce.  
    Congress argued, in Lopez, that guns disrupt education, and education is necessary for productive citizens, and productive citizens sort of cause interstate commerce so Congress should, therefore, be able to keep guns out of schools. Lopez rejected this argument.
    The opposing argument in this case will be similar to Congress' argument in Lopez: that drugs disrupt some people's minds, and clear minds are necessary for productive citizens, and productive citizens sort of cause interstate commerce so Congress should, therefore, be able to ban drugs. The Court rejected this reasoning.
    It is preposterous to think that 95 percent of Congress's power should be buried in the words "and among the several states."  A sound sense of proportion would never allow this expression, taken in isolation from the rest, to overrule the clear sense of the whole document.  In Lopez, the Supreme Court has drawn a line against the sloppy invocation of interstate commerce.
    Rehnquist quoted Madison's assurance, in The Federalist No. 45, that the powers of the federal government under the Constitution are to be "few and defined," leaving untouched the "numerous and indefinite" powers remaining with the states.  Madison goes on to specify that most of those few federal powers have to do with "external objects," meaning foreign affairs; so that the states will deal with most domestic matters.  He points out that the more successfully the federal government does its proper job (chiefly, averting broils abroad), the smaller the role it will play in our daily lives.  
    Randy Barnett, the 9th Amendment scholar and author of The Structure of Liberty, has an excellent article, "The Original Meaning of the Commerce Clause," 68 U.Chi.L.Rev. 101 (2001), (and see  http://www.bu.edu/rbarnett/Original.htm) attacking the expansive interpretation of the clause invoked to justify so much Federal legislation, and thanks to a grant from the Cato Institute, a libertarian think-tank, he has a new book "Restoring the Lost Constitution: The Presumption of Liberty."  For us poor souls who have repeatedly run across the depressing phrase in court decisions that "statutes/ordinances carry a heavy presumption of constitutionality," it will be a nice change indeed to read of a presumption of liberty.
    In "The Original Meaning of the Commerce Clause" Barnett states "The U.S. Supreme Court, in recent cases, has attempted to define limits on the Congress's power to regulate commerce among the several states." While Justice Thomas has maintained that the original meaning of "commerce" was limited to the "trade and exchange" of goods and transportation for this purpose, some have argued that he is mistaken and that "commerce" originally included any "gainful activity." Having examined every appearance of the word "commerce" in the records of the Constitutional Convention, the ratification debates, and the Federalist Papers, Professor Barnett finds no surviving example of this term being used in this broader sense. In every appearance where the context suggests a specific usage, the narrow meaning is always employed. Moreover, originalist evidence of the meaning of "among the several States" and "To regulate" also supports a narrow reading of the Commerce   Clause. "Among the several States" meant between persons of one state and another; and "To regulate" generally meant "to make regular" -that is, to specify how an activity may be transacted- when applied to domestic commerce, but when applied to foreign trade also included the power to make "prohibitory regulations." In sum, according to the original meaning of the Commerce Clause, Congress has power to specify rules to govern the manner by which people may exchange or trade goods from one state to another, to remove  obstructions to domestic trade erected by states, and to both regulate and restrict the flow of goods to and from other nations (and the Indian tribes) for the purpose of promoting the domestic economy and foreign trade.
    The allegation in this case is a hand-to-hand transaction that occurred entirely in one city in Florida between consenting adults in the privacy of a motel room and provide no basis for jurisdiction under the commerce clause.

    FIFTH AMENDMENT TAKINGS:  21 U.S.C. 841(a)(1) constitutes an unlawful taking of property by the confiscation of property that is considered contraband (cocaine, etc.), and by the indictment's plea for forfeiture of the defendant's other property, and by the violent abduction and imprisonment of individuals for non-violent, consensual private behavior.
    The Fifth Amendment of the United States Constitution reads: "No person shall be.......deprived on life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation."
