Appendix — Coletta v. United States

APPENDIX A

United States Court of Appeals

For the Ninth Circuit

United States of America,

Defendants.

)

)

)

Plaintiff, ) Nos.

) 81-1607x

v. ) 81-1608x

) 81-1609 X

Michael Warren Coletta, ) 81-1610x

John A. Wilms, )

Herve Bitton, ) DC No.

Hernan Castro, ) CR-81-

) 0157-SAW

)

)

[Filed July 29, 1982]

Before: WALLACE and HUG, Circuit Judges,

BROWN*, District Judge.

HUG, Circuit Judge:

Michael Coletta, John Wilms,

Herve Bitton, and Hernan Castro appeal

their convictions for violations of the

* The Honorable Wesley E. Brown, Senior United

States District Judge for the District of Kansas,

sitting by designation.

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Drug Abuse Prevention and Control Act, 21

U.S.C. §$$801-966. Appellants sought

dismissal of the indictment because of

alleged irregularities in the selection

of forepersons for grand juries empaneled

in the Northern District of California.

They now appeal the district court's

ruling that they lack standing to alleged

discrimination in the selection of

forepersons. Appellants also contend

that the failure of the Drug Enforcement

Administration to review the controlled

substance status of cocaine gave rise to

due process violations that required

dismissal of the indictment. Two of the

appellants claim the district court

admitted evidence seized in violation of

their fourth amendment rights. Finally,

Castro seeks a remand for resentencing,

arguing that his constitutional and

statutory rights were violated at the

sentencing hearing.

FACTS

The indictment charged the

appellants with conspiracy to distribute

cocaine. They waived their rights to

jury trial, and submitted the case to the

district judge on stipulated facts. The

stipulations showed that Robert Prezioso,

a Drug Enforcement Agency special agent,

purchased one ounce of cocaine from

Hernan Castro and his cousin, Carlos

Castro,+/ in March, 1981. The Castros

advised Prezioso they could provide

larger quantities of cocaine. It was

agreed that the Castros would arrange for

the sale of eight kilograms of cocaine,

for which Prezioso would pay $500,000.

On the day of the sale,

Prezioso drove with Hernan Castro to a

bank, where Castro was permitted to view

Y carlos Castro was indicted with

appellants. He is mt a party to this appeal.

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and count the $500,000 in cash.

Satisfied with Prezioso's ability to pay,

Castro signaled his co-conspirators that

Prezioso's partner should be allowed to

examine the cocaine. The partner, Drug

Enforcement ’7,gency informant Raymond

Angelone, went to the Castros“ apartment,

where he met John Wilms and Herve Bitton.

Bitton took Angelone to Michael Coletta's

apartment, where Coletta showed Angelone

a brown travel bag filled with eight

plastic bags of cocaine. Angelone tested

the drugs and advised Coletta that he was

satisfied with their quality and that the

transaction could proceed. Coletta

returned the cocaine to the travel bag

and zipped the bag. Coletta and Angelone

then drove to Coletta's car to the

Castros“ apartment, where they were to

meet Prezioso and complete the

transaction.

Angelone's uncontroverted

testimony at the suppression hearing was

—

ö

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that as he and Coletta waited, Angelone

got into the back seat carrying a second

travel bag. Pursuant to his

instructions, he unzipped Coletta's bag,

and prepared to transfer the cocaine to

the empty bag. Coletta insisted Angelone

leave the cocaine in his travel bag, and

Angelone, leaving both bags unzipped,

returned to the front seat.

Wilms approached Prezioso's

car, confirmed the presence of the cash,

and indicated to Coletta that the

exchange could take place. Prezioso then

gave surveilling agents an arrest signal,

and all four appellants were arrested at

the scene.

Based on these stipulated

facts, each of the appellants was

convicted of conspiracy to distribute

cocaine. 21 U.S.C. 58841 (a) (J) and 846.

A lawful search of Coletta's apartment

after his arrest yielded an additional

sixteen ounces of cocaine, which resulted

A-6

in his conviction for possession of

cocaine with intent to distribute. 21

U.S.C. 8841 (a) (1).

11

SELECTION OF GRAND JURY

FOREPERSONS

Appellants filed a pretrial

motion for dismissal of the indictment on

the basis of alleged irregularities in

the jury selection process in the

Northern District of California. They

contended that the procedure employed to

appoint grand jury forepersons did not

require random selection, but allowed

discretion in the choice of a foreperson.

Abuse of that discretion was claimed to

result in the appointment of a

disproportionate number of Caucasian

males. Appellants viewed this alleged

discrimination as a violation of their

A-7

constitutional rights.2/

The district court held that

the appellants, as Caucasian males,

lacked standing to allege discrimination

against women and minorities. Further

discovery on the issue was precluded, and

appellants’ request for an evidentiary

3/

hearing was denied. Appellants

challenge this preclusion, and seek a

A-8

remand for an evidentiary hearing on the

issue.

Appellants’ challenge to the

procedures employed to select grand jury

forepersons is based upon Rose v.

Mitchell, 443 U.S. 545, 99 S.Ct. 2993, 61

L.Ed.2d 739 (1979), in which the Supreme

Court held that black defendants who

alleged systematic exclusion of blacks

from appointment as forepersons of state

grand juries stated a claim under the

equal protection clause. Appellants

understand Rose as authorizing broad

challenges to the foreperson selection

process by all criminal defendants. In

asserting their standing to raise this

[Continuation of fn. 3.]

