United States v. Green

• Decision Date: 07 December 2016
• Docket Number: 6:14–CR–06038 EAW
• Citation: 222 F.Supp.3d 267
• Parties: UNITED STATES of America, v. Alexander GREEN and Charles Green, Defendants.
• Court: U.S. District Court — Western District of New York

222 F.Supp.3d 267

UNITED STATES of America,

v.Alexander GREEN and Charles Green, Defendants.

6:14–CR–06038 EAW

United States District Court, W.D. New York.

Signed December 7, 2016

Douglas E. Gregory, U.S. Attorney's Office, Rochester, NY, for United States of America.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Defendants Alexander and Charles Green (collectively "Defendants"), indicted for an alleged marijuana conspiracy, seek dismissal on constitutional grounds. (Dkt. 82). Their motion to dismiss was initially considered by the magistrate judge¹ assigned to this case, who issued a thorough and comprehensive Report and Recommendation, recommending that the motion be denied. (Dkt. 157). Defendants have filed objections to that Report and Recommendation. (Dkt. 174).

Among other arguments, Defendants contend that their equal protection rights have been violated by the federal government's classification of marijuana as a Schedule I controlled substance—the highest level of drug classification. (See id. ). Defendants seek an evidentiary hearing concerning marijuana's Schedule I classification, arguing that the classification is irrational and unconstitutional. (Id. at 21–22).

Over 40 years ago, when dealing with a similar challenge to marijuana's Schedule I classification, the Second Circuit Court of Appeals cautioned: "Any court asked to undertake review of the multifarious political, economic and social considerations that usually underlie legislative prohibitory policy should do so with caution and restraint." United States v. Kiffer, 477 F.2d 349, 352 (2d Cir. 1973). Under the circumstances presented here, if the Court were to accept Defendants' invitation to conduct an evidentiary hearing to evaluate the rationality of marijuana's scheduling, it would be travelling a precarious road towards judicial arrogance—entertaining the possibility that this Court, and this Court alone, could make a determination under a rational basis standard of review that marijuana should be decriminalized.

That determination is for the legislative process, not the judicial process. Because Defendants have failed to establish that the classification of marijuana as a Schedule I controlled substance violates their constitutional rights, and because an evidentiary hearing will not impact that conclusion, this Court adopts the Report and Recommendation and Defendants' motion to dismiss is denied.

BACKGROUND

A two-count indictment was returned on March 27, 2014, against Defendants² charging them pursuant to 21 U.S.C. § 846 with a narcotics conspiracy to possess with the intent to distribute, and to distribute, 100 kilograms or more of a mixture and substance containing a detectable amount of marijuana, in violation of 21 U.S.C. § 841, and a money laundering conspiracy in violation of 18 U.S.C. § 1956. (Dkt. 1). Defendants filed a joint motion to dismiss the narcotics conspiracy count (Count 1) on the grounds that the classification of marijuana as a Schedule I controlled substance violates Defendants' constitutional rights—namely their Fifth Amendment equal protection rights³ and their Tenth Amendment rights. (Dkt. 82). Defendants requested a hearing to present evidence, as set forth in the submitted declarations of Carl Hart, Ph.D. and Luke J. Peppone, Ph.D., establishing that the continued inclusion of marijuana as a Schedule I controlled substance violates Defendants' constitutional rights. (See Dkt. 83 at 6). The Government filed a brief in opposition to Defendants' motion (Dkt. 106), Defendants filed a joint reply memorandum of law (Dkt. 109), and the Government filed a "Rejoinder" to the reply memorandum of law (Dkt. 113). Oral argument was held before United States Magistrate Judge Jonathan W. Feldman on August 19, 2015 (Dkt. 114), and on June 27, 2016, he issued a Report and Recommendation recommending that no evidentiary hearing be conducted and that Defendants' motion to dismiss Count 1 be denied (Dkt. 157).

Defendants filed objections to the Report and Recommendation on September 9, 2016 (Dkt. 174), and the Government filed its memorandum in opposition on October 5, 2016 (Dkt. 186). Oral argument was held before the undersigned on November 2, 2016, and the Court reserved decision. (Dkt. 193).

