Re: RICO and remailers (brief treatment, if long)

At 07:30 PM 3/13/96 -0500, Black Unicorn wrote:
>0
>Several people expressed interest in a small treatment of seizure law 
>jurisprudence, and the Bennis case (seizure of an automobile used for 
>soliciting prostitution was upheld even where one of the owners knew 
>nothing about its use for a crime and which Mr. Bell has relied on 
>fairly heavily in pointing out that the Supreme Court has its "head 
>up its ass.")

"Relied on"?  Hell no!  Not when I get the following text, from an anonymous 
source.  

Begin quotation:


So he wants a cite of Supreme Court decisions from you bearing on  
legislative history & congressional intent, does he?

I've attatched the relevant syllabus <summary> which is from the  
Supreme Court reporter & carries no legal weight, along with the  
UNANIMOUS decision in Neal written by Kennedy. It's an acid case, the  
Supreme court having ruled a long time ago in Chapmann that the ENTIRE  
weight of of LSD AND blotter paper, which usually contains 100mcg or  
0.1mg of actual LSD-25 per dose, vs. the enormous weight of the paper.  
This entire weight of basically all paper has been used to give 21 year  
old 1st offenders 10 YEARS, which under current Federal Rules works out  
to about 8.5 years FLAT time in the joint.  The original  
absurdity was challenged in Chapman but the SC blindly stuck to it's  
own reading of "mixture or substance", blindly ignoring reality &  
Congressional intent that "cuts" of drugs such as heroin or cocaine  
being an attempt to increase the amount sold & therefore profit, should  
be punished, while the LSD paper was merely a way to transport &  
distribute it. As far as congressional intent goes, Joseph Biden has  
said that as chairman of the senate judiciary committee, they gave  
little thought to LSD but they definitely did NOT mean weigh the whole  
blotter paper in handing out nickels & dimes. Now the US Sentencing  
Commission has changed the guidelines by changing the way the dosage is  
calculated to something reasonable, the SC refuses to make the change  
retroactive to help a lot of people. Note where Kennedy basically says  
that if Congress passees laws that are poorly worded & subject to  
create great unfairness in sentences, the SC, once they've made a  
stupid decision in interpretation will stick to it no matter how unfair  
it is in order to make congress write laws that are linguistically  
intelligible. This would be fine if those on the sharp end of them were  
congressmen. The more Supreme Cocksucker decisions I read like this,  
the better BOTH your big ideas sound.

This & all recent other decisions of the 9 in-Justices are available at  
the below address. 



http://spoke.law.cornell.edu:8001/supct/opinionlist.1995.html

Syllabus:
  
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued. 
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader. 
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NEAL v. UNITED STATES
certiorari to the united states court of appeals for the seventh circuit
No. 94-9088.   Argued December 4, 1995-Decided January 22, 1996