Our examination of the transcript

reveals no such waiver. Clearly appellants

P

terminated with the ruling on standing. We view

that

protection might support appellants’ foreperson

claim, and as an invitation to pursue one of

those alternate theories.

A-9

claim, appellants rely on Peters v. Kiff,

407 U.S. 493, 504, 92 S.Ct. 2163, 2169,

33 L.Ed.2d 83 (1972). In that case

Peters, a white male, alleged that the

grand jury that indicted him and the

petit jury that convicted him were

empaneled under procedures that excluded

blacks. The Court held Peters had

standing to state these claims: “whatever

his race, a criminal defendant has

standing to challenge the system used to

select his grand or petit jury, on the

ground that it arbitrarily excludes from

service the members of any race

Appellants’ theory, that Peters

grants them standing to seek dismissal of

their indictment under Rose, fails to

distinguish the constitutional bases of

these two cases. The Peters defendant

alleged a due process violation. In

concluding that Peters, a white male, had

standing to challenge exclusion of blacks

from grand and petit juries, the Court

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reasoned that the exclusion of a

discernible class from jury service

injured not only the specific defendant,

but the integrity of the jury system.

Due process was violated if the jury

failed to reflect "a representative cross

section of the community." 407 U.S. at

500, 92 S.Ct. at 2107. The

irregularities in jury selection thus

threatened injury to Peters“! s personal

rights under the due process clause.

In contrast, the defendants in

Rose alleged that discrimination against

their race in selection of foreperson

violated their rights under the equal

protection clause. Their claims

implicated not only general societal

interest in the integrity of the judicial

system, but also a “personal

constitutional right" not to be subject

to irrational and discriminatory

classifications. Rose, 443 U.S. at

561-62, 99 S.Ct. at 3003, contrasting

A-11

Stone v. Powell, 428 U.S. 465, 96 S.Ct.

3037, 49 L. Ed. 2d 1067 (1976). In order

to enforce that right, each defendant was

required to “show that the procedure

employed resulted in substantial

underrepresentation of his race or of the

identifiable group to which he belongs."

Id. at 565, 99 S.Ct. at 3005, quoting

Castaneda v. Partida, 430 U.S. 482, 494,

97 S.Ct. 1272, 1280, 51 L.Ed.2d 498

(1977) (emphasis added). Rose, applying

a traditional equal protection analysis,

thus holds that in order to assert an

equal protection claim plaintiffs must be

members of the excluded group. See

Alexander v. Louisiana, 405 U.S. 625,

633, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536

(1972) (Black male's allegation of

exclusion of blacks from grand jury

states equal protection claim; allegation

of exclusion of women distinguished) ;

Hernandez v. Texas, 347 U.S. 475, 477, 74

S.Ct. 667, 669, 98 L.Ed. 866 (1954)

A-12

("denial of equal protection. to try a

defendant of a particular race or color

under an indictment issued by a grand

jury ... from which all persons of his

race or color have ... been excluded.)

But see United States v. Perez-Hernandez,

672 F.2d 1380, 1386 (llth Cir. 1982)

(membership in excluded group not

required to bring equal protection

claim).

Appellants have not shown that

any group of which they are members has

been excluded from the foreperson

selection process. They have experienced

no injury to their personal rights to

equal protection, and they lack standing

to assert the equal protection rights of

the women and minorities who may have

been excluded. Warth v. Seldin, 422 U.S.

490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d

343 (1974); Halet v. Wend Investment Co.,

672 F.2d 1305, 1308 (9th Cir. 1982).

Under Peters, these appellants

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do have standing to challenge the

selection procedures as due process

violations. We conclude, however, that

appellants’ allegations are insufficient

to state a claim under the due process

clause. Perhaps under some circumstances

systematic discrimination in the

appointment of grand jury forepersons

would so imperil the integrity of the

jury system that the resulting

indictments and convictions would be

fundamentally unfair. However, these

appellants have failed to suggest how the

selection of one person, serving on a

correctly constituted panel, could have a

significant impact on the basic fairness

of the process.

Appellants have no standing to

challenge the selection of forepersons as

an equal protection violation. Their

allegations are insufficient to imply a

due process violation. The district

court was correct in denying their motion

Pt 2

A-14

to dismiss.

111

CLASSIFICATION OF COCAINE

The Drug Abuse Prevention and

Control Act, 21 U.S.C. §811, authorizes

the Attorney General to review the

classification of substances listed in

section 812 of the Act. Where

consideration of scientific and medical

evidenze and evaluation of drug abuse

factors suggest to the Attorney General

that a drug is misclassified, he may

promulgate regulations to remove a drug

from the classification schedules or to

move it from one schedule to another.

Section 841 of the Act specifies the

penalties prescribed for drug offenses in

terms of the drug's classification under

section 812. It is appellants’ theory

that the interplay of these provisions

renders the indictment under which they

were charged constitutionally infirm.

The district court correctly refused to

A-15

dismiss the indictment on this basis.

By moving a controlled

substance from one schedule to another,

the Attorney General necessarily alters

the penalties that result from unlawful

possession or distribution of that

substance. Appellants view this as an

unconstitutional delegation of

legislative authority, in that

administrative officials may determine

the consequences of statutory violations.

This court recently considered and

rejected that argument. United States v.

