United States v. Raymond Moore

Circuit Judge Wilkey, with whom Circuit Judges MacKinnon and Robb join, filed an opinion voting to affirm all convictions and the sentences in the District Court. Circuit Judge Leventhal, with whom Circuit Judge McGowan concurs, filed an opinion voting to affirm all convictions and to remand to the District Court for further consideration of NARA disposition on resentencing. Circuit Judge MacKinnon concurred in Part IV of Circuit Judge Leventhal's opinion, and Chief Judge Bazelon in Part V thereof. Circuit Judges MacKinnon and Robb filed separate opinions voting to affirm all convictions and the sentences in the District Court.

Circuit Judge Wright, with whom Chief Judge Bazelon and Circuit Judges Tamm and Robinson join, filed a dissenting opinion voting to remand for a new trial in which the jury would be permitted to decide whether the defendant as a result of his repeated use of narcotics lacked substantial capacity to conform his conduct to the requirements of the law. Chief Judge Bazelon filed a dissenting opinion, stating he would extend the possibility of this defense of lack of capacity to crimes other than narcotics possession.

There being a majority of five judges of the court voting to affirm all convictions, but there being no majority in favor of any specific disposition, Circuit Judges MacKinnon, Robb and Wilkey, without intimating any dissatisfaction with the sentences originally imposed by the District Judge, vote to join Circuit Judges McGowan and Leventhal in affirming defendant Moore's conviction on all counts, vacating the sentences imposed, and remanding to the District Court for resentencing.

So ordered.

WILKEY, Circuit Judge, with whom Circuit Judges MacKINNON and ROBB join.

This is an appeal from a conviction under two federal statutes for possession of heroin. Appellant contends that his conviction was improper because he is a heroin addict with an overpowering need to use heroin and should not, therefore, be held responsible for being in possession of the drug. After careful consideration, we must reject appellant's contention and affirm the conviction by the trial court.

I. The Undisputed Evidence and the District Court's actions

During January 1970 the Metropolitan Police began an investigation into a heroin trafficking operation allegedly being conducted in a Northwest Washington hotel. Through an informant, investigating officers learned that two men, identified simply as "Crip Green" and "Jumbo," were selling the drugs from two rooms in the hotel; acting under police supervision, the informant made heroin purchases from both of the suspects.

Based upon this information, search warrants for the two hotel rooms were obtained and executed on 29 January 1970. After knocking and announcing their identity and purpose, and receiving no reply, the officers forced their way into the room. The scene that greeted the officers was accurately described in appellant's own brief as follows:

The room was about 10-12 feet in depth. Against the far wall was a bed, the head of the bed being to the left and the foot to the right. Two chairs were positioned at the side of the bed, facing it, and about one foot away. Sherman W. Beverly was seated on the left-hand chair, and Raymond Moore was seated on the right-hand chair. Both were still seated, and simply twisted around in their chairs to look at the door, when Officer Daly entered.

. . . In front of Mr. Beverly's chair, about one inch from the edge of the bed, was a white-framed mirror on which there was a quantity of white powder (later found to be 1,854.5 milligrams of a mixture containing 4-7% heroin). [Footnote omitted.] To the right of the mirror, in front of Appellant's chair, was a flat square cardboard record album cover, on which there was also a quantity of white powder (later determined to be 1,824 milligrams of a mixture containing 4-7% heroin). Between these two "cutting boards" lay 93 new gelatin capsules and 81 used gelatin capsules (as determined by the fact that there was a small but detectable amount of white powder containing heroin in the capsules). To the left of the mirror lay 67 capsules filled with a white powder (later found to be a total of 3,650 milligrams containing 4-7% heroin). Toward the far edge of the bed there was a woman's stocking stretched over a wire coat hanger (called a cutting screen). Next to the cutting screen was an unopened package containing about 10 hypodermic syringes and needles. Lying on the album, in front of Mr. Moore's chair, was an ace of hearts cut in half (often called a cutting card). Near the pillow were a set of keys that were found to fit the door of room 15. Under the pillow was a 38-caliber Smith & Wesson pistol.

It is obvious that these implements were intended for use in mixing undiluted heroin with lactose and/or quinine to reduce it to a street concentration of about 5-10%, cutting into the quantity normally injected, and capping it in a form in which it can be sold and carried.