Defendants' objections focused on their argument that it is no longer rational to maintain that marijuana has no currently accepted medical use in treatment in the United States—one of the criteria established by Congress for the classification of a drug as a Schedule I controlled substance—and, therefore, at a minimum, the Court is obliged to conduct an evidentiary hearing to consider the medical field's current assessment of marijuana's efficacies before summarily denying Defendants' motion to dismiss. (See Dkt. 174 at 11). Defendants go on to argue that even if there are competing opinions as to the medical value provided by marijuana, the state of medicine has evolved to the point where marijuana is currently accepted for medical use in treatment, and therefore the criteria for Schedule I classification is no longer satisfied. (Seeid. at 16–20). In other words, according to Defendants' argument, the evidence they would present at a hearing would establish that it is irrational, and therefore unconstitutional, to conclude that there is no currently accepted medical use for marijuana. (Seeid. at 20–21).

This Court reviews Defendant's objections under a de novo standard. Fed. R. Crim. P. 59(b)(3) ; see also 28 U.S.C. § 636(b)(1)(C) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (requiring a district court to make de novo determinations to the extent that a party makes specific objections to a magistrate's findings).

THE CONTROLLED SUBSTANCES ACT

Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970 ("the Act") in response to President Nixon's declared "war on drugs." Gonzales v. Raich, 545 U.S. 1, 10, 125 S.Ct. 2195, 162 L.Ed.2d 1 (2005). The Act consolidated various drug laws into one comprehensive statute in an effort to, among other things, "strengthen law enforcement tools against the traffic in illicit drugs." Id. ; see, e.g., Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91–513, 84 Stat. 1236, 1236 (1970) (describing the Act as intending "to strengthen existing law enforcement authority in the field of drug abuse"). Title II of the Act, codified at 21 U.S.C. § 801 et seq., is the Controlled Substances Act ("CSA"), and it "repealed most of the earlier antidrug laws in favor of a comprehensive regime to combat the international and interstate traffic in illicit drugs." Gonzales , 545 U.S. at 7, 12, 125 S.Ct. 2195. Among other findings, Congress declared that the "illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people." Comprehensive Drug Abuse Prevention and Control Act § 101(2); see, e.g., 21 U.S.C. § 801(2). "Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA." Gonzales, 545 U.S. at 13, 125 S.Ct. 2195. Congress classified controlled substances into five separate schedules, the designation of which is based on "their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body." Id.

A drug falling within the scope of Schedule I—the highest level of classification with the most onerous control restrictions—must have:

1. A high potential for abuse;

2. "[N]o currently accepted medical use in treatment in the United States;" and,

3. "[A] lack of accepted safety for use of the drug or other substance under medical supervision."

21 U.S.C. § 812(b)(1). Congress classified marijuana as a Schedule I drug when it enacted the CSA based, in part, on the recommendation of the Assistant Secretary of the Department of Health, Education, and Welfare, who urged marijuana's Schedule I classification at least until the completion of studies which were already underway at the time. Gonzales , 545 U.S. at 14, 125 S.Ct. 2195.

Congress established a process for reclassification, vesting the Attorney General with the power to reclassify a drug "on the record after opportunity for a hearing...." 21 U.S.C. § 811(a). Before initiating proceedings under § 811(a), the Attorney General must request a scientific and medical evaluation from the Secretary of Health and Human Services ("HHS"), whose findings with respect to scientific and medical matters are considered binding. Id. § 811(b). The Attorney General has delegated her reclassification responsibility under the CSA to the Drug Enforcement Agency ("DEA"). See 28 C.F.R. § 0.100(b).

With respect to the second criteria for Schedule I classification (whether the drug has "currently accepted medical use in treatment in the United States"), the DEA applies a five-part test: "(1) [t]he drug's chemistry must be known and reproducible; (2) there must be adequate safety studies; (3) there must be adequate and well-controlled studies proving efficacy; (4) the drug must be accepted by qualified experts; and (5) the scientific evidence must be widely available." All. for Cannabis Therapeutics v. Drug Enf't Admin., 15 F.3d 1131, 1135 (D.C. Cir. 1994). In other words, all five of those criteria must be met in order for the DEA to conclude that a drug has currently accepted medical use in treatment in the United States. See id.

Those seeking to challenge the DEA's determination with respect to classification must pursue relief in a United States Court of Appeals. 21 U.S.C. § 877 ("[A]ny person aggrieved by a final decision of the Attorney General may...