Petition for Writ of Certiorari — Phillips v. United States

Supreme Court brief1975

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4-703

IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

—__+——

ROBERT PHILLIPS and ARNOLD TOLBERT, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent,

——

PETITION FOR A WRIT OF CERTIORARI

Fe TO THE UNITED STATES COURT

OF APPEALS FOR THE

FIFTH CIRCUIT

Se aed

PHILIP A, GILLIS

Attorneys for Petitioner

5th Floor, American Title Building

Detroit, Michigan 48226

*313) 962-8210

Interstate Brief & Record Co., 105¢ Beaubien St.. Detroit. Michigan 48226

WO. 2-8743—WO. 2-8732

TABLE OF CONTENTS

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Dee ee eee amens

Questions Presented for Review ..............+55. 2

Constitutional and Statutory Provisions Involved .. 3

Statement of the Case ............ SP CRASERACERGASS *

Reasons for Granting the Writ ................... 7

SE IE Sine SW 4S 56n ans 0a we de ceecenssneces

Appendix A—Opinion Below

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1974

_———

ROBERT PHILLIPS and ARNOLD TOLBERT, JR.,

Pp etitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

ee Se

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE

FIFTH CIRCUIT

Sei Aiea

Robert Phillips and William Arnold Tolbert, Jr., pray

that a Writ of Certiorari issue to review the judgment of

the United States Court of Appeals for the Fifth Circuit

entered July 15, 1974.

OPINIONS BELOW

The District Judge did not file an opinion. The opinion

of the Court of Appeals is reported at 496 F 2d 1395. It is

printed as Appendix A, infra.

JURISDICTION

The judgment of the Court of Appeals was entered on

July 15, 1974 (Appendix B, wfra). A timely Petition for

Rehearing was denied on November 5, 1974 (Appendix C,

infra). Jurisdiction is conferred upon this Court by 28 USC

1254.

QUESTIONS PRESENTED FOR REVIEW

In 1972, Border Patrol Agents, operating a checkpoint

along an interstate highway a few miles from the Mexican

border, stopped and searched without cause or reasonable

suspicion every northbound vehicle. Should contraband

discovered in one such search be suppressed either inde-

pendently of or because of this Court’s 1973 decision in

Almeida-Samchez vs. United States?

II.

Where a new statutory schedule of controlled substances

is required to be updated and republished within a speci-

fied period following enactment, may one be proceeded

against criminally for possession of a controlled substance

on the basis of a nunc pro tumc republication after the

date of the alleged offense?

II.

Where arresting officers seize a substantial sum of un-

tainted money from a defendant, does the judge before

whom the defendant is to be tried have the authority and

duty to order the money returned to the defendant? Does

the retention of the money by the government presump-

tively deny the defendant his right to counsel, his right

to compulsory process and his right to a fair trial?

IV.

Where the evidence of Defendant’s guilt is entirely cir-

cumstantial and is equivocal on the question of his guilt,

is he entitled to a judgment of acquittal?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, Amendment IV, provides in

part:

The right of the people to be secure in their

persons, houses, papers, and effects against un-

reasonable searches and seizures shall not be vio-

lated...

United States Constitution, Amendment VI, provides in

part:

In all criminal prosecutions, the accused shall en-

joy the right . . . to have compulsory process for

obtaining witnesses in his favor and to have the

assistance of counsel for his defense.

8 USC 1356; 21 USC 811 and 812 are set out in Appen-

dix D, infra.

STATEMENT OF THE CASE

Petitioners Robert Phillips and William Arnold Tol-

bert, Jr., were indicted for intentionally possessing with in-

tent to distribute apprximately 230 pounds of marijuana

in violation of 21 USC 841 (a) (1). Defendants were tried

without a jury and convicted.

VALIDITY OF THE SEARCH.

On the morning of May 5, 1972, shortly after 8:00

o’clock, Petitioners, proceeding north on the main highway

from Laredo to San Antonio, were stopped for an immi-

gration search conducted by border patrol officers at a

highway checkpoint, located approximately ten miles north

of Laredo and about four air miles from the Mexican

border.

At the time the officers “had no reason to suspect any-

thing”. They were conducting what they called a “blitz”,

checking for illegal aliens by stopping and searching ev-

ery vehicle that came through.

Petitioner Phillips who was driving was asked to open

the trunk, but he said he did not have a key. Petitioners

were then detained about ten minutes until the trunk

could be searched by removing the back seat. Inside the

trunk were approximately 230 pounds of marijuana. Tak-

ing a dim view of this, the agents arrested Petitioners.

A pretrial Motion to Suppress Evidence, consideration

of which was deferred until trial, was denied.

IL.

WHETHER MARIJUANA WAS CONTROLLED ON MAY 5,

1972.