After Appellant and Beverly were arrested, they were searched. A plastic vial containing 50 capsules of a white powder (later found to be a total of 2,274.9 milligrams of a mixture containing 4-7% heroin) was found in Appellant's right front trouser pocket. Nothing was found on Beverly.1

Upon this evidence a four-count indictment was returned charging appellant with violations of the Harrison Narcotics Act, 26 U.S.C. Sec. 4704(a) (1964), and the Jones-Miller Act, 21 U.S.C. Sec. 174 (1964).2 Advancing his argument that he was a hopelessly dependent addict and could not, therefore, be held responsible for possession of heroin, appellant sought to have the indictment dismissed under the authority of this court's opinion in Watson v. United States.3

At the hearing on this motion appellant stated and the Government stipulated that appellant was indeed a heroin addict. Appellant further testified that he was not a heroin pusher, had never engaged in drug trafficking, and had simply come to the hotel room where he was arrested in order to purchase the illicit drug.

Relying on our opinion in Watson, appellant argued that he was a mere nontrafficking addict and that the indictment should be dismissed for any one of three reasons. First, appellant argued that it is unconstitutional to hold a nontrafficking addict guilty of simple possession of heroin. This position rests on an amplification and extrapolation of the Supreme Court's interpretation of the Eighth Amendment advanced in the admittedly confused and divergent opinions in Robinson v. California4 and Powell v. Texas.5 The second ground, an extension of the common law principle that there cannot be the requisite free will if the illegal act is performed because of overpowering compulsion, asserts that a narcotics addict is excused from any criminal penalties for the illegal acts of purchase, possession, and use of narcotics to satisfy his personal addictive needs. The third is appellant's construction and interpretation of the series of four congressional acts, which not once since 1909, neither in black letter statute nor in committee report, have specifically exempted the non-trafficking addict from criminal penalties for purchase, possession, and use.

The Government responded by arguing first that there was no constitutional, common law, or statutory rationale for permitting a non-trafficking addict a defense to a charge of possession of heroin. Secondly, it contended that in any event Moore was not a non-trafficking addict but was in fact engaged in pushing the drug and, even if there were a defense available to mere addicts, such a defense should not be permitted here.

Following a hearing, the trial court denied appellant's motion to dismiss. The trial judge, however, reserved his judgment on whether evidence of addiction could be introduced to the jury by the defense.

At trial the principal prosecution witness was the arresting officer who testified to the facts described above. In addition he testified that he had no personal knowledge that appellant was engaged in drug trafficking, that no tests had been conducted to determine if appellant's fingerprints were on the paraphernalia in the room, that no tests were conducted to determine if heroin powder was present on appellant's hands, and that he had not checked the hotel register and had no way of knowing whether appellant was in any way connected with the room in which he was arrested. On cross-examination the officer admitted that some addicts' habits require 50 to 100 capsules per day, and that having that many capsules in his pockets would not necessarily be inconsistent with appellant being a mere non-trafficking addict. Finally, the officer agreed on cross-examination that in his opinion appellant Moore was a heroin addict.

During the Government's presentation, the court heard out of the presence of the jury the testimony of Dr. Kaufman, an expert on drug addiction. Dr. Kaufman testified that appellant was an addict of long standing, that appellant's addiction had the characteristics of a disease, and that as a consequence appellant was helpless to control his compulsion to obtain and use heroin.

At the conclusion of this testimony, the trial court ruled that Dr. Kaufman would not be permitted to testify before the jury, apparently on the ground that addiction can never be a defense to a charge of possession of heroin. After the Government rested its case, the court denied a motion by appellant for a judgment of acquittal. Appellant then renewed his motion to dismiss the indictment on the basis of Watson. This motion to dismiss was rejected this time because the court felt that there was sufficient evidence of trafficking to permit the case to go to the jury. The court also indicated that it would now permit Dr. Kaufman to testify; this permission was, however, withdrawn the following day.

After this ruling the defense decided not to introduce any further evidence. Before resting, however, for purposes of completing the trial record, the defense offered to introduce the testimony of Mr. McKinley Gore of the District of Columbia Narcotics Treatment Administration. This testimony would have been to the effect that some addicts have habits that require more than 50 capsules per day and that such addicts may have more than 50 capsules in their possession at one time. Mr. Gore also would have testified, if permitted, that appellant was currently enrolled in a methadone therapy program, that in Mr. Gore's opinion appellant's chances for rehabilitation were good, and that Moore was beginning to solve the root problem of his addiction and would soon no longer need heroin.

