U.S. v. Durham
| Decision Date | 07 August 1991 |
| Docket Number | 90-10049,Nos. 90-10022,s. 90-10022 |
| Citation | 941 F.2d 886 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Bonnie Ann DURHAM, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jerome Sherman STANLEY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Margaret A. McKnight, Fresno, Cal., for defendant-appellant Jerome Stanley.
Jerome Stanley, in pro per.
Jesse Cordova, Lodi, Cal., for defendant-appellant Bonnie Ann Durham.
Nancy L. Simpson, Asst. U.S. Atty., George Williamson, Sp. Asst. U.S. Atty., Sacramento, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Eastern District of California.
Before SCHROEDER, PREGERSON and NELSON, Circuit Judges.
We are asked to determine whether methamphetamine is properly listed in Schedule II of the schedules of controlled substances established by the Controlled Substances Act. 21 U.S.C. §§ 811, et seq. For the reasons stated we hold that the presence of methamphetamine as a component ingredient of certain over-the-counter drugs has no effect on the inclusion of methamphetamine as a Schedule II controlled substance. We also hold that the defect in appointment of a Special Assistant United States Attorney requires a remand to the district court to determine the extent of the supervision and control exercised by the United States Attorney's Office.
Appellants Jerome Stanley and Bonnie Ann Durham were convicted of several offenses relating to the manufacture and possession A brief review of the structure of the statutory and administrative regulation of "controlled substances" will put Stanley's arguments in context. Section 812 in Title 21 of the United States Code creates five schedules of controlled substances labeled I through V. The substances with the most potential for abuse or risk from use are in Schedule I, with declining risk in the following schedules. The punishment for conviction of possession or distribution of the listed substances generally follows the same pattern, with more severe punishments for convictions under Schedule I than Schedule II and so on. 1 Congress initially listed specific drugs under each schedule. However, 21 U.S.C. § 811 authorizes the Attorney General, by regulation, to move substances between schedules or add substances to or remove them from the schedules.
of methamphetamine. Only Stanley has raised issues relating to methamphetamine as a Schedule II substance. Stanley did not raise his primary contention concerning whether methamphetamine is properly placed within the schedules of controlled substances in the trial court. This contention will be reviewed for plain error. See United States v. Hernandez, 876 F.2d 774 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 179, 107 L.Ed.2d 135 (1989); United States v. Bustillo, 789 F.2d 1364 (9th Cir.1986). This issue is discussed in this opinion because if Stanley's contentions were upheld, the other questions raised would be moot as the indictment would be flawed
The current version of the regulations specifically designates methamphetamine as a Schedule II controlled substance, consistent with earlier versions going back several years. 21 C.F.R. § 1308.12. The regulations also exclude certain substances determined to be non-narcotic, including Rynal Spray and Vicks Inhaler, which may contain small amounts of methamphetamine. 21 C.F.R. § 1308.22.
Basically Stanley argues that methamphetamine is not a Schedule II controlled substance. This issue can more properly be characterized as containing the following three sub-issues: (1) whether methamphetamine is still a Schedule III, rather than a Schedule II controlled substance; (2) whether methamphetamine has been specifically excluded as a controlled substance; and (3) whether the court erred in failing to instruct the jury that they must find, as an element of the offense, that any substance called methamphetamine must be found to be a central nervous system stimulant before it is a controlled substance. We address each issue in turn.
The first question is whether methamphetamine was properly listed in Schedule II of the schedule of controlled substances. The most Stanley can hope to gain by this contention is a challenge to the sufficiency of the indictment which charged him with possession of a Schedule II controlled substance. 2 The sufficiency of an indictment is reviewed de novo. United States v. Tuohey, 867 F.2d 534, 536 (9th Cir.1989).
