Samson v. State

Lowe, J., delivered the opinion of the Court. Paul Samson was convicted in the Circuit Court for Kent County of distributing, and conspiracy to -distribute, a controlled dangerous substance of the “Schedule III” variety. The “substance,” identified as phendimetrazine, was not listed in the statute, Md. Code, Art. 27, Sec. 279 (c) as subject to the distribution proscription in Sec. 286 (a) (1). The jury was told by the State’s Attorney in opening statement that “The Secretary of Health has deemed it to be a dangerous ³²⁸ substance . . .”, however, the jury was not made privy to the State’s reasoning behind that theory.

At argument we were so enlightened, given our choice of two procedural possibilities. At the conclusion of opening statements, but before any witness was called, the State’s Attorney asked leave to approach the bench. He asked the judge “Can I at this point put that letter in evidence?” Little by little we are able to piece together what “that letter” was. Appellant objected but the judge admitted the letter over his objection. “Mr. Oneglia: Well, I will object formally in Court.

I would like a rule on it. I couldn’t find a case in my quick review on it. Judge Rasin: Well, you’ll have to really offer it. Are you seeking the opportunity to argue to the jury that it is not the law, because that is a legal matter.

I will have to instruct them on it. You can make the argument to me. It is not up to them to decide whether or not there is a law. I will permit you to go as far as to explain the law sets forth certain schedules, and also permits the Secretary to add certain substances and he has done that.

The Secretary has done that in this case, but whether or not he should have is not up to the jury to determine, as to whether that is the way the law should be enacted. That is strictly a legal matter. Mr. Oneglia: Well, I think the law is as it stands, but I can argue, §1 — I am not sure there may be some question as to whether the procedures followed were correct under the statute; §2 — the whole argument I made— Judge Rasin: No, everyone is presumed to know the law. Everyone is afforded the opportunity to know the law.

It is up to them to interpret the law, but not to determine whether the law was properly enacted or adopted, or whether the proper procedures have been followed. I don’t mean to say you don’t have a good point. You can do it before any Court, but not any jury. ³²⁹ Mr. Cooper: The question I am asking is whether the letter, which is actually the law, should be put in the record. Judge Rasin: Yes, I think it should.

You have to have something for the appellate court to see that this has been made part of the law by virtue of Dr. Solomon’s including it. You can offer it and Mr. Oneglia can always object to it.” At the conclusion of the bench conference, and again without a witness having been called the case resumed. “END OF BENCH CONFERENCE: Judge Rasin: Proceed, Mr. Cooper. Mr. Cooper: I would like to submit this as State’s Exhibit #1. Judge Rasin: Let it be marked.

Mr. Oneglia, you have seen it? The exhibit? Mr. Oneglia: Yes, I have, Your Honor. Judge Rasin: Do you object to it?

Mr. Oneglia: Yes, I do, Your Honor. Judge Rasin: Overrule the objection and it will be admitted into evidence. (Letter from Dr. Neil Solomon admitted over objection as State’s Exhibit #1.)” The letter 1 introduced was a mimeographed form letter, unsigned except for a certification by Dr. Solomon that “the above is a true and correct copy.” There was no testimony or other evidence to explain the effect — if any — of the form letter. Its admission for the purpose of showing “something for the appellate court” that phendimetrazine “has been made part of the law by virtue of Dr. Solomon’s 2 including it,” commenced with a commendable purpose but was based upon a faulty foundation.

Our own research convinced us that phendimetrazine was, at the time of the violation ³³⁰ charged, a controlled dangerous substance; however, we are not yet convinced that it assumed controlled status by the Maryland Department of Health route. To the contrary, the Attorney General admitted at argument that phendimetrazine had yet to appear in the Maryland Register. 3 As indicated, not only was appellant’s objection to the admission overruled, but he was prohibited from arguing “to the jury that it is not the law,” even though he expressly raised “some question as to whether the procedures followed were correct under the statute.” The issue was again raised at the conclusion of the case when appellant was denied the right to argue that “the Defendant did not have any knowledge that this was a schedule 3 non-narcotic drug.” Upon denying that request the court ruled: “Judge Rasin: Well, the Court in its comments already indicated that my ruling in that is that I will not permit you to argue that. Everyone is charged with knowledge of the law, and from a practical point of view I would think anyone trafficking in any type drug who is not a doctor is more or less on notice that he had better check. So I had no difficulty in finding what the law was at the time prohibiting distribution of this type of drug.