Following this proffer, the court declined to instruct the jury that a nontrafficking addict could not be convicted under the statutes charged. Moore was found guilty on all four counts of the indictment. Acting upon appellant's motion immediately after the verdict was announced, the court committed appellant to the Federal Correctional Institute at Danbury, Connecticut, for determination of his suitability for treatment under Title II of the Narcotics Addict Rehabilitation Act of 1966, 18 U.S.C. Sec. 4251 et seq. (1970). Subsequently, the NARA staff reported that appellant was an addict, both physically and psychologically dependent on heroin, but was not suitable for treatment. Thus on 14 June 1971 the court sentenced appellant to concurrent terms of two to six years for the violations of 26 U.S.C. Sec. 4704(a) and six years for the violations of 21 U.S.C. Sec. 174. Appellant now seeks reversal of this conviction.

We believe it is clear from the evidence that Moore was not a mere non-trafficking addict but was in fact engaged in the drug trade.6 Yet even if we were to assume that appellant was a simple addict and nothing more, we believe that his conviction must be sustained.

Let us see how far the logical basis of appellant's argument would inexorably take us. Bear in mind that this logical extension of the argument appellant makes here was foreseen by Justice Black and others of the Supreme Court in Robinson and Powell, as discussed infra, which may account for the limits written into those decisions, limits which appellant would have this court take upon itself to expand.

According to appellant this case has one central issue:

Is the proffered evidence of Appellant's long and intensive dependence on (addiction to) injected heroin, resulting in substantial impairment of his behavior controls and a loss of self-control over the use of heroin, relevant to his criminal responsibility for unlawful possession. . . .7

In other words, is appellant's addiction a defense to the crimes, involving only possession, with which he is charged? Arguing that he has lost the power of self-control with regard to his addiction, appellant maintains that by applying "the broad principles of common law criminal responsibility" we must decide that he is entitled to dismissal of the indictment or a jury trial on this issue. The gist of appellant's argument here is that "the common law has long held that the capacity to control behavior is a prerequisite for criminal responsibility."8

It is inescapable that the logic of appellant's argument, if valid, would carry over to all other illegal acts of any type whose purpose was to obtain narcotics for his own use, a fact which is admitted by Judge Wright in his opinion9 Appellant attempts to justify only the acts of possession and purchase of narcotics, both illegal, and both prohibited because if successfully prohibited they would eliminate drug addiction. The justification is on the basis that the addict has lost the power of control over his choice of acts. Appellant argues that the same rationale, justifying a tolerance of these two illegal acts by this court, or a strained construction of the statute that Congress really did not intend to prohibit such acts, or that it is constitutionally impermissible to prohibit such acts, would not carry over to other actions for the same purpose of obtaining narcotics for his own use.

In the case of any addict there are two factors that go to make up the "self-control" (or absence thereof) which governs his activities, and which determines whether or not he will perform certain acts, such as crimes, to obtain drugs. One factor is the physical craving to have the drug. The other is what might be called the addict's "character," or his moral standards. In any case where the addict's moral standards are overcome by his physical craving for the drug, he may be said to lose "self-control," and it is at this point, and not until this point, that an addict will commit acts that violate his moral standards. For our purposes here, we may think of such acts as crimes to obtain drugs.

The legally determinative matter under appellant's theory must be the sum or result of the two factors. Putting it in mathematical terms, if the addict's craving is 4 on a scale of 10, and his strength of character is only 3, he will have a resulting loss of self-control and commit some illegal act to acquire drugs, perhaps only an illegal purchase and possession. For a different example, let us assume a medically induced addict, whose craving is 6, but whose strength of character is 8; with him there will be no resulting loss of self-control, and presumably no illegal acts of any kind. A third example, an addict with a craving of 8, and a strength of character of 3, may result in a loss of self-control to a degree that the addict robs a bank at gunpoint to obtain money to buy drugs.