Alexander, 673 F.2d 287, 289 (9th Cir.

1982).

Next appellants contend that

the Attorney General's failure to

reclassify cocaine or remove it from the

section 812 schedules constitutes an

abuse of discretion and renders the

penalty for cocaine offenses

unconstitutionally vague. Even if we

were to assume that, as appellants argue,

A-16

scientific evidence supports the

reclassification of cocaine, that

evidence would not mandate

reclassification. Removing a substance

from its section 812 schedule requires

consideration of, inter alia, the drug's

effect on the public health and its

potential for abuse. Section 8ll(c). In

view of these factors, the failure to

reclassify cocaine is neither irrational

nor an abuse of discretion. Alexander,

673 F.2d at 288.

Because of our conclusions here

and in Alexander, the district court's

refusal to consider the scientific

evidence proffered by appellants or to

hold an evidentiary hearing was not

error.

IV

SEARCH OF TRAVEL BAG

Coletta was arrested as he sat

in his car waiting for the exchange of

the cocaine for the money. As the Drug

A-17

Enforcement Agency officers approached

the car, Coletta started the engine.

Agent Prezioso instructed Coletta to stop

the car, arrested him, and removed him

from the vehicle. Prezioso then reached

into the back seat and seized two travel

bags. One bag, placed in the car by

Angelone, was empty. The other,

Coletta's travel bag, contained the eight

kilograms of cocaine.

Coletta contended Prezioso's

warrantless entry into the vehicle and

removal of Coletta's bag constituted an

unlawful search and seizure. He sought

suppression of the cocaine. After an

evidentiary hearing, the district judge

denied the motion. Although no findings

were made, the denial appears to have

been based on the application of the

plain view doctrine.

Agents Prezioso and Plattos, as

well as the informant, Angelone,

testifiec at the hearing that Coletta's

A-18

bag was partially unzipped and its

contents visible. Coletta testified that

before leaving his apartment, he covered

the cocaine with a towel and zipped the

bag shut. He also stated that as he

waited for the exchange, he transferred

the bag from the back seat to the car's

rear floor, so that the cocaine would not

have been in plain view. It would appear

that implicit in the district judge's

denial of the suppression motion was a

finding that he believed the testimony of

the agents and Angelone and discredited

that of Coletta. This credibility

determination will not be disturbed on

appeal. See United States v. Harrington,

636 F.2d 1182, 1185 (9th Cir. 1980)

(denial of suppression motion to he

upheld if reasonable view of evidence

supports it).

In addition, the Supreme Court

recently held that the warrantless seerch

of a vehicle and search and seizure of

A-19

its contents are lawful where officers

have legitimately stopped the vehicle and

they have probable cause to believe it

contains contraband. United States v.

Ross, U.S. 0 , 102 S. ct. 2157,

2173, 72 L. Ed. 2d 411982). Because the

agents had probable cause to arrest

Coletta, their stop of his vehicle vas

legitimate. Agent Prezioso had been

informed by Castro that they would be met

at the Castros“ apartment by the

suppliers, who would have the cocaine.

He observed Coletta and Angelone in

Coletta's car. After Wilms confirmed to

Coletta the presence of the money,

Prezioso unn the money over to Castro

and was instructed by Castro to walk to

Coletta's car to complete the exchange.

Without question, these facts provided

probable cause to believe the cocaine was

in the car and therefore justified the

warrantless search of the car. In

addition, the remaining requirements

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imposed by Ross are satisfied. The

officers anticipated that the drugs would

be in Angelone's bag, rather than

Coletta's; therefore, probable cause to

search was not limited to a specific

eontainer. Id at 6 n. 22, 102 S.Ct.

at 2168 & n.22. The bag was of such a

size and shape that it was likely to

contain the drugs. Id. at 102 S.Ct.

at 2169. The search and seizure of the

bags were lawful, and the district court

correctly denied the motion to

suppress. “

4/ At oral argument before this panel,

States v. , 656 F. 2d 1302 (9th Cir. 1981),

vaca’ 8. „ 102 S.Ct. 2919, 72 L. M. 2d

(1982) (; for consideration in light

comprised the challenged search, rather than the

Ross authorizes only searches made incident to an

arrest.

A-21

V

SEARCH OF BITTON'S APARTMENT

Following appellants’ arrests,

a warrant was issued for the search of

Bitton's apartment. Bitton claimed that

the agents requesting the warrant had

failed to establish a nexus between

Bitton's home and the crime with which he

was charged. Because of this failure, he

reasoned there was not probable cause to

believe that the drugs and drug

paraphernalia listed in the warrant could

be found in Bitton's apartment. He

contended this lack of probable cause

required invalidation of the warrant and

suppression of all evidence seized in the

apartment. The district court denied the

suppression motion.

This court does not review

motions to suppress as abstract legal

theories divorced from the facts of the

cass. When Bitton's legal argument is

tied to the pertinent facts, its lack of

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merit is patent. Before this court,

Bitton identified only one specific item

of evidence seized from his apartment: a

packing carton for a pistol. This item

is totally without evidentiary

significance. Bitton stipulated that

he was carrying a pistol on the day of

the transaction, and there was more than

ample evidence of Bitton's participation

in the conspiracy. The district court's

failure to suppress this evidence, if

erroneous, was harmless beyond any doubt.