    Richard A. Epstein in his book "Takings: Private property and the power of Eminent Domain" said "In Mugler v. Kansas, 123 U.S. 623 (1887), the law under attack prohibited the operation of any brewery within the state of Kansas.  The plaintiff alleged that his brewery was constructed before the passage of the statute, that his property was ill-suited to any other use, and that its operation did not constitute a public nuisance."   Many of Epstein's comments are repeated herein.
    Justice Harlan, speaking for the court, upheld the statute by resorting to a two-pronged argument.  He first denied that the government action was a taking because the statute did not remove the plaintiff from the possession of his premises.  But that argument is refuted by a partial takings analysis, given that the incident of use was impaired.  The second prong is discussed infra.
    The reasoning of Mugler and its progeny should be revisited and overturned.  It is doubtful that the "no taking" argument was persuasive even to the court; if it had been, the detailed consideration of the police power justification that followed in Mugler would not have been necessary.  In dealing with the police power, Harlan's argument was quite simply that the legislature may take steps to control the disease, poverty, and crime held to be the inevitable and injurious consequences of alcoholism.  Missing was the necessary constitutional analysis of whether this "public nuisance" was properly attributable to the people effected by the law.  Even today the expansive theories of proximate causation only allow an injured party to reach the immediate supplier of the alcohol --bartenders, social hosts, or retail outlets-- but not the original producers. See, e.g., Vesely v. Sager, (5) Cal.3d 153, (4)86 P.2d 151, 95 Cal. Rptr 623 (1971), which allowed a party injured by a drunk driver to maintain an action against the purveyor of the alcoholic beverages.  That decision did not allow suit against the manufacturer of the beverages and was itself overturned by statute in California. Cal. [Bus. & Prof.] Code 25602 (West l964, 198 Supp.).  Similarly, most of the gun cases are decided the same way, so no action can be brought against the gun manufacturer if the gun is not itself defective.  See, e.g., Martin v. Harrington Richardson, Inc. 743 F.2d 1200 (7th Cir l984).  Therefore, allowing a legislature or Congress to designate such activities as nuisances is to erroneously allow it to define the scope of its own powers.
    Suppose, however, that the government's characterization of the manufacture of alcohol (or the distribution of cocaine) as a nuisance is, in fact, sound.  The second prong of inquiry --whether the statute is overbroad-- calls for analyzing whether the government's narrower means would achieve substantially the same end.  In particular, the Mugler court (and today's courts) never asked whether limitations upon the purchase or consumption of alcohol (or cocaine) --be it by age, place of service, or condition of user-- might have done away with a large portion of the alleged social problem without the enormous restrictions imposed upon Mugler's (or any supplier's) operations.  Likewise, the court (and today's courts) never asked whether a more stringent set of penalties against drunkenness (or cocaine intoxication or addiction) per se, or against offenses committed by persons in such condition(s), could have achieved the same effect (nor asked is whether prohibitory laws cause and increase the problems, as with alcohol prohibition).  The answers to these questions, of course, are argued both ways, but it is difficult to believe that the blanket prohibition against the manufacture of alcohol (or cocaine), could have been sustained when the government had not even explored lesser restrictions upon the sale and distribution of alcohol (or cocaine).  If the government must justify its undisputed taking of property (in this case, allegedly cocaine and the forfeiture of any defendant's other property), then the decision seems wrong, but if not wrong, then surely at the outer limits of the police power.

    NINTH AMENDMENT: 21 U.S.C. 841 (a)(1) constitutes a violation of the Ninth Amendment.
    "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." U.S. Constitution, Amendment IX.
    Although the Ninth Amendment obviously was intended to warn courts that citizens have rights that are not enumerated in the Bill of Rights or the Constitution, this amendment also has been virtually read out of the Constitution, although scholarly work in this area has awakened renewed interest in the Ninth Amendment. Defendant argues that, considered in light of Lawrence, the time is right for a Ninth Amendment challenge to federal drug laws.  The Ninth Amendment challenge also bolsters defendant's other constitutional arguments in that the Ninth Amendment further shows the great limits intended for federal action, and how far the federal government has strayed therefrom.