In all these examples the legally important factor is the resulting loss of self-control. Drug addiction of varying degrees may or may not result in loss of self-control, depending on the strength of character opposed to the drug craving. Under appellant's theory, adopted by the dissenters, only if there is a resulting loss of self-control can there be an absence of free will which, under the extension of the common law theory, would provide a valid defense to the addict. If there is a demonstrable absence of free will (loss of self-control), the illegal acts of possession and acquisition cannot be charged to the user of the drugs.

But if it is absence of free will which excuses the mere possessor-acquirer, the more desperate bank robber for drug money has an even more demonstrable lack of free will and derived from precisely the same factors as appellant argues should excuse the mere possessor.

In oral argument appellant maintained that there are different kinds of addicts, that is, some who are able to confine their law violation to possession and acquisition for their own use and some who will commit crimes other than possession or acquisition to feed their habits; and that it is only the latter whom we should punish for their addiction. This position of appellant is, unfortunately, logically untenable, if one accepts appellant's own rationale that we must not punish addicts for possession because of the compulsion under which they act to acquire the drugs.

By definition we have assumed crimes of two classes-first, simple possession and acquisition, or second, greater crimes such as robbery-both motivated by the compulsive need to obtain drugs resulting in loss of self-control. If we punish the second, we can do so only because we find free will. If free will can exist for the second, it likewise must exist for the first class. If, like appellant, one takes the position that any addict who commits crimes (i.e. robbery) to feed his habit may be punished, one is making a judgment that this addict possesses free will, that he is somehow guilty in a way that the addict who does not commit such crimes to feed his habit (other than the crimes of acquisition and possession) is not. In other words, it follows necessarily that the quality that makes this addict commit such crimes to obtain the drugs is not the compulsion of addiction and the loss of "self-control," but is something apart from his addiction-but if we are dealing with a motivating factor other than drugs, this is another case, it is not the example called for by appellant's rationale. What the analysis just made demonstrates, even in the case of the addict-robber, is that his crime is caused by the same compulsion, his loss of self-control, due to his addiction.

Although attempted by appellant here, there can be no successful differentiation between the source of the drive, the compulsion and resulting loss of control which, appellant argues, vitiates legal accountability, hence the same compulsion would necessarily serve as the basis of the defense for each of the posited illegal acts. It is only a matter of degree. In fact, it seems clear that the addict who restrains himself from committing any other crimes except acquisition and possession, assuming he obtains his funds by lawful means, has demonstrated a greater degree of self-control than the addict who in desperation robs a bank to buy at retail. If the addict can restrain himself from committing any other illegal act except purchase and possession, then he is demonstrating a degree of self-control greater than that of the one who robs a pharmacy or a bank, and thus his defense of loss of control and accountability is even less valid than that of the addict who robs the pharmacy or the bank.

From the dissenting opinions it is not clear whether they ignore the logical inconsistency of this position, or whether the dissenters vaguely recognize the inconsistency and arbitrarily draw a line beyond which, to crimes other than acquisition and possession by a proven addict, the defense of lack of free will may not be deployed. Certainly Justice Marshall, writing for four members of the Court in Powell, declared that the limitation proposed by Justice Fortas regarding the defense of chronic alcoholism was merely "limitation by fiat."10 And so it would be here.

The obvious danger is that this defense will be extended to all other crimes-bank robberies, street muggings, burglaries-which can be shown to be the product of the same drug-craving compulsion. Not only would the extension of the defense be on the same logical basis as the defense urged here, and as made indubitably certain in Judge Bazelon's separate opinion, but the words of Judge Wright indicate that the door would be open to another possible extension of the newly created defense not hitherto envisaged:

While these comments in Powell were offered simply as dicta, they do indicate the position of the Court. Consequently [we limit] the availability of the addiction defense to only those acts which, like mere purchase, receipt or possession of narcotics for personal use, are inseparable from the disease itself and, at the same time, inflict no direct harm upon other members of society.11

We find cold comfort in Judge Wright's words.