See United States v. Hackett, 638 F.2d

1179, 1186 (9th Cir. 1980), cert. denied,

450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d

203 (1981); United States v. Gulma, 563

F.2d 386, 390 n.3 (9th Cir. 1977). We

therefore need not consider Bitton's

/ Bitton was indicted for violation of

18 U.S.C. §924(c) (1), in addition to the

conspiracy charge. The count alleging use of a

firearm was dismissed. Even if Bitton had been

prosecuted on that charge, the evidentiary value

of the packing carton is difficult to perceive.

A-23

challenge to the warrant.

VI

REFUSAL TO CONTINUE

SENTENCING

Following the verdicts, Castro

discharged his trial attorney, who had

failed to secure Castro's release on bail

pending sentencing. The new attorney,

appointed September 8, moved on September

18 for a two-week continuance of the

sentencing, then set for September 23.

The ettorney did not interview Castro

prior to September 23. He stated at the

sentencing hearing that he was unfamiliar

with Castro's background and the facts of

the case, and that he had not seen the

presentence report.

The district court denied the

motion for a continuance and proceeded

with sentencing, after assuring Castro's

attorney that the court would be

receptive to a motion for modification of

judgment, if the attorney's review of the

A-24

case uncovered grounds for such a motion.

The judge instructed the probation

department to make the presentence report

available. The attorney agreed that this

procedure was satisfactory.“

Castro now claims denial of a

continuance violated due process, his

right to counsel, and the requirements of

Fed.R.Crim.P. 32 (c (3) (A). He seeks a

remand for resentencing.

Castro alleges

Fed.R.Crim.P.32(c) (3) (A) was violated

because his attorney did not see the

presentence report prior to sentencing.

That rule provides in Part:

Before imposing sentence the

court shall upon request permit

the defendant, or his counsel

if he is so represented, to

read the report of the presence

investigative exclusive of any

recommendation as to sentence,

+++? and the court shall afford

the defendant or his counsel an

opportunity to comment thereon

and, at the discretion of the

court, to introduce testimony

or other information relating

to any alleged factual

inaccuracy contained in the

A-25

presentence report.

The court is required to disclose the

report only if the defendant requests

disclosure. United States v. Winn, 577

F.2d 86, 92 (9th Cir. 1978). Castro's

attorney made no such request prior to

the sentencing hearing. His inability to

review the report thus resulted from his

own failure to act, not from the judge's

refusal to grant a continuance.

Fed.R.Crim.P.32 was not violated.

Castro claims that the result

of the denial of a continuance was to

render his attorney unable to effectively

comment on the report, thus depriving

Castro of his rights to counsel and due

process. The due process clause does not

require disclosure of the presentence

report. Williams v. New York, 337 U.S.

241, 249-51, 69 S.Ct. 1079, 1084-85, 93

L.Ed. 1337 (1949). Due process does

require that the sentencing judge listen

A-26

to and fairly consider information

material to mitigation of punishment.

United States v. Doe, 655 F. 2d 920, 927

(9th Cir. 1981); see also United States

v. Wolfson, 634 F.2d 1217, 1221-22 (9th

Cir. 1980). Castro has not demonstrated

that the procedure adopted by the

district court failed to satisfy this

requirement. Both Castro and his

attorney were given an opportunity to

address the court prior to sentencing.

Castro does not question the judge's

assurance that he would consider

mitigating evidence submitted after

sentencing. Nor does he suggest that the

report contained unfair or unsupported

allegations. See United States v.

Weston, 448 F.2d 626, 634 (9th Cir.

1971), cert. denied, 404 U.S. 1061, 92

S. Ct. 748, 30 L.Ed.2d 749 (1972)

(information in presentence report must

be sufficient to be persuasive of

validity of charges made in report). We

A-27

therefore conclude that the judge's

refusal to grant a continuance,

especially in view of the procedure he

adopted, did not threaten any of Castro's

constitutionally protected interests.

Each of the convictions is

AFFIRMED.

7

APPENDIX B

United states Court of Appeals

For The Ninth Circuit

United States of America,

Plaintiff,

v.

Michael Warren Coletta,

John A. Wilms,

Herve Bitton,

Hernan Castro,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

Nos.

81-1607x

81-1608xX

81-1609X

81-1610xX

D. C. No.

CR-81-

0157-SAW

[Filed September 2, 1982]

ORDER

Before: WALLACE and HUG, Circuit

Judges, BROWN*, District Judge.

The panel, as constituted in

the above case, has voted to deny the

petition for rehearing.

The petition for rehearing is

denied.

* The Honorable

E. Brown, Senior United

Wesley

States District Judge for the District of Kansas,

citting by designation.

APPENDIX C

§ 811. Authority and criteria for classification of substances

—Rules and regulations of Attorney General:

hearing

(a) The Attorney General shall apply the provisions of

this subchapter to the controlled substances listed in the

schedules established by section 812 of this title and to any

other drug or other substance added to such schedules

under this subchapter. Except as provided in subsections

(d) and (e) of this section, the Attorney General may by

rule—

(1) add to such a schedule or transfer between such

schedules any drug or other substance if he—

(A) finds that such drug or other substance has a

potential for abuse, and

(B) makes with respect to such drug or other sub-

stance the findings prescribed by subsection (b) of

section 812 of this title for the schedule in which

such drug is to be placed;

or

(2) 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.