When the District Court first sentenced petitioner Neal on two plea-
 bargained convictions involving possession of LSD with intent to
 distribute, the amount of LSD sold by a drug trafficker was deter-
 mined, under both the federal statute directing minimum sentences
 and the United States Sentencing Commission's Guidelines Manual,
 by the whole weight of the blotter paper or other carrier medium
 containing the drug.  Because the combined weight of the blotter
 paper and LSD actually sold by Neal was 109.51 grams, the court
 ruled, among other things, that he was subject to 21 U. S. C.
 841(b)(1)(A)(v), which imposes a 10-year mandatory minimum sen-
 tence on anyone convicted of trafficking in more than 10 grams of
 ``a mixture or substance containing a detectable amount'' of LSD. 
 After the Commission revised the Guidelines' calculation method by
 instructing courts to give each dose of LSD on a carrier medium a
 constructive or presumed weight, Neal filed a motion to modify his
 sentence, contending that the weight of the LSD attributable to him
 under the amended Guidelines was only 4.58 grams, well short of
 841(b)(1)(A)(v)'s 10-gram requirement, and that the Guidelines'
 presumptive-weight method controlled the mandatory minimum
 calculation.  The District Court followed Chapman v. United States,
 500 U. S. 453, 468, in holding, inter alia, that the actual weight of
 the blotter paper, with its absorbed LSD, was determinative of
 whether Neal crossed the 10-gram threshold and that the 10-year
 mandatory minimum sentence still applied to him notwithstanding
 the Guidelines.  In affirming, the en banc Seventh Circuit agreed
 with the District Court that a dual system now prevails in calculat-
 ing LSD weights in cases like this.
Held:  Section 841(b)(1) directs a sentencing court to take into account
 the actual weight of the blotter paper with its absorbed LSD, even
 though the Sentencing Guidelines require a different method of
 calculating the weight of an LSD mixture or substance.  The Court
 rejects petitioner's contentions that the revised Guidelines are
 entitled to deference as a construction of 841(b)(1) and that those
 Guidelines require reconsideration of the method used to determine
 statutory minimum sentences.  While the Commission's expertise
 and the Guidelines' design may be of potential weight and relevance
 in other contexts, the Commission's choice of an alternative method-
 ology for weighing LSD does not alter Chapman's interpretation of
 the statute.  In any event, stare decisis requires that the Court
 adhere to Chapman in the absence of intervening statutory changes
 casting doubt on the case's interpretation.  It is doubtful that the
 Commission intended the Guidelines to displace Chapman's actual-
 weight method for statutory minimum sentences, since the Commis-
 sion's authoritative Guidelines commentary indicates that the new
 method is not an interpretation of the statute, but an independent
 calculation, and suggests that the statute controls if it conflicts with
 the Guidelines.  Moreover, the Commission's dose-based method
 cannot be squared with Chapman.  In these circumstances, this
 Court need not decide what, if any, deference is owed the Commis-
 sion in order to reject its contrary interpretation.  Once the Court
 has determined a statute's meaning, it adheres to its ruling under
 stare decisis and assesses an agency's later interpretation of the
 statute against that settled law.  It is the responsibility of Congress,
 not this Court, to change statutes that are thought to be unwise or
 unfair.  Pp. 4-12. 46 F. 3d 1405, affirmed.
 Kennedy, J., delivered the opinion for a unanimous Court.


end of anonymous quotation.  JB.

My commentary continues below: JB.

Note the sentence above,

"It is the responsibility of Congress, not this Court, to change statutes 
that are thought to be unwise or unfair."  

As far as I am aware, there is no _legal_ mechanism, short of impeachment 
(but how practical is that?), to remove a sitting SC justice, no matter how 
damaging his effect on the country by his decisions.  Thus, I propose 
re-writing the above sentence a bit:


"It is the responsibility of the citizenry, not Congress, to 'change' 
Supreme Court Justices that are thought to be unwise or unfair."

Since that change can be accomplished if that 'Justice' dies or becomes 
disabled, (or retires, perhaps because he's in fear for his life) I think 
the answer to boneheaded decisions like the Bennis one is obvious.

Jim Bell
jimbell@pacifier.com

You know, the more I read, the more I understand why the United States is 
a declining power.  The education in this country must really be slipping.

On Thu, 14 Mar 1996, jim bell wrote:

> Begin quotation:
> 
> 
> So he wants a cite of Supreme Court decisions from you bearing on  
> legislative history & congressional intent, does he?

[...]

> to about 8.5 years FLAT time in the joint.  The original  
> absurdity was challenged in Chapman but the SC blindly stuck to it's  
> own reading of "mixture or substance", blindly ignoring reality &  
> Congressional intent that "cuts" of drugs such as heroin or cocaine  
> being an attempt to increase the amount sold & therefore profit, should  
> be punished, while the LSD paper was merely a way to transport &  
> distribute it. As far as congressional intent goes, Joseph Biden has  
> said that as chairman of the senate judiciary committee, they gave  
> little thought to LSD but they definitely did NOT mean weigh the whole  
> blotter paper in handing out nickels & dimes.

Who cares what the chairman of the committee who forwarded the bill 
thought?  He is but one member who voted or declined to vote for the 
bill.