DEFENDANT DENIED SIXTH AMENDMENT RIGHT TO IMPARTIAL JURY
& TO EXCLUDE JURORS EDUCATED IN GOVERNMENT SCHOOLS
    The Defendant cannot obtain an impartial jury due to the fact that some, if not all, jurors will have been educated in government schools and cannot be impartial.  The Sixth Amendment reads "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....."  
    When the U.S. Constitution was written, most jurors received private educations, and government schools, if they existed at all, were rare and did not predominate as they do today.   And thus the defendant would have received an impartial jury.  Of course, the defendant would not have been charged in the first place because the libertarian concepts of "life, liberty and the pursuit of happiness" did not create laws banning the use of cocaine.  There was no unconstitutional federal "war on drugs" and the contraband like that alleged here could have been purchased over the counter.
    If the authors of the Constitution had foreseen the government's modern education monstrosity then the Sixth Amendment would have stated "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.....and if the government takes over the schools, then jurors must come only from non-government schools."
    Better still, the authors would have explicitly banned government schools just as they banned government churches, in the First Amendment, stating  "Congress shall make no law respecting an establishment of religion or education, or prohibiting the free exercise thereof; or abridging the freedom of the speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Nor suppressing such through an establishment of religion or education."
     The separation of school and state is as important as the separation of church and state.  And for the same ideological reasons.  
    The Constitution is supposed to limit the government and enumerate its clauses, and no where in the Constitution do the words "schools" "education" nor "War on Drugs" or any part thereof appear.
    Yet, the government takeover and destruction of schools began in the middle 1800's according to John Taylor Gatto, a former New York state (public) Teacher of the Year, who started to develop this thesis in his slim but estimable 1992 volume "Dumbing Us Down: The Hidden Curriculum of Compulsory Schooling." Now he's returned with a massive and far better-developed follow-up, the 400-page "Underground History of American Education," subtitled "A Schoolteacher's Intimate Investigation Into the Problem of Modern Schooling" ($34 postpaid, Oxford Village Press, 725 McDonough Road, Oxford, N.Y. 13830.)  The syndicated columnist Vin Suprynowicz wrote about Mr. Gatto and many of his remarks about Mr. Gatto appear below.  
    "By 1840" (more than a decade before the opening of the first tax-funded government schools on the modern model, in Massachusetts) "the incidence of complex literacy in the United States was between 93 and 100 percent. ... In Connecticut only one citizen out of every 579 was illiterate and you probably don't want to know, not really, what people in those days considered literate; it's too embarrassing. Popular novels of the period give a clue: 'Last of the Mohicans,' published in 1818, sold so well a contemporary equivalent would have to move 10 million copies to match it. If you pick up an uncut version you find yourself in a dense thicket of philosophy, history, culture, politics, geography, astute analysis of human motives and actions, all conveyed in data-rich periodic sentences so formidable only a determined and well-educated reader can handle it nowadays. Yet in 1818 we were a small-farm nation without colleges or universities to speak of. Could those simple folk have had more complex minds than our own?
    Gatto states: "By 1940 the literacy figure for all states stood at 96 percent for whites. 80 percent for blacks. Notice for all the disadvantages blacks labored under, four of five were still literate. Six decades later, at the end of the 20th century, the National Adult Literacy Survey and the National Assessment of Educational Progress say 40 percent of blacks and 17 percent of whites can't read at all. Put another way, black illiteracy doubled, white illiteracy quadrupled," despite the fact that "we spend three or four times as much real money on schooling as we did 60 years ago."