Methamphetamine was originally listed in Schedule III by Congress, and later moved to Schedule II by the Attorney General. The crux of Stanley's argument is that the Attorney General improperly delegated his authority to reschedule controlled substances. Stanley acknowledges that we have previously examined this issue and reached a contrary result. United States v. Jones, 852 F.2d 1235 (9th Cir.1988); see United States v. Burnes, 816 F.2d 1354 (9th Cir.1987). Stanley argues Even assuming we were free to do so, we would decline Stanley's invitation to revisit the issue in light of this court's decision in United States v. Kendall, 887 F.2d 240 (9th Cir.1989). The Kendall court concluded "[w]hether or not DEA ever followed the procedures and made the findings required to reschedule methamphetamine the [Bureau of Narcotics and Dangerous Drugs] did so in 1971." 887 F.2d at 241. It is no longer an open question whether methamphetamine has properly been designated a Schedule II controlled substance.
that this court reached the incorrect conclusion in Jones because the court confused an "annual publication" in the federal register, required by 21 U.S.C. § 812(a), with the lengthy procedure required by sections 811(a)(b) and (c) before a substance can be rescheduled. We are bound by previous decisions of this circuit. See United States v. Mandel, 914 F.2d 1215, 1221 (9th Cir.1990)
We next examine Stanley's contention that methamphetamine has been specifically excluded as a controlled substance. Stanley maintains that since methamphetamine is not a controlled substance, the indictment was flawed, requiring reversal.
The Controlled Substances Act provides a method for designating certain substances as legal:
The Attorney General shall by regulation exclude any nonnarcotic substance from a schedule if such substance may, under the Federal Food, Drug, and Cosmetic Act [21 U.S.C.S. §§ 301 et seq.], be lawfully sold over-the-counter without a prescription.
21 U.S.C. § 811(g)(1).
Stanley argues that methamphetamine is no longer a controlled substance because the Attorney General has excluded the drug from the schedule of controlled substances. Specifically, Stanley cites 21 C.F.R. § 1308.22, which contains lists of excluded nonnarcotic over-the-counter substances. Within these lists are two compounds containing, as an ingredient, methamphetamine or its equivalent. One is designated Rynal, the other Vicks Inhaler. The list of excluded nonnarcotic, over-the-counter substances designates each substance by trade name, dosage for its composition, potency and the manufacturer or distributor. Since Rynal and Vicks Inhaler were specifically excluded by the Attorney General pursuant to 21 U.S.C. § 811(g)(1), Stanley maintains methamphetamine is not a controlled substance.
Stanley's argument has no merit. To begin with, his argument is contrary to the specific command of the regulations which, in regulating stimulants under Schedule II, provide:
(d) 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 stimulant effect on the central nervous system:
* * * * * *
(2) Methamphetamine, its salts, isomers, and salts of its isomers.
21 C.F.R. § 1308.12 (April 1, 1989 ed.). This court has repeatedly concluded, as we have again in this opinion, that methamphetamine has been properly designated a Schedule II controlled substance. United States v. Kendall, 887 F.2d 240; United States v. Jones, 852 F.2d 1235; United States v. Alexander, 673 F.2d 287 (9th Cir.), cert. denied, 459 U.S. 876, 103 S.Ct. 168, 74 L.Ed.2d 139 (1982).
In contrast, Rynal Spray and Vicks Inhaler have been designated nonnarcotic over-the-counter substances. 21 C.F.R. § 1308.22 (April 1, 1989 ed.) These two products contain methamphetamine or a derivative as a part of a combination of ingredients and in such amounts as to be much less likely to be abused, thus enabling the substance to be used for its medicinal values. The functional difference between methamphetamine itself and the non-narcotic compounds containing methamphetamine as an ingredient is clear and is the basis of the different treatment they are accorded by the regulations. The mere inclusion of a controlled substance as an ingredient in a nonnarcotic nonprescription Moreover, if we were to interpret the statute as Stanley suggests, we would be giving no effect to the Attorney General's decision to designate methamphetamine as a controlled substance. There is no conflict between the listing of methamphetamine in Schedule II and the exclusion of the two products from all schedules, since effect can be given to both regulations. The possessor of a Vicks Inhaler or Rynal could raise 21 C.F.R. § 1308.22 as a defense to a charge of possession of methamphetamine. The possessor of methamphetamine, such as Stanley, is not shielded by the exemption of Vicks Inhaler or Rynal. Accordingly, we conclude that Stanley's proposed interpretation of the regulation is inconsistent with the structure of the statutory and administrative scheme and, therefore, must fail. See United States v. Schrock, 855 F.2d 327, 332 (6th Cir.1988).
drug does not alter its status under the Controlled Substances Act. 3
Next, we address the issue of whether the trial court erred in failing to instruct the jury that ...
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