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UNITED STATES v. TOUBY

March 17, 1989

UNITED STATES OF AMERICA
v.
DANIEL TOUBY and LYRISSA TOUBY, Defendants



The opinion of the court was delivered by: ACKERMAN

 On March 10, 1989, I heard a battery of pretrial motions regarding certain discovery matters, most of which I disposed of in my March 14, 1989 order upon the parties' agreement and pursuant to certain constitutional doctrines and the Federal Rules of Criminal Procedure.

 However, three matters remain outstanding: (1) the defendants' motion to exclude certain evidence pursuant to Federal Rule of Criminal Procedure 403 and 404(b); (2) the defendants' motion to dismiss the indictment; and(3) the defendants' motion to suppress certain evidence garnered in searches of the defendants' residence. As I indicated at the argument on March 10, 1989, Federal Rules of Evidence 404(b)/403 determinations are more properly evaluated during trial where probative value and purpose fully crystallize, rather than now, a more formative time in the litigation. Hence, I am left today to decide the defendants' motion to dismiss the indictment and to suppress evidence. Let me first turn to the motion to dismiss the indictment.

 MOTION TO DISMISS

 The defendants challenge the constitutionality of the no-judicial review provision under 21 U.S.C. § 811(h)(6) and the constitutionality of Congress' delegation of power under 21 U.S.C. § 811(h) to the Attorney General to temporarily designate substances in the rubric of federal criminal drug abuse and control laws, substances such as 4-methylaminorex. The defendants also challenge the Attorney General's subdelegation of this power to temporarily schedule 4-methylaminorex to the Administrator of the Drug Enforcement Agency (DEA) as beyond the power that Congress allowed for subdelegation of the Attorney General's authority to subordinates. Therefore, the defendants assert that the DEA's temporary scheduling of 4-methylaminorex as a Schedule I substance subject to certain prohibitions and penalties under federal anti-drug laws is invalid. The defendants thus conclude that since their indictments are based on a temporary scheduling of a substance made contrary to law, I must dismiss the indictment against them. The government contests these arguments.

 Some background is necessary regarding permanent and temporary scheduling of substances, before I can properly assess the defendants' request for dismissal of the indictment.

 In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control Act, 84 Stat. 1236, which is now incorporated into the Controlled Substances Act ("CSA"), codified, as amended, at 21 U.S.C. § 801-904. In the CSA, Congress established that certain "controlled substances" would be placed in different "schedules" with penalties for violations of the law varying according to the scheduling of the substance. For instance, a Schedule I substance is one that has a high potential for abuse, has no accepted medical use in treatment in the United States, and there is a lack of accepted safety for use of the substance under medical supervision. A Schedule V substance has a low potential for abuse relative to scheduled substances I through IV, has a currently accepted medical use in treatment in the United States and abuse may lead to limited dependence relative to the drugs on Schedules I through IV. See 21 U.S.C. § 812. The penalty for a violation involving a Schedule I substance is greater than the penalty for a violation involving a Schedule V substance. See, e.g., 21 U.S.C. § 841.

 (1) Its actual or relative potential for abuse.

 (2) Scientific evidence of its pharmacological effect, if known.

 (3) The state of current scientific knowledge regarding the drug or other substance.

 (4) Its history and current pattern of abuse.

 (5) The scope, duration, and significance of abuse.

 (6) What, if any, risk there is to the public health.

 (7) Its physchic or physiological dependence liability.

 (8) Whether the substance is an immediate precursor of a substance already controlled under this subchapter. Id. § 811(c).

 Under § 811(b), the Attorney General must also obtain a "scientific and medical" evaluation of the substance from the Secretary of Health and Human Services. If the Secretary recommends that the Attorney General should not schedule the substance, then the Attorney General must adhere to that recommendation. Id. § 812(b). Moreover, the Attorney General's rulemaking as to the permanent scheduling decision of any particular substance must conform to the Administrative Procedure Act (APA), codified at 5 U.S.C. §§ 551-559, making the rule on a record and with notice and opportunity for a hearing to interested parties. See 21 U.S.C. § 811(a).

 In 1973, pursuant to 21 U.S.C. § 871(a): ("The Attorney General may delegate any of his functions under this subchapter to any officer or employee of the Department of Justice.") The Attorney General subdelegated performance of his functions delegated to him by Congress under the CSA to the DEA administrator. See 28 C.F.R. § 0.100(b).

 With the passage of time, it became obvious to Congress that the mechanism which it provided for permanent scheduling by the Attorney General, even when given a "high priority" was taking six months to a year. S. Rep. No. 225, 98th Cong., 2d Sess. 263, reprinted in 1984 U.S. Code Cong. & Admin. News 3182, 3446. Congress reckoned that: "during the interim between identification of a drug that presents a major abuse problem and the eventual scheduling of the substance, enforcement actions against traffickers are severely limited and a serious health problem may arise." Id. at 264, represented in 1984 U.S. Code Cong. & Admin. News at 3446.

 Mindful of this problem, in 1984 Congress amended the CSA to permit the Attorney General to schedule substances, on a temporary basis, to "avoid an imminent hazard to the public safety." 21 U.S.C. § 811(h)(1). Specifically, the relevant part of the amendment provided that:

 (1) If the Attorney General finds that the scheduling of a substance in schedule I on a temporary basis is necessary to avoid an imminent hazard to the public safety, he may, by order and without regard to the requirements of subsection (b) of this section relating to the Secretary of Health and Human Services, schedule such substance in schedule I if the substance is not listed in any other schedule in section 812 of this title or if no exemption or approval is in effect for the substance under section 355 of this title. Such an order may not be issued before the expiration of thirty days from --

 (A) The date of the publication by the Attorney General of a notice in the Federal Register of the intention to issue such order and the grounds upon which such order is to be issued, and

 (B) the date the Attorney General has transmitted the notice required by paragraph (4).

 (3) When issuing an order under paragraph (1), the Attorney General shall be required to consider, with respect to the finding of an imminent hazard to the public safety, only those factors set forth in paragraphs (4), (5), and (6) of subsection (c) of this section, including actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution.

 (4) The Attorney General shall transmit notice of an order proposed to be issued under paragraph (1) to the Secretary of Health and Human Services. In issuing an order under paragraph (1), the Attorney General shall take into consideration any comments submitted by the Secretary in response to a notice transmitted pursuant to this paragraph.

 (5) An order issued under paragraph (1) with respect to a substance shall be vacated upon the conclusion of a subsequent rulemaking proceeding initiated under subsection (a) of this section with respect to such substance.

 (6) An order issued under paragraph (1) is not subject to judicial review.

 28 U.S.C. § 811(h).

 The Senate report supporting the amendment differentiated the temporary scheduling provision from the permanent one as follows:

 Under new subsection (h), the Attorney General would be permitted to control a substance on a temporary basis without meeting the prior notice and hearing requirements of 21 U.S.C. § 881(b), if such action was "necessary to avoid an imminent hazard to the public safety." In issuing a temporary ruling under this new provision, the Attorney General would be required to consider only those factors set out in 21 U.S.C. § 811(c)(4), (5) and (6) which relate to the history, current pattern, scope, duration and significance of abuse of the substance, and the risk it poses to the public health. New ...


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