IN THE SUPREME COURT OF THE UNITED STATES

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[DRUG WAR VICTIM],

PETITIONER-DEFENDANT-APPELLANT

- VS. -

THE UNITED STATES OF AMERICA

RESPONDENT-PLAINTIFF-APPELLEE

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PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

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Rex Curry
P.O. Box 8816
Tampa, Florida 33674-8816
(813) 238-5371
ATTORNEY FOR PETITIONER

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QUESTIONS PRESENTED FOR REVIEW

1. Whether the Court should grant certiorari to examine the important national issue of whether the federal government's "war on drugs is constitutional, especially where a mandatory minimum sentence of life imprison may violate judicial powers, and where the life sentence is imposed based on an indictment that did not allege the defendant's completely non-violent prior record upon a man who has no prior violent criminal history, and who is now violently imprisoned for non-violent economic activity with consenting adults in the privacy of his home within a single state.

- Prefix -

PARTIES TO PROCEEDING

All parties to the proceeding are identified in the caption.

OPINION BELOW

A copy of the non-published opinion is joined as Appendix "A".

JURISDICTION

Jurisdiction of this Court is invoked under Title 28 U.S.C. section 1254(1). On August 11, 2003, the Court of Appeals affirmed the conviction and sentence.

STATUTORY PROVISIONS INVOLVED

The statute under which appellant was sentenced provides in relevant part that:

(1)(A) In the case of a [drug offense] involving- ...

(ii) 5 kilograms or more of a mixture or substance containing a detectable amount of- ...

(II) cocaine, its salts, optical and geometric isomers, and salts of isomers; ...

(iii) 50 grams or more of a mixture or substance described in clause (ii) which contains cocaine base; ...

....If any person commits a violation of this subparagraph or of section 859, 860, or 861 of this title after two or more prior convictions for a felony drug offense have become final, such person shall be sentenced to a mandatory term of life imprisonment without release and fined in accordance with the preceding sentence.

21 U.S.C. § 841(b) (emphasis added). The guidelines also provide for a 100:1 weight ratio which effectively punishes "cocaine base" offenses more severely than "cocaine" offenses. See U.S.S.G. § 2D1.1(c).

STATEMENT OF THE CASE

Course of Proceeding and Disposition in the Court Below.

[DRUG WAR VICTIM] was indicted on January 29, 2002, in the United States District Court, Middle District of Florida, Tampa Division. Count One of the Indictment charged that, from an unknown date through in or about September, 2001, the defendant conspired to possess with intent to distribute 50 grams or more of cocaine base, contrary to 21 U.S.C. § 841 (a)(1) and 21 U.S.C. § 841 (b)(1)(A)(iii). Count Four of the Indictment charged that on June 1, 2001 the defendant possessed with the intent to distribute 50 grams or more of cocaine base, also known as “crack” cocaine, in violation of 21 U.S.C. § 841 (a)(1) and § 841 (b)(1)(A)(iii).

[DRUG WAR VICTIM]’s trial began on April 30, 2002. The jury found the defendant guilty of Counts One and Four of the Indictment.

Sentencing occurred on September 20, 2002, and the defendant was sentenced to life imprisonment based on a sentencing enhancement filed pursuant to 21 U.S.C. section 851(b) alleging two or more prior convictions for non-violent drug offenses requiring a mandatory term of imprisonment. The defendant is presently in prison. An appeal to the 11^th Circuit Court of appeals followed, and relief was denied on August 11, 2003. This Petition for writ of certiorari followed.

B. Statement of the Facts.

A hearing was held in which evidence was received on the issue of Mr. [DRUG WAR VICTIM]’s prior convictions, and the Court found that the convictions were established.

On appeal to the eleventh circuit court of appeal, [DRUG WAR VICTIM] posed these arguments: (1) his convictions and sentences violated the Commerce and Contracts Clauses and the Fifth, Eighth, Ninth, and Tenth Amendments to the U.S. Constitution; (2) the district court abused its discretion in denying [DRUG WAR VICTIM] the opportunity to inform the jury on “jury nullification” and the potential statutory penalties of his offenses; and (3) the district court violated Apprendi v. New Jersey, 120 S.Ct. 2348, 2362-63 (2000), by sentencing [DRUG WAR VICTIM] to enhanced sentences based on prior convictions not alleged in his indictment.

All of these arguments were rejected by the appellate court on the basis of its decision attached hereto.

REASONS FOR GRANTING THE WRIT

The Court should grant certiorari to examine the important national issue of whether the federal government’s “war on drugs” is constitutional, especially where a mandatory minimum sentence of life imprison is imposed based on an indictment that did not allege the defendant’s completely non-violent prior record upon a man who has no prior violent criminal history, and who is now violently imprisoned for non-violent economic activity with consenting adults in the privacy of his home within a single state.

APPRENDI ISSUE: [DRUG WAR VICTIM] contends that the district court violated Apprendi by enhancing his 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 upheld [DRUG WAR VICTIM]’s 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 did not plead, and no jury found, any prior record, the Defendant moved for a bifurcated trial regarding his prior record and to argue jury pardon/nullification (Doc 47, 77 and 91).

In the types of cases alleged here (whenever there is audio and 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 have been informed of the penalty in this cause, and it should have been 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 the 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 is unconstitutional because it is cruel and unusual punishment in permitting a mandatory minimum life sentence against a man who has never committed an act of violence in his life and who engaged in economic activity with consenting adults in the privacy of his own home.

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.

Mr. [DRUG WAR VICTIM] argues that, unlike cases involving violence or theft as in Ewing and Locker, [DRUG WAR VICTIM]’s case involves no theft or violence, and involved consensual conduct between adults in the privacy of his home, and therefore his case fulfills the gross proportionality principle that “reserves a constitutional violation for only the extraordinary case” under Lockyer. [DRUG WAR VICTIM] has been crucified.

[DRUG WAR VICTIM]’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.

[DRUG WAR VICTIM]’s sentence is unusual because mandatory minimums are unusual, especially life sentences 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 life 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: Defendant was sentenced on September 20, 2002, and thereafter, 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

The sentence of violent imprisonment and the denial of the defendant’s motion for downward departure are unconstitutional under Lawrence. The motions 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.

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.

[DRUG WAR VICTIM] contends that his indictment violated 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 [DRUG WAR VICTIM]’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 allegations in this case are hand-to-hand transactions that occurred entirely in Tampa, Florida between consenting adults in the privacy of [DRUG WAR VICTIM]’s home 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 forfeiture of a 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.

CONCLUSION

Based on the foregoing arguments and authorities, Appellant [DRUG WAR VICTIM], respectfully submits that the petition for writ of certiorari should be granted. 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 should be resentenced, to a non-life sentence, and/or to a non-incarcerative sentence and should be granted the other relief requested.

Respectfully submitted,

------------------------ Date:

Rex Curry

Attorney for Petitioner

P.O. Box 8816

Tampa, Florida 33674-8816

(813) 238-5371

(For more ideas on liberty and libertarianism see http://members.ij.net/rex & http://rexcurry.net from Rex Curry at rexy@ij.net or ecurry@interaccess.net or rexatious@hotmail.com).