APPEAL FROM THE JUDGMENTS AND SENTENCES OF THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 77-62-1, 2 and 3)
Before Aldisert and Higginbotham, Circuit Judges, and Stern, District Judge*fn* .
Defendants Picklesimer, Volino and Buckley appeal their convictions for conspiracy to possess with intent to distribute phencyclidine (PSP), a drug enumerated in Schedule III of the Controlled Substances Act of 1970, 21 U.S.C. §§ 801 Et seq. (1972), in violation of 21 U.S.C. § 846, and for possession of this same drug with intent to distribute, in violation of 21 U.S.C. § 841. All three defendants urge this Court to construe Schedule III of 21 U.S.C. § 812 to require the government to prove possession of a sufficient quantity of the drug to have a depressant effect upon the central nervous system. For reasons we discuss at greater length, we decline to adopt defendants' construction of the statute as contrary to the clear intention of Congress, and we join the Courts of Appeals for the Fifth and the Seventh Circuits in holding that any quantity of the substances enumerated in Schedule III is proscribed by the statute.
Defendants raise other challenges to their convictions. All three defendants challenge the admission into evidence of testimony that a gun was found in the vehicle which transported the PSP tablets. Defendants Buckley and Volino also claim that the evidence was insufficient to support their conviction for constructive possession of the PSP tablets, and they claim that the district court improperly denied their motions to dismiss the indictment based on the pendency of state firearms charges against them. We find these contentions to be without merit and we affirm defendants' convictions in all respects.
Commencing October 17, 1977, defendants Picklesimer, Volino and Buckley, separately represented and having waived their right to trial by jury, were tried before the Honorable William W. Knox. The facts as they emerged at trial are as follows.
On the evening of January 23, 1977, Officer Edward Williams of the Drug Enforcement Joint Narcotics Task Force was taken by an informant to the home of Eric Picklesimer (Tr. 7-8) where Picklesimer furnished him samples of marijuana and PSP. (Tr. 9-12). The following day, the informant arranged for Williams to purchase from Picklesimer 50,000 tablets of PSP for $25,000. The purchase was scheduled to take place that evening at the parking lot of Traveler's Paradise Bar on Route 30 in Finley Township. (Tr. 12-13).
Surveillance having been pre-arranged, Williams and the informant went to the parking lot as planned. Picklesimer arrived several minutes later in a red Dodge. He entered Williams' vehicle, demanded the money, and told Williams that the "stuff" would arrive shortly in another vehicle. Several minutes later Volino and Buckley drove up in a van. Picklesimer again demanded the money and Williams went to the trunk of his car. (Tr. 15-17).
This was the signal for the surveillance agents. Detective Duffy and Sergeant Miles approached the van on foot. Volino attempted to flee, but Detective Sharpie and Agent Sorace blocked his van with their car. (Tr. 29-30). At this point, Buckley, who was seated on the passenger side of the van, reached toward his feet. When the officers finally entered the van, they discovered a .45 caliber, fully loaded, on the floor where Buckley had been seated; a loaded .38 caliber was found on the floor by Volino's seat. When Buckley was searched, the police found extra clips for his gun in Buckley's shirt pocket. (Tr. 30-38). In the rear of the van, behind the driver's seat, the police found a total of 59,000 tablets of a drug, later identified as PSP. (Tr. 38-39; 52). Defendants were apprehended and arrested.
At the time of their arrest, Buckley and Volino were also charged with possession of firearms and drugs in violation of the laws of Pennsylvania. One week later both of these charges were dismissed. However, Following the federal drug indictment, the state authorities revived the firearms, but not the drug, charges. (Mem. Order Denying Motion to Dismiss). Buckley and Volino moved pre-trial to dismiss the indictment based on the pendency of state firearms charges arising out of the same occurrence. The motion was denied.
Judge Knox found all three defendants guilty on both counts. Volino and Buckley were sentenced concurrently on both counts to three years followed by a special parole term of three years. Picklesimer received concurrent sentences of two years followed by a special parole term of two years.
Defendants raise an interesting interpretation of the Controlled Substances Act of 1970, 21 U.S.C. §§ 801, Et seq.*fn1 They claim that the substances enumerated in Schedule III of the Act, 21 U.S.C. § 812, are not proscribed unless they are possessed in sufficient quantity to have a depressant effect on the central nervous system.*fn2 In support of this interpretation, defendants argue that the phrase "having a depressant effect on the central nervous system" modifies the phrase "any quantity":
(b) Unless specifically excepted, or unless listed in another schedule, any material, compound, mixture, or preparation which contains Any quantity of the following substances Having a ...