U.S. v. Emerson, s. 86-5267

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation846 F.2d 541
Docket Number86-5274 and 86-5275,Nos. 86-5267,s. 86-5267
PartiesUNITED STATES of America, Plaintiff-Appellee, v. William Waldo EMERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Scott WOLLMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bruce EHRLICH, Defendant-Appellant.
Decision Date10 May 1988

Yolanda Orozco, Los Angeles, Cal., for defendant-appellant Emerson.

Michael D. Nasatir, Nasatir & Hirsch, Santa Monica, Cal., for defendant-appellant Ehrlich.

J. Brendan O'Neill, Santa Monica, Cal., for defendant-appellant Wollman.

Michael W. Emmick, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUG, BOOCHEVER and WIGGINS, Circuit Judges.

BOOCHEVER, Circuit Judge:

William Waldo Emerson, Scott Wollman, and Bruce Ehrlich (defendants) appeal their convictions under 21 U.S.C. Secs. 841(a)(1) and 846 (1982) for distributing and conspiring to distribute 3,4-methylenedioxymethamphetamine, also known as MDMA or Ecstasy (MDMA). Defendants challenge the temporary scheduling of MDMA as a controlled substance by the Administrator of the Drug Enforcement Agency (Administrator) under 21 U.S.C. Sec. 811(h) (Supp.III 1985). We hold that the Attorney General did not properly subdelegate his authority temporarily to schedule drugs to the Administrator and reverse the convictions.


Defendants were indicted for their activities involving the distribution of MDMA from or before September 1985 to February 1986. Defendants moved to dismiss the indictment on the ground that the Administrator improperly scheduled MDMA as a temporarily controlled substance. The district court denied the motion. Defendant Emerson then pled guilty to conspiracy to distribute a controlled substance. Defendants Wollman and Ehrlich pled guilty to distribution and conspiracy to distribute a controlled substance. All pleas reserved the right to appeal the court's order upholding the temporary scheduling of MDMA. The defendants timely appeal to this court under 28 U.S.C. Sec. 1291 (1982).


The Controlled Substances Act, Pub.L. No. 91-513, tit. II, 84 Stat. 1242 (1970) (codified as amended at 21 U.S.C. Secs. 801-904 (1982 & Supp.III 1985)), prohibits the distribution of a "controlled substance." 21 U.S.C. Sec. 841(a)(1) (1982). Penalties vary according to the scheduling of the substance. Id. Sec. 841(b) (1982). The scheduling of a particular drug (from Schedule I to V in decreasing order of severity of penalty) depends on the drug's potential for abuse, its currently accepted medical use in the United States, and its safety for use or potential for dependency. Id. Sec. 812(b) (1982). Congress initially established schedules for a number of substances, id. Sec. 812(c) (1982), and authorized the Attorney General to schedule, transfer between schedules, or remove a substance from a schedule, id. Sec. 811(a) (1982).

To add a substance to a schedule under the "permanent" scheduling authority, the Attorney General must find the substance has "a potential for abuse" and make the requisite findings of section 812. Id. Sec. 811(a)(1) (1982). In making these findings, the Attorney General must consider the following factors with respect to each drug:

(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 psychic or physiological dependence liability.

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

Id. Sec. 811(c) (1982). The Attorney General must also request an evaluation by the Secretary of Health and Human Services (Secretary). Id. Sec. 811(b) (1982). If after weighing the scientific and medical considerations involved in the above eight factors the Secretary recommends against controlling the drug, the Attorney General must honor that decision. Id. Finally, any scheduling by the Attorney General must be made in accordance with the formal rule-making requirements of the Administrative Procedure Act (APA), 5 U.S.C. Secs. 551-559 (1982 & Supp.IV 1986). 21 U.S.C. Sec. 811(a). In 1973, pursuant to authority granted by 21 U.S.C. Sec. 871(a) (1970), the Attorney General delegated the performance of his functions under the Controlled Substances Act to the Administrator. 28 C.F.R. Sec. 0.100(b) (1986).