Rules of the Attorney General under this subsection shall

be made on the record after opportunity for a hearing pur-

suant to the rulemaking procedures prescribed by sub-

chapter II of chapter 5 of Title 5. Proceedings for the issu-

ance, amendment, or repeal of such rules 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.

C -2

Evaluation of drugs and other substances

(b) The Attorney General shall, before initiating pro-

ceedings under subsection (a) of this section to control a

drug or other substance or to remove a drug or other sub-

stance 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 evalua-

tion 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

shall include recommendations with respect to the appro-

priate schedule, if any, under which such drug or other

substance should be listed. The evaluation and the recom-

mendations of the Secretary shall be made in writing and

submitted to the Attorney General within a reasonable time.

The recommendations of the Secretary to the Attorney

General shall be binding or the Attorney General as to

such scientific and medica! matters, and if the Secretary

recommends that a drug or other substance not be con-

trolled, the Attorney General shall not control the drug or

other substance. If the Attorney Genera] determines that

these facts and all other relevant data constitute substan-

tial evidence of potential for abuse such as to warrant

control or substantial evidence that the drng or other sub-

stance 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.

C-3

Factors determinative of control or

removal from schedules

(c) In making any finding under subsection (a) of this

section or under subsection (b) of section 812 of this title,

the Attorney General shall consider the following factors

with respect to each drug or other substance proposed to

be controlled or removed from the schedules:

(1) Its actual or relative potential for abuse.

(2) Scientific evidence of its pharmacological effect,

if known.

(3) The state of current scientific knowledge regard-

ing 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 precur-

sor of a substance already controlled under this sub-

chapter.

International treaties, conventions, and protocols

requiring control; procedures respecting changes

in drug schedules of Convention on Psychotropic

Substances

(d)(1) If control is required by United States obliga-

tions under international treaties, conventions, or proto-

cols in effect on the effective date of this part, the Attor-

ney General shall issue an order controlling such drug

under the schedule he deems most appropriate to carry out

such obligations, without regard to the findings required

by subsection (a) of this section or section 812(b) of this

C~4

title and without regard to the procedures prescribed by

subsections (a) and (b) of this section.

(2)(A) Whenever the Secretary of State receives notifi-

cation from the Secretary-General of the United Nations

that information has been transmitted by or to the World

Health Organization, pursuant to article 2 of the Conven-

tion on Psychotropic Substances, which may justify add-

ing a drug or other substance to one of the schedules of

the Convention, transferring a drug or substance from

one schedule to another, or deleting it from the schedules,

the Secretary of State shall immediately transmit the no-

tice to the Secretary of Health, Education, and Welfare

who shall publish it in the Federal Register and provide

opportunity to interested persons to submit to him com-

ments respecting the scientific and medical evaluations

which he is to prepare respecting such drug or substance.

The Secretary of Health, Education, and Welfare shall

prepare for transmission through the Secretary of State

to the World Health Organization such medical and scien-

tific evaluations as may be appropriate regarding the pos-

sible action that could be proposed by the Wor!d Health

Organization respecting the drug or substance with re-

spect to which a notice was transmitted under this sub-

par graph.

(B) Whenever the Secretary of State receives informa-

tion that the Commission on Narcotic Drugs of the United

Nations proposes to decide whether to add a drug or other

substance to one of the schedules of the Convention, trans-

fer a drug or substance from one schedule to another, or

delete it from the schedules, the Secretary of State shall

C-5

transmit timely notice to the Secretary of Health, Edu-

cation, and Welfare of such information who shall pub-

lish a summary of such information in the Federal Regis-

ter and provide opportunity to interested persons to submit

to him comments respecting the recommendation which he

is to furnish, pursuant to this subparagraph, respecting

such proposal. The Secretary of Health, Education, and

Welfare shall evaluate the proposal and furnish a rec-

ommendation to the Secretary of State which shall be

binding on the representative of the United Sates in dis-

cussions and negotiations relating to the proposal.

(3) When the United States receives notification of a

scheduling decision pursuant to article 2 of the Conven-

tion on Psychotropic Substances that a drug or other sub-

stance has been added or transferred to a sc’ edule speci-

fied in the notification or receives notification (referred

to in this subsection as a “schedule notice”) that existing

legal controls applicable under this subchapter to a drug

or substance and the controls required by the Federal

Food, Drug, and Cosmetics Act do not meet the require-

ments of the schedule of the Convention in which such

drug or substance has been placed, the Secretary of Health,

Education, and Welfare, after consultation with the Attor-

ney General, shall first determine whether existing legal

controls under this subchapter applicable to the drug or

substance and the controls required by the Federal Food,

Drug, and Cosmetics Act, meet the requirements of the

schedule specified in the notification or schedule notice and

shall take the following action:

(A) If such requirements are met by such eristing

controls but the Secretary of Health, Education, and

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Welfare nonetheless believes that more stringent con-

trols should be applied to the drug or substance, the

Secretary shall recommend to the Attorney General

that he initiate proceedings for scheduling the drug

or substance, pursuant to subsections (a) and (b) of

this section, to apply to such controls.

(B) If such requirements are not met by such exist-

ing controls and the Secretary of Health, Education,

and Welfare concurs in the scheduling decision or

schedule notice transmitted by the notification, the

Secretary shall recommend to the Attorney General

that he initiate proceedings for scheduling the drug

or substance under the appropriate schedule pursuant

to subsections (a) and (b) of this section.

