United States v. Andrews

• Decision Date: 02 February 1976
• Docket Number: Cr No. 75-843-CBR.
• Citation: 408 F. Supp. 1007
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Searcy Baker ANDREWS, aka, Satch, Andy, Doc, Doctor, Searc, et al., Defendants.

408 F. Supp. 1007

UNITED STATES of America, Plaintiff, v. Searcy Baker ANDREWS, aka, Satch, Andy, Doc, Doctor, Searc, et al., Defendants.

Cr No. 75-843-CBR.

United States District Court, N. D. California.

February 2, 1976.

James L. Browning, Jr., U. S. Atty., John C. Gibbons, Asst. U. S. Atty., San Francisco, Cal., for plaintiff.

Jonathan Lappen, Beverly Hills, Cal., for Green.

John W. Keker, San Francisco, Cal., for Chas. Johnson.

Michael H. Weiss, San Francisco, Cal., for Robert Andrews.

Franklyn K. Brann, San Francisco, Cal., for Lewis Dixon.

Paul G. Sloan, San Francisco, Cal., for Loretta Bonney.

Edward C. Bell, Oakland, Cal., for Anthony Martin.

Arthur W. Ruthenbeck, Oakland, Cal., for Nolan Hall.

J. Frank McCabe, San Francisco, Cal., for Stephen Davenport.

George G. Walker, San Francisco, Cal., for Melvin Andrews.

John B. Rest, Oakland, Cal., for Rodney Andrews.

Wesley E. Helm, Richmond, Cal., for Gary Collins.

Michael J. Keady, San Francisco, Cal., for George Stringer.

Stephen Arian, San Francisco, Cal., for Clarence Mure.

William M. Goodman, Asst. Fed. Public Defender, San Francisco, Cal., for J. Johnson.

Marvin Stender, San Francisco, Cal., for M. L. Martini.

Paul A. Harris, San Francisco, Cal., for Blackmer.

Stephen Perelson, San Francisco, Cal., for Sweet.

Jerrold M. Ladar, San Francisco, Cal., for Hill.

Marcus S. Topel, San Francisco, Cal., for Searcy Baker Andrews.

MEMORANDUM OF OPINION

RENFREW, District Judge.

Defendants herein are charged with violations of 21 U.S.C. §§ 841(a)(1), 843(b) and 846, Possession with Intent to Distribute Cocaine, Possession with Intent to Distribute Heroin, Use of Telephone to Facilitate Commission of a Felony, and Conspiracy to Possess and Distribute Controlled Substances, respectively. On December 22, 1975, defendants moved the Court to dismiss the indictment pursuant to Rule 12 of the Federal Rules of Criminal Procedure on the ground that the Government's failure to republish the schedules of controlled substances established by 21 U.S.C. § 812, as required by § 812(a), renders those schedules void and, therefore, the indictment fails to state an offense. A hearing was held on the motion on January 21, 1976, at which time the Court denied the motion from the bench, stating its reasons substantially as set forth below. Because of the novelty and importance of the issues presented, the Court decided to set forth its views in a Memorandum of Opinion.

The Comprehensive Drug Abuse Prevention and Control Act of 1970, also known as the Controlled Substances Act, 21 U.S.C. § 801 et seq. ("the Act"), was enacted on October 27, 1970. The principal purpose of the Act was

"to deal in a comprehensive fashion with the growing menace of drug abuse in the United States (1) through providing authority for increased efforts in drug abuse prevention and rehabilitation of users, (2) through providing more effective means for law enforcement aspects of drug abuse prevention and control, and (3) by providing for an overall balanced scheme of criminal penalties for offenses involving drugs." H.R.Rep. No. 91-1444, 91st Cong., 2d Sess. (1970), in 3 U.S.Code Cong. & Admin.News, p. 4567 (1970).

Section 812 of Title 21, United States Code ("Section 812"), established five schedules of controlled substances and listed those drugs and other substances which were initially to be included in each schedule. That section also provided that

"The schedules established by this section shall be updated and republished on a semi-annual basis during the two-year period beginning one year after the date of enactment of this subchapter and shall be updated and republished on an annual basis thereafter." 21 U.S.C. § 812(a).