Congress recognized that permanent scheduling could take from six to twelve months, during which time "enforcement actions against traffickers are severely limited and a serious health problem may arise." S.Rep. No. 225, 98th Cong., 2d Sess. 264, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3446; see also H.R.Rep. No. 835, 98th Cong., 2d Sess., pt. 1, at 11-12 (1984). As a result, Congress amended the Controlled Substances Act in 1984 to authorize the Attorney General to schedule substances on an emergency basis without "await[ing] the exhaustive medical and scientific determinations ordinarily required when a drug is being considered for control." S.Rep. No. 225, 98th Cong., 2d Sess. 265, reprinted in 1984 U.S.Code Cong. & Admin.News at 3447. The amendment, the Dangerous Drug Diversion Control Act of 1984 (1984 Act), Pub.L. No. 98-473, tit. II, sec. 508, 98 Stat. 2070, 2071-72 (codified at 21 U.S.C. Sec. 811(h) (Supp. III 1985)), permits the Attorney General to schedule temporarily in Schedule I a previously unscheduled substance upon finding this action "necessary to avoid an imminent hazard to the public safety." 21 U.S.C. Sec. 811(h)(1). In making this finding the Attorney General must consider only "those factors set forth in [21 U.S.C. Sec. 811(c)(4), (5), and (6)], including actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution." Id. Sec. 811(h)(3). While the Attorney General must transmit proposed orders to the Secretary, he need only "take into consideration any comments submitted by the Secretary." Id. Sec. 811(h)(4). The temporary scheduling expires at the end of one year, with one six-month extension permitted if the Attorney General has undertaken permanent scheduling efforts pursuant to section 811(a)(1). Id. Sec. 811(h)(2).

On May 31, 1985, acting pursuant to the 1973 delegation and the Attorney General's temporary scheduling authority under 21 U.S.C. Sec. 811(h), the Administrator issued a notice including an order temporarily scheduling MDMA as a Schedule I controlled substance effective July 1, 1985. Schedules of Controlled Substances; Temporary Placement of 3,4-Methylenedioxymethamphetamine (MDMA) Into Schedule

I, 50 Fed.Reg. 23,118, 23,119 (1985). 1

Defendants challenge the constitutionality of section 811(h), the Administrator's general authority to schedule substances temporarily, and the propriety of the particular MDMA scheduling order. Ordinarily these issues would be properly before the court in a criminal proceeding. See generally 5 U.S.C. Sec. 703 (1982) ("Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement."). Section 811(h)(6), however, provides that "[a]n order issued under [section 811(h)(1) ] is not subject to judicial review." We must consider the extent to which this section precludes our review of the above issues.

The government argues that section 811(h)(6) disallows all review by this court--including constitutional review--of the issuance of particular temporary scheduling orders. We disagree. This provision does not refer specifically to review of section 811(h)'s constitutionality or the authority of the Administrator to schedule substances temporarily. Absent "clear and convincing" evidence that Congress intended to preclude constitutional review of agency action, we presume such review to be available. Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977); Johnson v. Robison, 415 U.S. 361, 373-74, 94 S.Ct. 1160, 1169, 39 L.Ed.2d 389 (1974); Rodrigues v. Donovan, 769 F.2d 1344, 1347 (9th Cir.1985). There is no "clear and convincing" evidence that Congress intended section 811(h)(6)'s general preclusion of "judicial review" to extend to constitutional review of the Attorney General's temporary scheduling orders. Nor does the legislative history of Sec. 811(h) provide any indication that Congress intended to undertake such "extraordinary" action. Sanders, 430 U.S. at 109, 97 S.Ct. at 986. Construing a statute to preclude constitutional review would "raise serious questions concerning [its] constitutionality," and therefore, whenever possible, statutes should be interpreted as permitting such review. Johnson, 415 U.S. at 366-67, 94 S.Ct. at 1165. This appeal does not require us to address whether Congress has the power to preclude constitutional review. We merely hold that consistent with section 811(h)(6), we can review on appeal from a criminal conviction the constitutionality of the Administrator's temporary scheduling of MDMA. Cf. Rodrigues, 769 F.2d at 1347-48 (statute making Secretary of Labor's decision to deny payments unreviewable did not bar review to ensure that decision comported with fifth amendment's guarantee of due process).

We express no opinion whether section 811(h)(6) precludes judicial review of temporary scheduling orders in criminal enforcement proceedings to determine their compliance with the relevant statutory requirements. In United States v. Caudle, 828 F.2d 1111, 1112 (5th Cir.1987), the Fifth Circuit held that the order...

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