Warsame v. State

Citation338 Md. 513,659 A.2d 1271
Decision Date01 September 1994
Docket NumberNo. 75,75
PartiesAbraham Arah WARSAME v. STATE of Maryland. ,
CourtCourt of Appeals of Maryland

William Lyle Poe, Jr., Columbia, for appellant.

Annabelle L. Lisic, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for appellee.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

BELL, Judge.

The issue this appeal presents is whether a substance controlled in Maryland by virtue of Maryland Code (1957, 1992 Repl.Vol., 1994 Cum.Supp.), Art. 27, § 278(c) 1, remains controlled despite the fact that the substance has never been listed in § 279, the Maryland schedule of controlled dangerous substances. The Circuit Court for Anne Arundel County found that it did. Accordingly, the court found Abraham Arah Warsame, the appellant, guilty of possession of Cathine, 2 a schedule IV non narcotic controlled dangerous substance, with intent to distribute, suspended a term of imprisonment, and placed him on a period of probation. After the appellant had noted a timely appeal to the Court of Special Appeals, but before that court had considered it, we issued a writ of certiorari on our own motion.

I A.

The facts, about which there are no disputes, are simple and straightforward. The appellant was on a flight from London, England to Baltimore. Upon deplaning and arriving at customs, the appellant's luggage was searched, with his consent. Discovered in his luggage were 101 bundles, or 47 lbs. of Khat, a large leafy plant, indigenous to certain parts of Africa. Upon subsequent chemical analysis, the plant was determined to contain Cathine. That substance had been added to Schedule IV of the Federal Schedule of Controlled Substances in 1988. See 53 Fed.Reg. 17459 (1988). The appellant was subsequently charged with and, having waived his right to jury trial, tried by the court for, possession with intent to distribute and possession of Cathine, a controlled dangerous substance. As we have seen, the appellant was convicted of the former charge.

B.

The thrust of the appellant's argument is that the requirement of § 278(d) 3 that the Department update and republish the controlled dangerous substances schedules is designed to provide notice of the changes that have occurred in such schedules over the preceding year. But rather than focus on the Department, as § 278(d) does, the appellant chooses to interpret that section, together with what he perceives to be the intent of the overall scheme embodied in § 278, to require the General Assembly to, itself, update and republish the schedules. As he sees it, § 278(c) is merely a stop-gap measure--substances controlled consistently with the federal government's actions retain that status only so long as they are "new", i.e., until the next update or republication is required. With specific reference to the facts sub judice, the appellant asserts Four to five years is ample opportunity [for the State to itself publish the law]. To decide otherwise is to unconstitutionally strain the word "new" in the statute. Furthermore, to give no legal effect to the scheduling requirement of § 278(d) would be an unconstitutional denial of the appellant's right to reasonable notice.

Appellant's Brief at 11. 4

C.

Not unexpectedly, the State takes the opposite position. Relying on Samson v. State, 27 Md.App. 326, 341 A.2d 817 (1975) and State v. Ciccarelli, 55 Md.App. 150, 461 A.2d 550 (1983), it counters the appellant's argument by pointing out that the statutory scheme does not contemplate that the controlling of specific substances is a task which is entrusted to the Legislature on every occasion when the issue arises; it is, rather, a matter which the Legislature has designated the Department to perform. Thus, the State argues that whenever a substance has been controlled pursuant to § 278(c), by the Department's failure to object, that substance remains controlled in Maryland even though the Legislature never includes it in the § 279 schedules. The State's argument goes even further. Recognizing that the focus of § 278(d) is on the Department, it contends that the failure of the designated agency to update and republish schedules on an annual basis, as it is required by § 278(d) to do, does not permit a defendant charged with an offense involving the possession of a substance previously controlled pursuant to § 278(c) to escape punishment. The State, in other words, accepts the holding of the Court of Special Appeals in Samson, supra, 27 Md.App. at 334, 341 A.2d at 823, that the updating and republication requirement in § 278(d) is "directive only and although its failure is an abrogation of the Department's responsibility, its absence does not erase the law." Furthermore, the State notes that because § 278(d) makes clear that the schedules in § 279 are not necessarily the most current or accurate lists of controlled substances in Maryland, and because it designates the Department as the repository of such lists, the appellant was on notice to make appropriate inquiries with the Department.

