United States v. Monroe, CR-75-577 RFP.

• Decision Date: 05 February 1976
• Docket Number: No. CR-75-577 RFP.,CR-75-577 RFP.
• Parties: UNITED STATES, Plaintiff, v. Laurence MONROE et al., Defendants.
• Court: U.S. District Court — Northern District of California

408 F. Supp. 270

UNITED STATES, Plaintiff, v. Laurence MONROE et al., Defendants.

No. CR-75-577 RFP.

United States District Court, N. D. California.

February 5, 1976.

COPYRIGHT MATERIAL OMITTED

Malcolm Stuart Segal, Asst. U. S. Atty., San Francisco, Cal., for plaintiff.

Steven M. Kipperman, Kipperman, Shawn & Keker, San Francisco, Cal., for defendant Laurence Monroe.

William L. Osterhoudt, San Francisco, Cal., for defendant Cynthia Horn.

William Goodman, Federal Public Defender, San Francisco, Cal., for defendant Eddie Lee Johnson.

Dennis Roberts, Oakland, Cal., for defendant Carolyn Willis.

OPINION^*

PECKHAM, District Judge.

Defendants are charged with Conspiracy to Distribute and to Possess Heroin and Cocaine with Intent to Distribute (21 U.S.C. §§ 846, 841(a)(1)) and Distribution and Possession with Intent to Distribute Heroin and Cocaine (21 U.S.C. § 841(a)(1)). The motion presently before the court is defendant Monroe's Motion to Dismiss the Indictment, in which defendants Horn, Johnson and Willis have joined.

I. BACKGROUND FACTS

Effective October 27, 1970, Congress enacted Public Law 91-513, the Comprehensive Drug Abuse Prevention and Control Act of 1970, also known as the Controlled Substance Act (hereafter referred to as "the Act"). Section 401(a) of the Act, 21 U.S.C. § 841(a), which the defendants are charged with violating and conspiring to violate, see 21 U.S.C. § 846, makes 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 . . .." The term "controlled substance" means "a drug or other substance, or immediate precursor, included in schedules I, II, III, IV, or V of the Act." 21 U.S.C. § 802(6). Section 202 of the Act, 21 U.S.C. § 812 (hereafter "section 812") lists the drugs and substances which shall initially comprise schedules I, II, III, IV, and V, and requires that those sections "be updated and republished" annually.¹

Pursuant to section 812's mandate, the government has republished the schedules in the Federal Register on three separate occasions,² the last time being June 20, 1974. Accordingly, on June 20, 1975, it was necessary for the government to republish the schedules again.³ This was not done. Rather, on April 1, 1975, the Schedules of Controlled Substances that were published in the Federal Register on June 20, 1974, were published in the Code of Federal Regulations — 21 C.F.R. § 1308.

Defendants contend that the appearance of the June 20, 1974, Schedules of Controlled Substances in the April, 1975, publication of the Code of Federal Regulations does not comply with section 812's republication requirement and move to dismiss the indictment for failure to state an offense. Apparently, defendants believe that section 812's republication requirement was intended to serve as a procedure by which the schedules would be periodically reissued as agency regulations, and that by failing to properly republish the schedules, the government inadvertently permitted them to lapse and expire. We disagree with defendants' interpretation; however, even if defendants' interpretation is correct, its application to this case should not result in the dismissal of the government's indictment.

II. THE REPUBLICATION REQUIREMENT OF 21 U.S.C. SECTION 812⁴

It is axiomatic that section 812's republication requirement cannot be properly interpreted without reference to the rest of the Act's provisions. Accordingly, defendants emphasize section 201's (21 U.S.C. § 811 hereafter section 811) explicit incorporation of the publication requirements of the Federal Register Act, 44 U.S.C. § 1501 et seq.,⁵ and the Administrative Procedure Act, 5 U.S.C. § 551 et seq.,⁶ in support of their contention that the annual republication requirement of section 812 is but another integral part of the comprehensive rule-making procedure legislated by Congress. While agreeing that section 812 must be read in light of section 811,⁷ we afford far less significance to section 812's republication requirement than do defendants.