If "mere purchase" by the addict is protected, what about "mere sale" to the same addict? Could not the sale of narcotics to a poor drug-crazed addict, driven by the compulsion of his unsatisfied needs, be defended as a humane act "inflict[ing] no direct harm upon other members of society"? Why would the supplying of narcotics by an illicit trafficker to a certified addict be any less humane, or inflict any more harm on other members of society, than the supplying of narcotics to the same addict by a licensed member of the medical profession?12

1. All of this points up the wisdom of Justice Black's observations in Powell, where he reached the conclusion that questions of "voluntariness" or "compulsion" should not be "controlling on the question [of] whether a specific instance of human behavior should be immune from punishment as a constitutional matter"; his arguments also show how the so-called "common-law defense" of compulsion may be unwisely applied here:

When we say that appellant's [act] is caused not by "his own" volition but rather by some other force, we are clearly thinking of a force that is nevertheless "his" except in some special sense. [Footnote omitted.] The accused undoubtedly commits the proscribed act and the only question is whether the act can be attributed to a part of "his" personality that should not be regarded as criminally responsible. Almost all of the traditional purposes of the criminal law can be significantly served by punishing the person who in fact committed the proscribed act, without regard to whether his action was "compelled" by some elusive "irresponsible" aspect of his personality. As I have already indicated, punishment of such a defendant can clearly be justified in terms of deterrence, isolation, and treatment. On the other hand, medical decisions concerning the use of a term such as "disease" or "volition," based as they are on the clinical problems of diagnosis and treatment, bear no necessary correspondence to the legal decision whether the overall objectives of the criminal law can be furthered by imposing punishment.13

Just as Justice Black turned away from the proposed constitutional rule, we spurn the proposed "common law" rule, not only because the recently created statutory scheme of dealing with narcotics addicts stands a reasonable chance of reaching the objectives of "deterrence, isolation, and treatment," but also because the particular nature of the problem of the heroin traffic makes certain policies necessary that should not be weakened by the creation of this defense. There is no compelling policy requiring us to intervene here.14

2. Furthermore, if such a judgment weighing and balancing conflicting public interests and policies is to be made, it should be made by Congress, which, as we explore more fully infra, has by its activity in this area demonstrated both that it possesses more adequate facilities to deal with the problems of narcotic addiction, and that we in the judiciary are somewhat circumscribed in our activity in this area.15

III. Appellant's Defense and the Eighth Amendment

To evaluate the proposed defense in light of the Eighth Amendment we review the case law, in particular, Robinson v. California (1962)16 and Powell v. Texas (1968).17 This review demonstrates that the case law simply does not support the position advanced by appellant.

In Robinson the Supreme Court was asked to determine the constitutionality of a state statute which, among other provisions, punished a person who was "addicted to the use of narcotics."18 The appellant in Robinson had been convicted of addiction, principally on evidence of "marks and . . . discoloration [which] were the result of the injection of hypodermic needles into the tissue into the vein that was not sterile [sic]."19

While the Court observed that there was a wide range of activities available to states in dealing with the problem presented by narcotics,20 the Court decided that this California statute was not within that range:

This statute, therefore, is not one which punishes a person for the use of narcotics, for their purchase, sale or possession, or for antisocial or disorderly behavior resulting from their administration. It is not a law which even purports to provide or require medical treatment. Rather, we deal with a statute which makes the "status" of narcotic addiction a criminal offense, for which the offender may be prosecuted "at any time before he reforms." California has said that a person can be continuously guilty of this offense, whether or not he has ever used or possessed any narcotics within the State, and whether or not he has been guilty of any antisocial behavior there.21

The Court concluded that just as it would be impermissible to punish a person because he was afflicted with mental disease, leprosy, or venereal disease, so would it be impermissible to punish for his affliction one suffering from the illness of narcotic addiction, since

[I]n the light of contemporary human knowledge, a law which made a criminal offense of such a disease would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.22

Thus the Court held that "a state law which imprisons a person thus afflicted [by addiction to narcotics] as a criminal, even though he has never touched any narcotic drug within the State or been guilty of any irregular behavior there, inflicts a cruel and unusual punishment in violation of the Fourteenth Amendment.23

There are two important possible holdings which were not made in Robinson, but which are urged by appellant here, ostensibly on the basis of Robinson. The points not decided in Robinson as appellant argues here are:

1. The language of the Court quoted immediately above presumably left it open for a state to punish the activities such as possession and use or "irregular behavior" connected with narcotics addiction, although the addiction standing alone may not be punished.