I will not permit you to argue that to the jury.” The schedules of proscribed drugs are subject to change by the Department of Health “by motion or on the petition of any interested party pursuant to the procedures of the Administrative Procedure Act, and after notice and hearing . ...” There are listed eight criteria for determination which the Department “shall” consider in deciding whether a substance should be added. After considering those factors “the Department shall make findings with respect thereto ³³¹ and shall issue an order controlling the substance if it finds that the substance has a potential for abuse.” Md. Code, Art. 27, Sec. 278 (a). 4 Additionally, for obvious reasons, the Department is admonished by subsection (d) to: “ ... update and republish a schedule on a semiannual basis for two years from July 1, 1970, and thereafter on an annual basis.” 5 Finally we note that unless the provisions of Md. Code, Art. 41, Sec. 9 are complied with “No rule or regulation hereafter made, promulgated or adopted is effective . . . .” That section provides in full that: “Prior to the adoption of any rule or regulation by an officer or department of the executive branch of the State of Maryland under any rulemaking power granted by the General Assembly of Maryland, the rule or regulation shall be submitted to the Attorney General of Maryland for approval as to its legality. Every officer, department, board, commission, bureau and similar agency of the State government other than those within the Legislative and Judiciary Departments who has power to make, promulgate, adopt or enforce rules and regulations shall file copies of them pursuant to the provisions of the State Document Law. No rule or regulation hereafter made, promulgated or adopted is effective until after compliance with this section.” ³³² Proof of compliance with these provisions would not seem overly difficult.* 123** 6 Pursuant to Cts.

Art., Sec. 10-204: “A copy of a public record, book, paper, or proceeding of any agency of the state or of any of its political subdivisions or of an agency of any political subdivision shall be received in evidence in any court if certified as a true copy by the custodian of the record, book, paper, or proceeding, and if otherwise admissible.” An updated or “republished schedule” certified as a true copy by the custodian of the republished schedule adopted pursuant to law, would be prima facie evidence of compliance with subsection (a) and Art. 41, Sec. 9 which, if unrebutted, would presume conformity with the formalities prescribed by those sections. The burden would thus be shifted to the defendant to rebut that prima facie conformity with testimony or certification of non-compliance from an appropriate departmental custodian. If either the State fails to meet its initial burden or if the defendant proves non-compliance, there is no regulatory law upon which the prosecution can proceed. Cf.

Md. Tobacco Grow. v. Md. Tobacco Auth., 267 Md. 20, 23-25 . The letter from Dr. Solomon to the specified parties in interest is not a “republished schedule” pursuant to Art. 27, Sec. 278 (d) showing changes made in conformity with Art. ³³³ 27, Sec. 278 (a), but rather notification from the Department of Health. That letter of notification is not prescribed by statute but presumably is an agency service to those persons particularly affected; however, it could not substitute for an annual updated republished schedule. The letter did indicate, however, the reason the Department had taken the action: “in order for the Maryland Controlled Dangerous Substances Act to conform with the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 . . . .” Such conformity relates to a second means of adding a substance to one of the schedules found in Art. 27, Sec. 278 (c). “(c) New substances controlled under federal law. — Any new substance which is designated as controlled under federal law shall be similarly controlled under this subheading unless the Department objects to such inclusion or rescheduling.

In such case the Department shall cause to be published and made public the reasons for such objection and shall afford all interested parties an opportunity to be heard. At the conclusion of such hearing, the Department shall publish and make public its decision, which shall be final. An appeal from a designation made pursuant to this section shall not stay the effect of such designation.” We find in 21 C.F.R. Sec. 1308.13 that phendimetrazine was added as a “new substance . . . designated as controlled under federal law.” By virtue thereof and through operation of Art. 27, Sec. 278 (c), distribution of phendimetrazine, at the time appellant was so charged, was a violation of the Controlled Dangerous Substance Act. Appellant’s complaint that: “The alleged controlled dangerous substance was not such substance within the meaning of the law at the time of the alleged sale in this case, nor was there legally sufficient proof adduced at the trial to show that the substance, phendimetrazine, was in ³³⁴ fact, at the time of the alleged sale a controlled and dangerous substance within the meaning of the law; and Appellant was denied due process as a result of being tried and convicted for allegedly distributing a substance which at the time of the alleged sale was not listed in the schedule published in accord with constitutional requirements.”, is without merit.

That there was no “legally sufficient proof adduced at the trial to show that the substance, phendimetrazine, was in fact, at the time of the alleged sale a controlled and dangerous substance . .is no defense, if in fact the substance was controlled as we have found. It is of no consequence that the wrong path was trod by the trial judge in arriving at a proper destination. The truth was in pectore judicis. Finally, the publication that is required, Sec. 278 (d), is directive only and although its failure is an abrogation of the Department’s responsibility, its absence does not erase the law.

Just as the sale of phendimetrazine subjected appellant to federal prosecution, through Sec. 278 (c) that same act subjected him to State prosecution. His ignorance of the law does not give him immunity from punishment for crime. Hopkins v. State, 193 Md. 489, 498-499 . Judges, lawyers and laymen alike are all presumed to know the law regardless of conscious knowledge or lack thereof, and are presumed to intend the necessary and legitimate consequences of their actions in its light.

Grumbine v. State, 60 Md. 355, 356 . Without that presumption one could escape the consequence of the law merely by denying prior knowledge of its existence and one’s ignorance would become paramount to the law. Cf. Hopkins, supra. “[IJgnorance of the law, which