(C) If such requirements are not met by such exist-

ing controls and the Secretary of Health, Education,

and Welfare does not concur in the scheduling deci-

sion or schedule notice transmitted by the notification,

the Secretary shall—

(i) if he deems that additional controls are neces-

sary to protect the public health and safety, rec-

ommend to the Attorney General that he institute

proceedings for scheduling the drug or substance

pursuant to subsections (a) and (b) of this section,

to apply such additional controls;

(ii) request the Secretary of State to transmit a

notice of qualified acceptance, with the period speci-

filed in the Convention, pursuant to paragraph 7

of article 2 of the Convention, to the Secretary-

General of the United Nations;

(iii) request the Secretary of State to transmit

a notice of qualified acceptance as prescribed in

clause (ii) and request the Secretary of State to ask

for a review by the Economie and Social Council of

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the United Nations, in accordance with paragraph 8

of article 2 of the Convention, of the scheduling

decision ; or

(iv) in the case of a schedule notice, request the

Secretary of State to take appropriate action under

the Convention to initiate proceedings to remove the

drug or substance from the schedules under the

Convention or to transfer the drug or substance to

a schedule under the Convention different from the

one specified in the schedule notice.

(4)(A) If the Attorney General determines, after con-

sultation with the Secretary of Health, Education, and

Welfare, that proceedings initiated under recommendations

made under paragraph (B) or (C)(1) of paragraph (3)

will not be completed within the time period required by

paragraph 7 of article 2 of the Convention, the Attorney

General, after consultation with the Secretary and after

providing interested persons opportunity to submit com-

ments respecting the requirements of the temporary order

to be issued under this sentence, shall issue a temporary

order controiiine the drug or substance under schedule IV

or V, whichever is most appropriate to carry out the mini-

mum United States obligations under paragraph 7 of ar-

ticle 2 of the Convention. As a part of such order, the At-

torney General shall, after consultation with the Secretary,

except such drug or substance fr m the application of any

provision of part C of this subchapter which he finds is not

required to carry out the United States obligations under

paragraph 7 of article 2 of the Convention. In the case of

proceedings initiated under subparagraph (B) of para-

graph (3), the Attorney General, concurrently with the

issuance of such order, shall request the Secretary of State

c-8

to transmit a notice of qualified acceptance to the

Secretary-General of the United Nations pursuant to para-

graph 7 of articie 2 of the Convention. A tempvrary order

issued under this subparagraph controlling a drug or other

substance subject to proceedings initiated under subsec-

tions (a) and (b) of this section shall expire upon the effec-

tive date of the application to the drug or substance of

the controls resulting from such proceediugs.

(B) After a notice of qualified acceptance of a schedul-

ing decision with respect to a drug or other substance is

transmitted to the Secretary-General of the United Nations

in accordance with clause (ii) or (iii) of paragraph (3) (C)

or after a request has been made under clause (iv) of such

paragraph with respect to a drug or substance described

in a schedule notice, the Attorney General, after consulta-

tion with the Secretary of Health, Education, and W fare

and after providing interested persons opportunity to

submit comments respecting the requirements of the order

to be issued under this sentence, shall issue an order con-

trolling the drug or substance under schedule IV or V,

whichever is most appropriate to carry out the minimum

United States obligations under paragraph 7 of article 2

of the Convention in the case of a drug or substance for

which a notice of qualified acceptance was transmitted or

whichever the Attorney General determines is appropriate

in the case of a drug or substance described in a schedule

notice. As a part of such order, the Attorney General shall,

after consultation with the Secretary, except such drug

or substance from the application of any provision of

part C of this subchapter which he finds is not required to

carry ou the United States ohligations under paragraph 7

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of article 2 of the Convention. If, as a result of a review

under paragraph 8 of article 2 of the Convention of the

scheduling decision with respect to which a notice of qual-

ified acceptance was transmitted in accordance with

clause (ii) or (iii) of paragraph (3)(C)—

(i) the decision is reversed, and

(ii) the drug or substance subject to such decision

is not required to be controlled under schedule IV or

V to carry out the minimum United States obligations

under paragraph 7 of article 2 of the Convention.

the order issued under this subparagraph with respect to

such drug or substance shall expire upon receipt by the

United States of the review decision. If, as a result of

action taken pursusc‘! «> action initiated under a request

transmitted under ela. e (iv) of paragraph (3) (C), the

drug or subsiance with respect to which such action was

taken is not required to be controlled under schedule IV

or V, the order issued under this paragraph with respect

to such drug or substance shall expire upon receipt by the

United States of a notice of the action taken with respect

to such drug or substance under the Convention.

(C) An order issued under subparagraph (A) or (B)

may be issued without regard to the findings required by

subsection (a) of this section or by section 312(b) of this

title and without regard to the procedures prescribed by

_ subsection (a) or (b) of this section.

(5) Nothing in the amendments made by the Psycho-

tropic Substances Act of 1978 or the regulations or orders

promulgated thereunder shall be construed to preclude

requests by the Secretary of Health, Education, and Wel-

c-10

fare or the Attorney General through the Secretary of

State, pursuant to article 2 or other applicable provisions

of the Convention, for review of scheduling decisions

under such Convention, based on new or additional in-

formation.