The view that he has any more authority than any other member who 
supported the bill is a silly one.  Indeed, he may have had LSD out of 
mind when he wrote the bill, but unless you poll every member of congress 
as to their understanding of the bill, this means little if anything at all.

If a bill passes that says "All discharging of firearms within the 
District of Columbia is illegal."  Who cares if the chairman of the 
judiciary says (after the fact incidently) that he didn't think of 
handguns when he wrote the bill.  Obviously congress has passed an 
ambigious statute.  They could very easily have clarified the statute and 
applied the correction retroactively.  This they did not do, (despite the 
fact that they have often done so before, and that the court often 
invites congress to revisit an issue and make a correction, and congress 
often does).

> Now the US Sentencing  
> Commission has changed the guidelines by changing the way the dosage is  
> calculated to something reasonable, the SC refuses to make the change  
> retroactive to help a lot of people.

You mean, help a lot of convicted drug felons.  And even if they are 
deserving of help (I personally could care if people use drugs as long as 
they don't operate heavy machinery in public areas thereafter) where is 
the congress leaping to the rescue and writing an amendment to apply a 
corrective act retroactively?  (Which, incidently, is arguably beyond the 
power of the supreme court to do).  One might also note that the district 
court and the circut court came to the same conclusion in reading the 
intent of the statute.  You think those judges had their heads up their 
asses too?  You're talking now about 15 people who all came to the same 
conclusion.  Who's wrong?  These Harvard, Yale, Columbia, Georgetown and 
Stanford educated legal professionals, or you?

> Note where Kennedy basically says  
> that if Congress passees laws that are poorly worded & subject to  
> create great unfairness in sentences, the SC, once they've made a  
> stupid decision in interpretation will stick to it no matter how unfair  
> it is in order to make congress write laws that are linguistically  
> intelligible.

And you think that instead we should have two legislative branches second 
guessing one another?  What the hell is the law supposed to be if 
congress can't write it properly?  And if the manner of its application 
offends congress so much why has it not been corrected retroactively?  
Kennedy in this respect is acting as one of the more rational justices.  It 
is the activist justices that go crazy and stretch the law beyond the 
bounds of its intent.

Sure, it's easy enough to appeal to the libertarian in everyone by citing 
a supposedly silly result in a drug case, but you are fighting with smoke 
and mirrors here.  The real issue is one of seperation of powers.

It never ceases to amaze me how smart "commentators" like this think they 
are when they makes grand denouncements of the system.  It never ceases 
to amaze me that almost every single one of these "commentators" knows so 
little about the way the system really works that it's a wonder they 
passed the constitution test in 8th grade.  (Was it required when you 
were in school?  Probably not).

The more they talk, the more they prove my point.

A little knowledge is a dangerous thing.

A little legal knowledge is lethal.

> This would be fine if those on the sharp end of them were  
> congressmen. The more Supreme Cocksucker decisions I read like this,  
> the better BOTH your big ideas sound.

So move to a civil law jurisdiction.

---
My prefered and soon to be permanent e-mail address: unicorn@schloss.li
"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
00B9289C28DC0E55  E16D5378B81E1C96 - Finger for Current Key Information

On Thu, 14 Mar 1996, jim bell wrote:

> At 07:30 PM 3/13/96 -0500, Black Unicorn wrote:
> >0
> >Several people expressed interest in a small treatment of seizure law 
> >jurisprudence, and the Bennis case (seizure of an automobile used for 
> >soliciting prostitution was upheld even where one of the owners knew 
> >nothing about its use for a crime and which Mr. Bell has relied on 
> >fairly heavily in pointing out that the Supreme Court has its "head 
> >up its ass.")
> 
> "Relied on"?  Hell no!  Not when I get the following text, from an anonymous 
> source.  

Uh, I'm not sure what this sentence means.

> Begin quotation:
> 
> 
> So he wants a cite of Supreme Court decisions from you bearing on  
> legislative history & congressional intent, does he?