2. It is also important that the majority's opinion did not base the Eighth and Fourteenth Amendment rationale on the unconstitutionality of punishment for any "compulsion" or loss of "self-control" involved in narcotics addiction. Indeed, if anything it appears that the appellant in Robinson had not lost his self-control with respect to giving in to his craving for the drug. As Justice Clark put it in his dissent, which would have upheld the California statutory scheme, "It is no answer to suggest that we are dealing with an involuntary status and thus penal sanctions will be ineffective and unfair. The section at issue applies only to persons who use narcotics often or even daily but not to the point of losing self-control."24 Furthermore, the trial judge in Robinson, in his instructions to the jury, did not have his definition turn on any compulsion or loss of self-control:

The word "addicted" means, strongly disposed to some taste or practice or habituated, especially to drugs. In order to inquire as to whether a person is addicted to the use of narcotics is in effect an inquiry as to his habit in that regard. Does he use them habitually. To use them often or daily is, according to the ordinary acceptance of those words, to use them habitually.25

Standing alone, then, Robinson is no authority for the proposition that the Eighth Amendment prevents punishment of an addict for acts he is "compelled" to do by his addiction, since Robinson recognizes no compulsion in addiction. Robinson simply illustrates repugnance at the prospect of punishing one for his status as an addict.

In the case analysis it is important to keep the concept of loss of self-control separate from the definition of addiction. This is the approach taken in Robinson, so for the Supreme Court, at least, the judicial definition of addiction stops short of a loss of self-control, though it may recognize some compelling aspects of the craving for the drug. This distinction is illustrated in some of Mr. Justice Harlan's remarks made in his concurrence in Robinson:

[I]n this case the trial court's instructions permitted the jury to find the appellant guilty on no more proof than that he was present in California while he was addicted to narcotics. Since addiction alone cannot reasonably be thought to amount to more than a compelling propensity to use narcotics, the effect of this instruction was to authorize criminal punishment for a bare desire to commit a criminal act.26

In other words, addiction is the physical craving to have the drug, a craving which can arise from a number of different causes, not all of them voluntary or even self-induced.27 As Justice Harlan's remarks make clear, however, it is the craving which may not be punished under the Eighth Amendment, and not the acts which give in to that craving. Furthermore, while addiction may be a "compelling propensity to use narcotics," it is not necessarily an irresistible urge to have them.28 The failure in many minds to keep the concept of addiction separate from irresistible compulsion, or loss of self-control, has resulted in much confusion, as will be explored below.

The Eighth Amendment defense for chronic alcoholics advanced by some members of the Court in Powell v. Texas, that is, the interpretation that Robinson held that it was not criminal to give in to the irresistible compulsions of a "disease," weaves in and out of the Powell opinions, but there is definitely no Supreme Court holding to this effect.

1. Justice Marshall, writing for four members of the Court,29 distinguished public drunkenness from Robinson, since the acts amounting to this kind of public behavior were much more than the "mere status" for which punishment was prohibited in Robinson.30 Justice Marshall rejected the notion of the four dissenters31 that Robinson stood for "the 'simple' but 'subtle' principle that '[c]riminal penalties may not be inflicted upon a person for being in a condition he is powerless to change."'32 Justice Marshall noted that in the view of the dissenters appellant's public intoxication was "'occasioned by a compulsion symptomatic of the disease' of chronic alcoholism, and thus apparently, his behavior lacked the critical element of mens rea." Justice Marshall, in disassociating himself and his three brother Justices from this view, noted that Robinson did not deal with the question "whether certain conduct cannot constitutionally be punished because it is, in some sense 'involuntary' or 'occasioned by a compulsion."'33 He concluded simply that "criminal penalties may be inflicted only if the accused has committed some act, has engaged in some behavior, which society has an interest in preventing, or perhaps in historical common law terms, has committed some actus reus."34

2. Appellant's position seems to be that if a defendant is compelled to use narcotics due to a serious physical craving (addiction), but can acquire the narcotics with money obtained by legal means (such as relying on the labor of other members of his family), the court can find no free will on the part of the defendant, since he acts as a result of compulsion, not from choice. Indeed, so the argument goes, since the money used to buy drugs is procured through perfectly legal means, there is really no guilt involved, merely disease. Thus appellant argues that the acts resulting from addiction to narcotics must be treated in the manner that addiction to alcohol was considered in Powell.