Immediate precursors

(e) The Attorney General may, without regard to the

findings required by subsection (a) of this section or section

812(b) of this title and without regard te the procedures

prescribed by subsections (a) and (b) of this section, place

an immediate precursor in the same schedule in which the

controlied substance of which it is an immediate precursor

is placed or in any other schedule with a higher numerical

designation. If the Attorney General designates a substance

as an immediate precursor and places it in a schedule,

other substances shall not be placed in a schedule solely

because they are its precursors.

Abuse potential

(f) If, at the time a new-drug application is submitted

to the Secretary for any drug having a stimulant, depres-

sant, or hallucinogenic effect on the central nervous sys-

tem, it appears that such drug has an abuse potential, such

information shall be forwarded by the Secretary to the

Attorney General.

Non-narcotic substances sold over the counter without a

prescription: dextromethorphan

(g)(1) The Attorney General shall by regulation exclude

any non-narcotic substance from a schedule if such sub-

stance may, under the Federal Food, Drug, and Cosmetic

C11

Act, be lawfully sold over the counter without a pre-

scription.

(2) Dextromethorphan shall not be deemed to be in-

cluded in any schedule by reason of enactment of this sub-

chapter unless controlled after the date of such enactment

pursuant to the foregoing provisic 1s of this section.

§ 812. Schedules of controlled substances—Establishment

(a) 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 a semi-annual

basis dnring the two-year period beginning one year after

the date of enactment of this subchapter and shall be up-

dated and republished on an annual basis thereafter.

Placement on schedules; findings required

(b) Except where control is required by United States

obligations under an international treaty, convention, or

protocol, in effect on the effective date of this part, and

except in the case of an immediate precursor, a drug or

other substance may not be placed in any schedule unless

the findings required for such schedule are made with re-

spect to such drug or other substance. The findings re-

quired for each of the schedules are as follows:

(1) Schedule L— ©

(A) The drug or other substance has a high poten-

tial for abuse.

(B) The drug or other substance has no currently

accepted medical use in treatment in the United States.

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(C) There is a lack of accepted safety for use of

the drug or other substance under medical supervision.

(2) Schedule II.—

(A) The drug or other substance has a high poten-

tial for abuse.

(B) The drug or other substance has a currently ac-

cepted medical use in treatment in the United States

or a currently accepted medical use with severe re-

strictions.

(C) Abuse of the drug or other substances may lead

to severe psychological or physical dependence.

(3) Schedule III.—

(A) The drug or other substance has a potential for

abuse less than the drugs or other substances in

schedules I and II.

(B) The drug or other substance has a currently

accepted medical use in treatment in the United States.

(C) Abuse of the drug or other substance may lead

to moderate or low physical dependence or high psy-

chological dependence.

(4) Schedule IV.—

(A) The drug or other substance has a low potential

for abuse relative to the drugs or other substances in

schedule III. :

(B) The drug or other substance has a currently ac-

cepted medical use in treatment in the United States.

(C) Abuse of the drug or other substance may lead

to limited physical dependence or psychological de-

pendence relative to the drugs or other substances in

schedule III.

(5) Schedule V.—

(A) The drug or other substance has a low po-

tential for abuse relative to the drugs or other sub-

stances in schedule IV.

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(B) The drug or other substance has a currently

accepted medical use in treatment in the United States.

(C) Abuse of the drug or other substance may lead

to limited physical dependence or psycbological de-

pendence relative to the drugs or other substances in

schedule IV.

§ 841. Prohibited acts A—Unlawful acts.

(a) Except as authorized by this subchapter, it shall be

unlawful for any person knowingly or intentionally—

(1) to manufacture, distribute, or dispense, or pos-

sess with intent to manufacture, distribute, or dispense,

a controlled substance; or

(2) to create, distribute, or dispense, or possess with

intent to distribute or dispense, a counterfeit substance.

Penalties

(b) Except as otherwise provided in section 845 of this

title, any person who violates subsection (a) of this sec-

tion shall be sentenced as follows:

(1) (A) In the case of a controlled substance in schedule

I or II which is a narcotic drug, such person shall be

sentenced to a term of imprisonment of not more than 15

years, a fine of not more than $25,000, or both. If any per-

son commits such a violation after one or more prior con-

victions of him for an offense punishable under this para-

graph, or for a felony under any other provision of this

subchapter or subchapter II of this chapter or other law of

the United States relating to narcotic drugs, marihuana,

or depressant or stimulant substances have become final,

such person shall be sentenced to a term of imprisonment

of not more than 30 years, a fine of not more than $50,000,

G14

or both. Any sentence imposing a term of imprisonment

under this paragraph shall, in the absence of such a prior

conviction, impose a special parole term of at least 3 years

in addition to such term of imprisonment and shall, if there

was such a prior conviction, impose a special parole term

of at least 6 years in addition to such term of imprisonment.

(B) In the case of a controlled substance in schedule I or

II which is not a narcotic drug or in the case of any con-

trolled substance in schedule III, such person, shall, except

as provided in paragraphs (4), (5), and (6) of this sub-

section, be sentenced to a terin of imprisonment of not more

than 5 years, a fine of not more than $15,000, or both. If

any person commits such a violation after one or more

prior convictions of him for an offense punishable under

this paragraph, or for a felony under ay other provision

of this subchapter or subchapter II of this chapter or other

law of the United States relating to narcotic drugs, mari-

huana, or depressant or stimulant substances, have become

final, such person shall be sentenced to a term of imprison-

ment of not more than 10 years, a fine of not more than

$30,000, or both. Any sentence imposing a term of imprison-

ment under this paragraph shall, in the absence of such a

prior conviction, impose a special parole term of at least

3 years in addition to such term of imprisonment and shall,

if there was such a prior conviction, impose a special parole

term of at least 4 years in addition to such term of im-

prisonment.