    And Mr. Gatto knows why. Gatto's historical research tells him none of this is an accident - public school pioneers like Horace Mann found the regimented system they were looking for when they visited Prussia in the 1840s, importing wholesale a scheme to tame and regiment what they saw as America's dangerously anarchist new immigrant working class, training the young of this underclass to report to a central government facility as soon as they were old enough to use the latrine, there to be trained to all hold identical shallow, memorized opinions and to march around to the sound of bells.   Yes, some basic literacy and numeracy would be necessary for them to fill their intended roles in the army and in the factories ... but not too much, and certainly not the kind of critical and analytic skills which might lead them to question their new government bosses.
    Now back to the point of this motion: Because the authors of the Constitution did not foresee and ban government schools, jurors spend twelve years or more years educated in government schools to obey the government, and they are subjected to government propaganda (e.g. the movie "Reefer Madness," the "Say NO to drugs" campaign, and superbowl ads that blame drug users for terrorism, etc.).
    Not only have these jurors been educated in government schools to obey the government, they are given a pop quiz as they walk into the courthouse for jury duty: "Get in line, show your photo identification (for some reason only the Middle District demands photo ID?),  put your bags on the conveyor for X-ray and hand search, empty your pockets, step through the magnetometer, submit to the assembly line search, lift your arms for the hand wand, turn around.  There, you passed the test. You will make a fine sheep, err, juror, I meant."  Juror  response "why thank you for lavishing your attention upon me! It makes me feel safe and special. And thanks for your kind compliment. But it's really nothing, I'm just here to follow instructions, to do my duty, and to hang the defendant -after a fair trial, of course!"
    Of course.
    Government schools, and the courthouse search procedures, prevent people who are antithetical to government.  Government schools condition students to submit to government personnel, to government searches, to fill out government forms, and to carry government identification.  The government's assembly line search procedures exclude people who find government searches offensive, as well as the requirement to display identification on demand.  Government no longer teaches any proper limited role of any government, including the federal government.  Government schools teach that drug laws are good, and that jury nullification is not on the curriculum.  Then, the jury voir dire process follows up by excluding people who somehow learned otherwise.
    It is said that a prosecutor can get a grand jury to indict a ham sandwich.  It should also be said that a regular trial jury would convict the ham sandwich, thanks to government schools.  And under the sentencing laws the judge would have to sentence the ham sandwich to a minimum mandatory sentence in prison. The ham sandwich in this case objects to the denial of an impartial jury and public trial.
    Things haven't progressed much since the Salem witch trials.  If the government tried people for casting spells that tortured little children, trial jurors would be seated who pledged to follow the law, they would seriously consider the first-hand testimony presented, and convict.   Witchcraft is still illegal in some countries.
    Government schools create milquetoast jurors in the same way that Cuban schools create socialists.  Government schools in the U.S. are different only in degree from schools in the former U.S.S.R.
    If the defendant were tried in the former Union of Soviet Socialist Republics by jurors from Soviet schools it would be impossible for the defendant to argue in favor of fundamental freedoms such as economic liberty, private property, peaceful private intercourse with other adults, the right to run a business, to sell and buy, etc.  Yet, to a different degree, the same arguments have been quashed even in the U.S. for the defendant.

DEFENDANT DENIED FIRST AMENDMENT RIGHT
& SIXTH AMENDMENT RIGHT TO PUBLIC TRIAL
    The Defendant cannot obtain a meaningful public trial due to the fact that some, if not all, news reporters have been educated in government schools and subjected to the same prejudicial government influences and propaganda that deny the defendant an impartial jury.   
    Some jurors could actually be from the media - a frightening thought alone.  Journalists are like regular jurors, suffering the same infirmities argued above, from a government education.   
    Media coverage of the unconstitutional war on drugs is barely more enlightening than reading Pravda.  It makes a defendant's right to a public trial meaningless.  Media have made a career out of toadying the government line on the war on drugs, repeating government propaganda, cheerleading the constant growth of government, and destroying impartial jurors, and conditioning jurors to convict for any "crime" that government declares.   
    The First Amendment states, "Congress shall make no law.....abridging the freedom of speech, or of the press."   The Sixth Amendment reads "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...." and providing the defendant his 14th Amendment rights through it's application to the states.