II

We approach, as the parties have done, the critical issue in this case--the role of the General Assembly in the updating and the republication of the controlled dangerous substances schedules--by determining the meaning of § 278(d). Thus, we once again must engage in statutory interpretation. Determining the meaning and purpose of a statute requires, in addition to the words that the Legislature used in enacting it, consideration of the statutory scheme of which it is a part. See State v. Crescent Cities Jaycees Found., Inc., 330 Md. 460, 468, 624 A.2d 955, 959 (1993); Baltimore Gas & Elec. Co. v. Public Serv. Com., 305 Md. 145, 157, 501 A.2d 1307, 1313 (1986). Moreover, no portion of the statutory scheme should be read "so as to render the other, or any portion of it, meaningless, surplusage, superfluous or nugatory." GEICO v. Insurance Commissioner, 332 Md. 124, 132, 630 A.2d 713, 714 (1993).

III

Section 278 deals with the "[c]ontrol of substances." The scheme it prescribes contemplates that the need to control dangerous substances will be decided in three ways. Under the first, pursuant to the command that the agency is responsible for controlling all substances enumerated in § 279, the Department "may, by motion or on the petition of any interested party pursuant to the procedures of the Administrative Procedure Act, and after notice and hearing, add a substance as a controlled dangerous substance." Subsection (a). The determination whether to add a substance must be made in light of eight factors, i.e.:

(1) Its actual or relative potential for abuse;

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

(3) State of current scientific knowledge regarding the 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 psychic or physiological dependence liability; and

(8) Whether the substance is an immediate precursor of a substance already controlled....

Id. An order controlling a substance "shall issue" if the Department's findings reveal that the subject substance has a potential for abuse. Id.

The second method of controlling substances relates to "new" substances controlled under federal law. Thus, when federal law designates as controlled a substance not previously controlled in Maryland, that substance "shall be similarly controlled under this subheading unless the Department objects to such inclusion or rescheduling." Also contained in subsection (c) is the third method. In the event that the Department objects to the federal control of a substance, it is required to cause its reasons to be published and made public and to conduct a hearing. The decision reached at the conclusion of the hearing, which must be published and made public, is final. Subsection (d) places on the Department the responsibility to "update and republish a schedule ... on an annual basis," beginning after July 1, 1970. Thus, what subsection (d) requires the Department to do is quite clear; the words the Legislature used are not at all ambiguous. See Harris v. State, 331 Md. 137, 145, 626 A.2d 946, 950 (1993); State v. Thompson, 332 Md. 1, 7, 629 A.2d 731, 734 (1993). The question then becomes what is the purpose of subsection (d)?

IV

Although the Samson court touched upon it, the issue that this case presents was neither the focus nor the issue in that case. Notwithstanding that the defendant had challenged "whether the procedures followed [to control Phendimetrazine and communicate that act] were correct under the statute," id. at 330, 341 A.2d at 821, the question addressed by the Samson court actually was the sufficiency of the evidence--the adequacy of the proof offered by the State to prove that phendimetrazine, a substance not listed in § 279(c), was indeed a controlled substance, "that this has been made part of the law by virtue of Dr. Solomon's including it." 27 Md.App. at 329, 341 A.2d at 820. The State offered a letter from the Secretary of the Department of Health & Mental Hygiene, addressed to dentists, hospital administrators, manufacturers and wholesalers, pharmacies, physicians and veterinarians, specifying that phendimetrazine was a Schedule III controlled substance, as proof that phendimetrazine was controlled in Maryland. Id. at 340, 341 A.2d at 826. The letter purported to be "in compliance with § 279(c) and (d) of Art. 27" and to give notice "to reschedule, update, and republish" the substances listed. Id. According to the letter, "this action is being taken in order for the Maryland Controlled Dangerous Substances Act to conform with the Federal Comprehensive Drug Abuse Prevention and Control Act of 1970 (Public Law 91-513)." Id.

Seeking to ascertain the nature and effect of the Secretary's letter, the court considered the Department's...

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