Supreme Court Preview: LSD Sentencing, Innocent Owner Forfeiture, Liquor Advertising Scheduled in Current Term

IN THE COURTS November 1995

The new Supreme Court term started on October 2, and there a number of important drug policy cases on the docket.

44 LiquorMart, Inc. v. Rhode Island, No. 94-1140, 39 F.3d 5 (1st Cir. 1994). Is Rhode Island's ban on advertising of alcoholic beverage prices in newspapers and billboards a violation of the First Amendment right to freedom of speech? In Central Hudson Gas & Electric Corp. v. New York Public Service Commission, 447 U.S. 557 (1980), the court ruled on the conditions under which commercial speech can be regulated. The court has previously ruled that states cannot prohibit drug price advertising (Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1975)), and that the federal government cannot ban alcohol companies from putting alcohol content on packaging (Rubin v. Coors Brewing Co., 115 S.Ct. 1585 (1995)); see David G. Savage, "The Supreme Court Goes Back to Work," ABA Journal, October 1995, p. 62-65; see also, story below on Baltimore billboard ban upheld by 4th Circuit).

U.S. v. Neal, No. 94-1773, 46 F.3d 1405 (7th Cir. 1995). Should the U.S. Sentencing Commission Amendment 488 about LSD carrier medium weight apply to determinations of mandatory minimums? Neal applied for resentencing after the Commission's 0.4 mg/dose sentencing scheme went into effect. He had been sentenced according to the total weight of LSD and the carrier medium. The Seventh Circuit Court of Appeals ruled that it could not apply the 0.4 mg/dose scheme to calculating Neal's sentence because the total weight scheme was provided in the mandatory minimum statutes and upheld in the U.S. Supreme Court case Chapman v. U.S., 500 U.S. 453 (1991) ("Supreme Court Agrees to Hear LSD Carrier Medium Case," NewsBriefs, September 1995. Cert was granted in a very similar case examining the same issue of the application of Amendment 488, U.S. v. Muschik, 49 F.3d 512, 56 CrL 1520 (1995), after Neal (see "Second Circuit Rules LSD 0.4 mg/dose Formula Inapplicable to Mandatory Sentencing"). Families Against Mandatory Minimums (FAMM) and the National Association of Criminal Defense Lawyers (NACDL) are joining in submitting an amicus in this case.).

Libretti v. U.S., No. 94-7427, 56 CrL 1105, 38 F.3d 523 (10th Cir. 1994). Do defendants who plead guilty and forfeit their assets have the right to a jury trial about the amount of the forfeited assets? Libretti argued that not all of his assets should have been seized because they were not all tied to drug transactions. The Tenth Circuit Court of Appeals denied his appeal for a trial on the amount of the forfeiture (see "Supreme Court to Hear Another Forfeiture Case Next Fall," NewsBriefs, April 1995).

Bennis v. U.S., 57 CrL 3066, see Michigan Ex Rel. Wayne County v. Bennis, 527 N.W.2d 483 (Mich. 1994). Does an "innocent owner" (in this case an "innocent co-owner") have a stake in assets that were seized when one of the owners participated in illegal activity with the property? John Bennis' car was seized after he was convicted of participating in an illegal sex act with a prostitute in the car. Bennis' wife Tina co-owned the car. At a forfeiture hearing, she denied any knowledge of her husband's illegal activity, and therefore claimed to qualify as an innocent owner. The Michigan Supreme Court ruled that she should not have a stake in the car (see "U.S. Supreme Court Agrees to Hear 'Innocent Owner' Forfeiture Case, NewsBriefs, September 1995).

Armstrong v. U.S., Nos. 93-50031 and 93-50057, 57 CrL 3138, 48 F.3d 1508 (9th Cir. (en banc) 1995). When defendants are arguing a selective prosecution defense in a crack cocaine case, can the government be forced to provide records on the race and number of defendants charged through their office and the conditions by which the government decides if defendants are charged on the federal rather than the state level? The Ninth Circuit en banc ruled that the standard of proof to allow discovery in a selective prosecution case should be very low, and that the government has to comply with defendants' requests for such information. The court threw out charges against the defendants after the government refused to comply (see "Court Makes Strong Statement About Racial Bias/Crack Cocaine Cases," NewsBriefs, March 1995. The National Drug Strategy Network has prepared a summary of this case. If you would like a copy, contact the Network office.)

Janus Industries v. U.S., Nos. 94-1074, 94-1075, 94-1113, and 94-1114, 57 CrL 3105, 48 F.3d 1548 (10th Cir. 1995). Is the definition of "drug paraphernalia" too vague for listing in a search warrant? Does Congress have the authority to prohibit sales of drug paraphernalia without showing connection between intrastate sales and interstate commerce? (See next story for full description of this case.)