When it can be directly applied to your opinion that the Bennis case has 
anything to do with remailers, sure.

> 
> I've attatched the relevant syllabus <summary> which is from the  
> Supreme Court reporter & carries no legal weight, along with the  
> UNANIMOUS decision in Neal written by Kennedy.

[Whining about how a supreme court decision upholding the use of acid 
measurements including the weight of blotter paper as a guide to 
sentencing was really unfair deleted.]

> congressmen. The more Supreme Cocksucker decisions I read like this,  
> the better BOTH your big ideas sound.

Actually, the decision was in line with a long history of precident.  
That fact that you personally don't like the result has little to do with 
the legitimacy of the decision, or its fairness under law and the 
constitution.
 
> This & all recent other decisions of the 9 in-Justices are available at  
> the below address. 
> http://spoke.law.cornell.edu:8001/supct/opinionlist.1995.html
> 
> Syllabus:

> SUPREME COURT OF THE UNITED STATES
> 
> Syllabus
> 
> NEAL v. UNITED STATES
> certiorari to the united states court of appeals for the seventh circuit
> No. 94-9088.   Argued December 4, 1995-Decided January 22, 1996

[...]

> My commentary continues below: JB.
> 
> Note the sentence above,
> 
> "It is the responsibility of Congress, not this Court, to change statutes 
> that are thought to be unwise or unfair."  

Precisely.  This is called the seperation of powers.  It is the 
responsibility of the judicary to apply and intrepret the law, not make it.

> As far as I am aware, there is no _legal_ mechanism, short of impeachment 
> (but how practical is that?), to remove a sitting SC justice, no matter how 
> damaging his effect on the country by his decisions.  Thus, I propose 
> re-writing the above sentence a bit:

Actually, if a decision is so damaging, congress is always free to change 
it.  The major whine you and your anonymous friend have [i.e. that the 
Supreme court refused to apply the change in sentencing measurement of 
weight for LSD convictions] is entirely out of place.  If you took the 
time to look at the retroactivity issue, you would know that it was not 
applied retroactively because congress did not indicate that it should 
have been, (which congress was quite free to do, and has done before).  
Retroactivity in relation to a change in law by the legislature is NOT 
within the ambit of the court.  Congress simply refused to apply the 
sentencing changes retroactively.  If the court had done so, it would be 
making law.  This is not the function of the court.

Further, what the hell does any of this have to do with your former 
moronic claim that the Bennis case impacted remailers?  The claim that 
this is a statuatory construction case is rather far fetched.  It's a 
basic seperation of powers case, and it was decided correctly.

> "It is the responsibility of the citizenry, not Congress, to 'change' 
> Supreme Court Justices that are thought to be unwise or unfair."

Unfortunately, subjecting the supreme court to the short term whims of 
political fad would be devestating.  Making supreme court justices into 
elected officials is about the stupidist thing I've ever heard.  I won't 
even go into the kind of decisions you might get if this horridly 
reckless idea were implemented.

> 
> Since that change can be accomplished if that 'Justice' dies or becomes 
> disabled, (or retires, perhaps because he's in fear for his life) I think 
> the answer to boneheaded decisions like the Bennis one is obvious.
>
I think you need to crawl back under the rock from whence you came.

Really you and your anonymous friend have said nothing.  You don't like a 
pair of supreme court decisions, the basic premises and reasonings of which 
you couldn't recite if someone held a gun to your head and insisted.

I suggest you try and break the ego-centric pre-school mentality you 
have.  An eternity with satan himself and all of his devilish 
instruments of torture would be a walk in the park compared to five 
minutes in a dictatorship under you and anonymous.

> Jim Bell
> jimbell@pacifier.com
          ^^^^^^^^

Like I said.  Pre-school.

---
My prefered and soon to be permanent e-mail address: unicorn@schloss.li
"In fact, had Bancroft not existed,       potestas scientiae in usu est
Franklin might have had to invent him."    in nihilum nil posse reverti
00B9289C28DC0E55  E16D5378B81E1C96 - Finger for Current Key Information