    Congress and the states make laws that maintain the government-school monopoly and thereby abridge the freedom of speech, and of the press, and deny defendants their right to a public trial.
    When the U.S. Constitution was written, most news reporters received private educations, and government schools, if they existed at all, were rare and did not predominate as they do today.   And thus the defendant would have received a meaningful public trial, even though he would not have been charged in the first place because the media held libertarian concepts of "life, liberty and the pursuit of happiness" and the media did not editorialize for laws criminalizing contraband like that in this case, that was available over the counter.  
    If the authors of the Constitution had foreseen the government's modern education monstrosity then the authors would have explicitly banned government schools just as they banned government churches, in the First Amendment, stating  "Congress shall make no law respecting an establishment of religion or education, or prohibiting the free exercise thereof; or abridging the freedom of the speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Nor suppressing such through an establishment of religion or education."
    Government schools are incompatible with free speech and press.  Government schools should be unconstitutional under the First Amendment
    Even if a constitutional argument could be made for the initial creation of some government schools, their ongoing existence is proof of their ongoing failure to educate people to handle their own educations without government schools.
    Government schools are as unconstitutional as government instructors selecting and editing press stories.  Or if compulsory education were extended to include mandatory government schooling into adulthood, specifically including special classes for the media.
    The effect of government schools upon the media does not end after high school or college.  From the earliest age, the government teaches students what to think, say and write, and the lessons abridge freedom of speech and press, and the ability to seat impartial jurors and receive a public trial.
    The media prove the need to end government schools.  

DEFENDANT DENIED FIRST AMENDMENT RIGHT
& THE TRIAL VIOLATES ESTABLISHMENT CLAUSE
    The First Amendment states, "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof;....."  
    Government schools are de facto churches and violate the establishment clause.  Government schools espouse the government's belief in itself as an omnipotent, omniscient entity with unlimited powers (or striving fast to get there) and the ability to perform miracles.   The religion is the cult of the omnipotent state.  
    The Constitution is supposed to limit the government and enumerate few purposes in its clauses, and no where in the Constitution do the words "schools" "education" nor "War on Drugs" or any part thereof appear.
    The law under which the defendant is charged is as offensive as any "blue law" where a religious belief is imposed upon intercourse between peaceful adults in the privacy of a motel room.
    When the U.S. Constitution was written, most jurors received private educations, often in church schools, and government schools, if they existed at all, were rare and did not predominate as they do today.   Government, through taxation and other forms of socialism, has forced itself into the place held historically by church schools.
    If the Constitution's authors had foreseen the government's modern education monstrosity then the Sixth Amendment would have stated "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.....and if the government takes over the schools, then jurors must come from non-government schools."
    Better still, the authors would have explicitly banned government schools just as they banned government churches, in the First Amendment, stating  "Congress shall make no law respecting an establishment of religion or education, or prohibiting the free exercise thereof; or abridging the freedom of the speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Nor suppressing such through an establishment of religion or education."
    The separation of school and state is as important as the separation of church and state.

    CONCLUSION
    Based on the foregoing arguments and authorities, the defendant  respectfully submits that the indictment herein should be dismissed.  The purpose of government is to protect individuals and their property from violence.  When government strays from this purpose it becomes the violent violator of rights. On its face, 21 U.S.C. 841 (a)(1) violates individual rights by the confiscation of property that is considered contraband, and by the violent abduction and imprisonment of individuals for non-violent, consensual behavior, in the privacy of their own homes, under penalties that constitute cruel and unusual punishment.  The indictment should be dismissed, or the defendant should be granted bifurcated trials, the jury should be informed of the penalty, and the defendant, if he is convicted, should be sentenced to a non-incarcerative sentence and should be granted the other relief requested.
Respectfully submitted,
_____________________________
Rex Curry,
Attorney for Defendant
Tampa, Florida
rexy@ij.net