(2) In the case of a controlled substance in schedule IV,

such person shall be sentenced to a term of imprisonment

of not more than 3 vears, a fine of not more than $10,000,

c-15

or both. If any person commits such a violation after one

or more prior convictions of him for an offense punishable

under this paragraph, or for a felony under any other pro-

vision of this subchapter or subchapter II of this chapter or

other law of the United States relating to narcotic drugs,

marihuana, or depressant or stimulant substances, have be-

come final, such person shall be sentenced to a term of im-

prisonment of not more than 6 years, a fine of not more than

$20,000, or both. Any sentence imposing a term of imprison-

ment under this paragraph shall, in the absence of such a

prior conviction, impose a special parole term of at least one

year in addition to such term of imprisonment and shall, if

there was such a prior conviction, impose a special parole

term of at least 2 years in addition to such term of im-

prisonment.

(3) In the case of a controlled substance in schedule V,

such person shall be sentenced to a term of imprisonment

of not more than one year, a fine of not more than $5,000,

or both. If any person commits such a violation after one

or more convictions of him for an offense punishable under

this paragraph, or for a crime under any other provision

of this subchapter or subchapter II of this chapter or other

law of the United States relating to narcotic drugs, mari-

huana, or depressant or stimulant substances, have be-

come final, such person shall be sentenced to a term of

imprisonment of not more than 2 years, a fine of not more

than $10,000, or both.

C-16

(4) Notwithstanding paragraph (1)(B) of this subsec-

tion, any person who violates subsection (a) of this sec-

tion by distributing a small amount of marihuana for no

remuneration shall be treated as provided in subsections

(a) and (b) of section 844 of this title.

(5) Notwithstanding paragraph (1)(B) of this subsec-

tion, any person who violates subsection (a) of this sec-

tion by manufacturing, distributing, dispensing, or pos-

sessing with intent to manufacture, distribute, or dispense,

except as authorized by this subchapter, phencyclidine (as

defined in section 830(e)(2) of this title) shall be sen-

tenced to a term of imprisonment of not more than 10

years, a fine of not more than $25,000, or both. If any per-

son commits such a violation after one or more prior con-

victions of him for an offense punishable under paragraph

(1) of this paragraph, or for a felony under any other

provision of this subchapter or subchapter III of this

chapter or other law of the United States relating to

narcotic drugs, marihuana, or depressant or stimulant

substances, have become final, such person shall be sen-

tenced to a term of imprisonment of not more than 20

years, a fine of not more than $50,000, or both. Any sen-

tence imposing a term of imprisonment under this para-

graph shall, in the absence of such a prior conviction, im-

pose a special parole term of at least 2 years in addition

to such term of imprisonment and shall, if there was such

a prior conviction, impose a special parole term of at least

4 years in addition to such term of imprisonment.

C-17

(6) In the case of a violation of subsection (a) of this

section involving a quantity of marihuana exceeding 1,000

pounds, such person shall be sentenced to a term of im-

prisonment of not more than 15 years, and in addition,

may be fined not more than $125,000. If any person

commits such a violation after one or more prior convic-

tions of such person for an offense punishable under para-

graph (1) of this paragraph, or for a felony under any

other provision of this subchapter, subchapter II of this

chapter, or other law of the United States relating to nar-

cotic drugs, marihuana, or depressant or stimulant sub-

stances, have become final, such person shall be sentenced

to a term of imprisonment of not more than 30 years, and

in addition, may be fined not more than $250,000.

Special parole term

(c) A special parole term imposed under this section or

section 845 of this title may be revoked if its terms and

conditions are violated. In such circumstances the original

term of imprisonment shall be increased by the period of

the special parole term and the resulting new term of im-

prisonment shall not be diminished by the time which was

spent on special parole. A person whose special parole

term has been revoked may be required to serve all or part

of the remainder of the new term of imprisonment. A spe-

cial parole term provided for in this section or section 845

of this title shall be in addition to, and not in lieu of, any

other parole provided for by law.

C18

Piperidine offenses and penalty

(d) Any person who knowingly or intentionally—

(1) possesses any piperidine with intent to manu-

facture phencyclidine except as authorized by this

subchapter, or

(2) possesses any ,)iperidine knowing, or having

reasonable cause to believe, that the piperidine will

be used to manufacture phencyclidine except as autho-

rized by this subchapter,

shall be sentenced to a term of imprisonment of not more

than 5 years, a fine of not more than $15,900, or both.

§ 877. Judicial review

All final determinations, findings, and conclusions of the

Attorney General under this subchapter shall be final and

conclusive decisions of the matters involved, except that

any person aggrieved by a final decision of the Attorney

General may obtain review of the decision in the United

States Court of Appeals for the District of Columbia or

for the circuit in which his principal place of business is

located upon petition filed with the court and delivered to

the Attorney General within thirty days after notice of

the decision. Findings of fact by the Attorney General, if

supported by sub<cntial evidence, shall be conclusive.