United States v. Suquet
| Decision Date | 20 July 1982 |
| Docket Number | No. 80 CR 718.,80 CR 718. |
| Citation | 551 F. Supp. 1194 |
| Parties | UNITED STATES of America, Plaintiff, v. Jean Marie SUQUET, et al., Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
John Sullivan, Asst. U.S. Atty., Chicago, Ill., for plaintiff.
William H. Theis, Chicago, Ill., for defendant Bounos.
James M. Shellow, Milwaukee, Wis., Frank W. Oliver, Northfield, Ill., for defendant Browning.
The facts underlying this case have been set forth at length in my previous decisions rejecting defendants' claims of wiretap abuse and double jeopardy violation. See United States v. Suquet, 547 F.Supp. 1034 (N.D.Ill.1982) (wiretap); United States v. Suquet, No. 80 CR 718 (N.D.Ill. August 23, 1982), affd. sub nom. United States v. Bounos, 693 F.2d 38 (7th Cir.1982) (double jeopardy). Knowledge of these facts will for the most part be presumed.
This memorandum opinion seeks to explain why the court previously denied various defense motions. Two of these motions ask for dismissal of the entire indictment. Two others request dismissal of particular counts.
Defendant Michael Bounos seeks dismissal of the indictment on grounds of prosecutorial vindictiveness. He alleges he was indicted in September 1980 in case number 80 CR 490 on charges of participating in a 1980 cocaine conspiracy. The case was assigned to Judge Nicholas J. Bua of the Northern District of Illinois. Bounos 1
In December 1980 the present 71 count indictment was handed down. It deals with a 1978-79 cocaine conspiracy and subjects Bounos to the possibility of "extra decades of punishment" over and above that which was already threatened by the indictment in 80 CR 490. Therefore, Bounos charges, it must be presumed that the present indictment was sought solely to induce Bounos to plead guilty in 80 CR 490, i.e., to retaliate "against a defendant who insisted upon his constitutional right to be proven guilty beyond a reasonable doubt." (Quotations from defendant's brief). Such vindictiveness, Bounos concludes, is impermissible under the Due Process clause of the Fifth Amendment.
What is most striking about this argument is that Bounos has brought forth no evidence of "actual" vindictiveness. He can therefore prevail "only if a presumption of vindictiveness — applicable in all cases — is warranted." United States v. Goodwin, ___ U.S. ___, ___, 102 S.Ct. 2485, 2493, 73 L.Ed.2d 74 (1982) (emphasis in original). It is not. "Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978) made clear that the mere fact that a defendant refuses to plead guilty and forces the Government to prove its case is insufficient to warrant a presumption that subsequent changes in the charging decision are unjustified." United States v. Goodwin, supra, 102 S.Ct. at 2494. The filing of pre-trial motions is routine and expected in criminal cases; it is therefore "unrealistic to assume that a prosecutor's probable response to such motions is to seek to penalize and to deter." Id. at 2493.
Defendant John Browning urges dismissal of the indictment on the theory that the statutes relied upon by the Government are defective. Browning asserts that the Controlled Substances Act ("the Act") embodies an unconstitutional delegation of legislative power. He further charges that cocaine cannot rationally remain classified as a Schedule II substance, given the current state of scientific knowledge. I will discuss each of these contentions in turn.
The Act criminalizes various forms of conduct involving "controlled substances." 21 U.S.C. §§ 841-48. Controlled substances are subdivided into five schedules, each pertaining to a different category of drug. Id. at § 812. The penalties imposed by sections 841-48 vary according to the schedule of the drug involved.
Section 812(c) lists the drugs that were deemed to fall within each schedule at the time of the Act's enactment in 1970. Congress recognized, however, that evolving medical and social knowledge might render its initial judgments obsolete. Therefore, to create an updating mechanism, Congress delegated to the Attorney General the following authority:
Id. at § 811(a). The Attorney General has sub-delegated his authority under section 811(a) to the Administrator of the Drug Enforcement Agency ("the Administrator"). 28 C.F.R. § 0.100.
Because of the interrelationship between section 811, on the one hand, and sections 841-48, on the other, the Administrator can in effect declare certain conduct criminal. When the Administrator rules, for example, that a newly-discovered substance should be controlled, dealings in that substance automatically become forbidden.
It is well established, however, that Congress can delegate to an administrative official the task of "filling in the details" of a criminal statute. In United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563 (1911), the Supreme Court upheld a conviction for violating a regulation promulgated by the Secretary of Agriculture. The Court noted that the Forest Reserve Act of 1891 — the statute conferring the Secretary's authority — expressly stated that "any violation of ... such rules and regulations shall be punished." Thus, in the Court's view, Congress had retained its sovereign power over the federal criminal code:
A violation of reasonable rules regulating the use and occupancy of the property is made a crime, not by the Secretary, but by Congress. The statute, not the Secretary, fixes the penalty.
Id. at 522, 31 S.Ct. at 485. Similarly, here, Congress determined that certain dealings in controlled substances would be criminal. There was nothing per se improper in Congress' granting the executive branch the power to determine exactly which chemicals satisfy the statutory requirements for control.
Browning has made basically three attempts to distinguish Grimaud, none of which is persuasive. First, he claims that Grimaud legitimates delegations only when they are made to implement "a valid federal regulatory function." How he could possibly think that this requirement is not satisfied here is completely baffling. Second, he argues that Grimaud does not justify a delegation under which the executive determines not only which particular transactions are criminal, but also the penalties to be imposed. As a matter of abstract law, Browning may well have a point. Grave constitutional questions would be present if Congress had legislated the following law:
Distribution of any substance determined by the Administrator to meet the requirements for control established herein shall be illegal. The penalty for such distribution shall be as the Administrator provides by rule.
See Gelhorn, Administrative Prescription and Imposition of Penalties, 1970 Wash.U. L.Q. 265, 268-71; see also United States v. Batchelder, 442 U.S. 114, 125-26, 99 S.Ct. 2198, 2204-05, 60 L.Ed.2d 755 (1979). The Controlled Substances Act, however, is quite clearly of a different mold. Congress did not grant the Administrator the power to determine which penalties should be imposed upon which sorts of generic violations (e.g., possession with intent to distribute a Schedule II substance). Congress itself made these determinations. The Administrator was authorized to do nothing more than determine which substances belong within which Schedule. This is entirely permissible under Grimaud.
Browning's rejoinder seems to be that because the Administrator can pick from among five schedules, and because the statutory penalties vary by Schedule, the Administrator has in reality a great deal of control over the punishment levied on a given transaction. This claim fails for at least two reasons. First, the Administrator cannot list a substance under whichever schedule he desires. In sections 812(b)(1)-(5) Congress set forth detailed criteria substantially curtailing the Administrator's discretion. See infra. Moreover, whatever discretion the Administrator retains is inevitable in a Grimaud situation. In Grimaud, it was within the Secretary's discretion to forbid sheep grazing on the Sierra Forest Reserve without a permit. Presumably, at this level of detail, it was also within the Secretary's authority to hold to the contrary. The Secretary therefore had the implicit power to pick the punishment — either nothing or whatever the Forest Reserve Act provided — associated with such grazing. Similarly here, to the extent that a given substance...
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