Section 811 delegates to the Attorney General and Secretary of Health Education and Welfare the authority to add, delete or transfer substances from the schedules of controlled substances which Congress initially provided. However, in order to exercise the power that was delegated to them, the Attorney General and Secretary must follow a comprehensive procedure, in which they must consider a set of Congressionally enumerated factors⁸ and follow rule-making procedures prescribed by the Administrative Procedure Act.⁹

It is also significant that section 811(a) provides that "proceedings for the issuance, amendment, or repeal of the controlled substance schedules may be initiated by the Attorney General (1) on his own motion, (2) at the request of the Secretary, or (3) on the petition of any interested party. (Emphasis added.) Without such a provision, it could be argued that the purpose of section 812's annual republication requirement was to force the Attorney General to formally consider whether to retain or delete from the schedules, substances, which the Attorney General might otherwise not have had occasion to consider. However, having already given any interested party the right to initiate proceedings with respect to the addition or deletion of substances from the schedules, there would be no need for Congress to further provide in section 812 that these schedules be reissued annually pursuant to the formal rule-making procedure of the Administrative Procedure Act. Accordingly, we will not attribute this intent to Congress in drafting section 812(a).

Moreover, defendants' interpretation of section 812(a) cannot be reconciled with subsection (c) of section 812, which reads as follows:

Schedules I, II, III, IV, and V , the schedules established by this section, shall, unless and until amended pursuant to section 811 of this title, consist of the following drugs or other substances, by whatever official name, common or usual name, chemical name, or brand name designated. (Emphasis added.)

The clear import of this subsection is that the substances initially listed by Congress on the schedules that it provided are to remain controlled substances until they are expressly removed from the schedules pursuant to section 811. Thus, while section 812(a) clearly orders the controlled substance schedules to be republished, it is clear that Congress did not intend republication to serve as a reissuance of the schedules, which if done improperly would cause those schedules to lapse and expire. Rather, we hold that Congress intended no more than what it plainly said in section 812(a) — that is that

There are established five schedules of controlled substances, to be known as schedules I, II, III, IV, and V. Such schedules shall initially consist of the substances listed in this section. The schedules established by this section . . . shall be updated and republished on an annual basis . . .. (Emphasis added.)

Thus far, we have only spoken in terms of section 812's "republication requirement," but as is plain from that section's language, the order is to "update and republish." "Update," of course, means simply to bring up to date, or to make current. Thus, it is our belief that Congress's direction to "update" the schedules it established was made in contemplation of changes in the schedules being made pursuant to the procedure established by section 811. Similarly, we believe the requirement that the schedules, once "updated," be "republished" was solely for the purpose of establishing one list which would reflect all substances which were currently subject to the Act's provisions. In the absence of this requirement, in order to ascertain what substances were controlled, one would have to refer to the initial list promulgated by Congress and then search the Federal Register for evidence of every subsequent addition and deletion made pursuant to section 811.

Thus, according to our interpretation of 21 U.S.C. § 812(a),¹⁰ defendants' motion to dismiss the indictment must be denied; however, even under defendants' interpretation of section 812, we do not think that dismissal of the indictment would be proper.

III. THE CONSEQUENCES OF NONPUBLICATION

Assuming that defendants' interpretation of section 812 were correct and that the government's obligation to republish the schedules of controlled substances is the same as their obligation to publish any substantive agency rule, 5 U.S.C. § 552(a), or document required to be published by an act of Congress, 44 U.S.C. § 1505(a)(3), we would have to determine the consequences which result from the government's failure to live up to its obligation.

Section 7 of the Federal Register Act, 44 U.S.C. § 1507 provides that

A document required by section 1505(a) of this title to be published in the Federal Register is not valid as against a person who has not had actual knowledge of it until the duplicate originals or certified copies of the document have been filed . . . and a copy has been made available for public inspection as provided by section 1503 of this title. . . .

The apparent inference to be drawn from this section is that Congress intended such a document to be valid against any person who has actual knowledge of it even though the duplicate originals or certified copies were not filed as required, and even though the document was never published. Yet, in Hotch v. United States, 212 F.2d 280, 14 Alaska 594 (9th Cir. 1954), the court construed this provision¹¹ as making actual knowledge a sufficient substitute only for the filing requirement of section 2,¹² but not for the independent requirement of publication.

Hotch involved the conviction of a commercial fisherman for fishing in waters during a period that had been declared "closed" by regulation of the Department of the Interior. After the conviction had been...