Where the asserted analogy with Powell breaks down, however, is, first, that the acts in Powell were held to be punishable, as Justice White's separate opinion for the majority makes clear. Second, here the acquisition and possession of the addictive substance by Moore are illegal activities, whereas in Powell the "addict" induced his addictive state through legal means. Powell's violation was in actions taken later, which to four members of the Court were punishable without question, and which to Justice White were punishable so long as the acts had not been proved to be the product of an established irresistible compulsion. In Moore, however, the acquisition and possession of the addictive substance (narcotics) are themselves illegal, whether considered as initial acts causing addiction or acts resulting from addiction.

While we always start with where we are, or the present condition of the addict in this case, we cannot ignore how the defendant became an addict. The dissenters here dwell on established principles:

Thus criminal responsibility is assessed only when through "free will" a man elects to do evil, and if he is not a free agent, or is unable to choose or to act voluntarily, or to avoid the conduct which constitutes the crime, he is outside the postulate of the law of punishment.35

Moore could never put the needle in his arm the first and many succeeding times without an exercise of will.36 His illegal acquisition and possession are thus the direct product of a freely willed illegal act.

According to the appellant's thesis, an addict only has a choice as to the manner in which he obtains the funds (or the drugs) to support his habit; this neglects the choice that each addict makes at the start as to whether or not he is going to take narcotics and run the risk of becoming addicted to them. Although the narcotics user may soon through continued use acquire a compulsion to have the drug, and thus be said to have lost his self-control (insofar as he must take the drug regularly) due to a "disease," it is a disease which he has induced himself through a violation of the law. In contrast to the alcoholic Powell, the drug addict Moore has contracted a disease which virtually always37 commences with an illegal act.

3. As a final point with regard to Powell, we find the same concern we discussed under II, supra, voiced by Justice Black: "The rule of constitutional law urged upon us by appellant would have a revolutionary impact on the criminal law, and any possible limits proposed for the rule would be wholly illusory."38 We are wary of the multitude of acts which are now crimes and which might have to be excused if appellant's defense were accepted, since

If the original boundaries of Robinson are to be discarded, any new limits too would soon fall by the wayside and the Court would be forced to hold the States powerless to punish any conduct that could be shown to result from a "compulsion," in the complex, psychological meaning of that term.39

Passing on from Robinson and Powell, we come to the case on which much of the present appeal is based, Watson v. United States (1970).40 In Watson the appellant, a heroin addict, was convicted for violations of 21 U.S.C. Sec. 174, and 26 U.S.C. Sec. 4704(a), the Jones-Miller and Harrison Acts, which respectively forbid fraudulent importation and the purchase, sale, dispensation, or distribution of narcotic drugs not in the appropriately taxpaid stamped package. For all practical purposes, because of the particular evidentiary provisions of the two Acts, proof of mere possession of the narcotic is enough to convict under either, and so the crime is often spoken of as one for "possession" of narcotic drugs. This was really the crime for which appellant Watson was convicted, and although in appellant Moore's case there are powerful elements of trafficking (discussed under I, supra), he contends that he was guilty of the crime of possession, and of possession for his own use. Among the other arguments made in Watson, as here by appellant, was the proposition that after Robinson it is constitutionally impermissible to punish a narcotics addict for possession of narcotics which he has only for his own use.

While discussing this defense, this court in Watson believed that the record was not adequate properly to support such a defense, and the case was decided on another ground, i. e., that the two-prior-felony disqualifying provision of Title II of the Narcotic Addict Rehabilitation Act of 1966 unconstitutionally barred Watson from possible beneficial treatment under that Act.41 Judge McGowan's discussion in the court's opinion to the effect that "if Robinson's deployment of the Eighth Amendment as a barrier to California's making addiction a crime means anything, it must also mean in all logic that (1) Congress did not intend to expose the non-trafficking addict-possessor to criminal punishment, or (2) its effort to do so is as unavailing constitutionally as that of the California legislature"42 is therefore dicta. These dicta have been very persuasive, particularly in light of the explicit framework which Judge McGowan set forth for the raising of the defense,43 and it has occasionally been successfully used in the trial courts of the District.44 The case at bar, however, is the first time that we have been in the position to change these dicta into a holding, and to rule conclusively that Robinson represents a constitutional bar to conviction of a non-trafficking addict-possessor.

As made amply clear earlier, we believe Robinson supports no such determination. Any widening of the Eighth Amendm