Other drugs and substances not listed in the statute which the Attorney General and the Secretary of Health, Education, and Welfare believe should be controlled would be classified and assigned to the appropriate schedule according to a procedure established by 21 U.S.C. § 811 ("Section 811"), as discussed below. Section 841(a) of Title 21, United States Code, made it unlawful "for any person knowingly or intentionally — (1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance * * *."

On May 12, 1972, January 8, 1973, March 30, 1973, and June 20, 1974, the Government republished the schedules of controlled substances as required by Section 812(a) of the Act.¹ Since the Act requires republication of the schedules "on an annual basis" after the initial two-year period following enactment of the Act, 21 U.S.C. § 812(a), republication was necessary on or before June 20, 1975, in order to comply with the mandate of the Act. On April 1, 1975, the schedules of controlled substances were published in the Code of Federal Regulations, appearing at 21 C.F.R. § 1308, but were not republished in the Federal Register subsequent to June 20, 1974.

Defendants contended that republication of the schedules in the Code of Federal Regulations, but not in the Federal Register, did not comply with the statutory requirement. They argued further that because no valid publication was in effect during the period the acts charged in the indictment allegedly occurred — July 21, 1975, to November 30, 1975 — neither heroin nor cocaine were controlled substances at that time, and therefore, the indictment failed to state an offense and must be dismissed.

Defendants' motion was by no means frivolous; it raised substantial and difficult questions of statutory construction and case law interpretation. To this Court's knowledge, only one other court had considered the precise issue presented here, United States v. Monroe, 270 F.Supp. 408 (N.D.Cal.1976).² In that case, the court denied the motion to dismiss. As this Court concurs in the result reached by the Monroe court, it is unnecessary to restate that court's reasoning here. The Court wishes merely to set forth briefly its own views on the issues defendants' motion presented.

For the purposes of this motion, the Court assumed, without deciding, that republication of the schedules of controlled substances in the Code of Federal Regulations, rather than in the Federal Register, did not comply with the annual republication requirement of Section 812(a).³ What remained to be decided were the consequences that flowed from such assumed noncompliance. The Court was of the opinion that a careful reading of the Act, with particular attention to its legislative history, established beyond doubt that Congress did not intend for the controlled substances listed in Section 812(c) to become de-controlled by the mere failure of the Government to republish the schedules of controlled substances. Furthermore, the Court did not believe that the relevant case law in this Circuit compelled a contrary conclusion.

Section 812(c) sets forth the initial lists of controlled substances for each schedule and provides that the schedules "shall, unless and until amended pursuant to section 811 of this title," consist of the listed drugs and other substances. The cross-reference to 21 U.S.C. § 811 is to the procedures the Attorney General must follow if he wishes to change in any way the contents of the schedules of controlled substances contained in Section 812(c), whether by addition of a substance to or removal of a substance from the schedules, or by transfer of a substance from one schedule to another. Although the Attorney General is empowered to "remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule," 21 U.S.C. § 811(a)(2), he can do so only in compliance with the detailed procedures set forth in subsection 811(b). That subsection provides in pertinent part:

"The Attorney General shall, before initiating proceedings under subsection (a) of this section to control a drug or other substance or to remove a drug or other substance entirely from the schedules, and after gathering the necessary data, request from the Secretary a scientific and medical evaluation, and his recommendations, as to whether such drug or other substance should be so controlled or removed as a controlled substance. In making such evaluation of recommendations, the Secretary shall consider the factors listed in paragraphs (2), (3), (6), (7), and (8) of subsection (c) of this section and any scientific or medical considerations involved in paragraphs (1), (4), and (5) of such subsection. * * * The recommendations of the Secretary to the Attorney General shall be binding on the Attorney General as to such scientific and medical matters, and if the Secretary recommends that a drug or other substance not be controlled, the Attorney General shall not control the drug or other substance. If the Attorney General determines that these facts and all other relevant data constitute substantial evidence of potential for abuse such as to warrant control or substantial evidence that the drug or other substance should be removed entirely from the schedules, he shall initiate proceedings for control or removal, as the case may be, under subsection (a) of this section." 21 U.S.C. § 811(b) (emphasis added).

Furthermore, as indicated in subsection 811(b), both the Secretary of Health, Education, and Welfare and the Attorney General are required to consider the factors listed in subsection (c) of Section 811 in evaluating and recommending whether a drug or other substance should be controlled or de-controlled. Those factors include:

"(1) Its the drug's 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

...