The Comprehensive Drug Abuse Prevention and Con-

trol Act of 1970, 21 USC 801 et seq was enacted October

27, 1970. Section 202 [21 USC 812] initially established

five schedules of controlled substances with a proviso that

the schedules be republished on a regular basis commenc-

ing April 27, 1972.*

The Director of the Bureau of Narcotics and Dangerous

Drugs did not republish the schedules until May 8, 1972.

The republication appeared in the issue of the Federal

contained the following preamble:

The Comprehensive Drug Abuse Prevention and

Control Act of 1970, Section 202 (a) [21 USC 812

(a)], requires that the schedules of controlled sub-

stances established by that Act be updated and re-

published on a semiannual basis during the two-year

period beginning one year after the effective date

of that Act. The effective date of that Act was

October 27, 1970. Pursuant to the mandate of Sec-

tion 202 (a), therefore, the Director hereby orders

the publication of the schedules of controlled sub-

stances as of April 27, 1972.

Prior to trial, Petitioners moved to quash the indictment

on the grounds that marijuana was not a controlled sub-

stance as of the date of the alleged offense. The motion

was denied without opinion.

1 The schedules established by this Section shall be updated and

republished on a semiannual basis during the two-year period be-

ginning one year after the date of enactment of this subchapter and

shall be updated and republished on an annual basis thereafter.

Ii.

RETENTION OF PHILLIPS’ MONEY.

When arrested, Petitioner Phillips possessed approxi-

mately $5100 in currency. There was no evidence that it

was contraband. A day or two later, the money was seized

by the Internal Revenue Service under a jeopardy assess-

ment.

Prior to trial Phillips moved for the return of the money

claiming that he needed it to obtain counsel and otherwise

prepare his defense. The motion was denied by a calendar

sheet notation of the trial judge which read:

On motion of Defendant’s return of funds. Monies

in the defendants’ [sic] possession at the time of

arrest, while held temporarily by the Marshal, have

been seized by the Internal Revenue Service under

a jeopardy assessment. I consider the dispute be-

tween the defendants’ [sic] and the Internal Revenue

Service properly to belong in another forum and not

here. The motion is denied.

IV.

SUFFICIENCY OF THE EVIDENCE AS TO PETITIONER

TOLBERT.

On May 4 Phillips rented the car in which he and Tolbert

were driving from the Avis Rent-a-Car Agency in Harl-

ingen, Texas. Because they try harder, Avis made certain

that the car was clean, the trunk empty, and that Phillips

had trunk and ignition keys. Tolbert was with Phillips at

the time the car was rented.

ey i

LL BEE NEL TIS EIR TI PCY LEITRIM GIO OPS RE

~ -— .

Airline tickets and a motel bill found with Petitioners

at the time of their arrest indicated that they hac left

Detroit together, flying to Texas. They had spent the night

prior to their arrest at the same motel.

While waiting for the car to be searched, Tolbert told

one of the agents that he had some family trouble and had

come to Texas just to see what was happening, what was

going on. Phillips told the other agent that he and Tolbert

’ were in the real estate business and made frequent trips

to Texas, driving all over the state.

In affirming Tolbert’s conviction in the face of his chal-

lenge to the sufficiency of the evidence, the Court of Appeals

said:

There are no facts in this case tending to establish

exclusive possession and knowledge by Philips ex-

cept that the car was rented by him and he was the

driver [| Appendix A, infra, p. 8a].

REASONS FOR GRANTING THE WRIT

WHETHER THE EVIDENCE FROM THE SEARCH SHOULD

BE SUPPRESSED.

1. The immediately obvious question here is whether the

1973 decision of Almeida-Sanchez v United States, 413 US

266, fixes the standards for validity of this 1972 search.

The circuits are divided. The Tenth says Almeida-San-

chez applies, United States v King, 485 F 2d 353 (1973).

The Ninth says it doesn’t, United States v Bowen, 500 F 2d

960 (1974). The Fifth Circuit’s latest ruling is consistent

with the Ninth, the decision below and United States v

Miller, 492 F 2d 37 (1974). In urging the Court to resolve

the conflict, we make the following points.

Ores

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a. Almedia-Sanchez is not new doctrine.

In Miller, the Fifth Circuit saw an analogy between Al-

meida-Sanchez and Rodrigue v Aetna Casualty and Surety

Company, 395 US 352 (1959). Rodrigue filled a “gap” in

federal law, and in Chevron Oil Company v Huson, 404 US

97 (1971), this Court said it would be unfair to apply Rod-

rigue retroactively to bar a litigant’s claim under a re-

cently-determined-applicable statute of limitations.’

But Almeida-Sanchez did not fill any gap in existing law.

No new ground was plowed. No case was overruled. Only

after citing and analyzing its decisions going back half

a century did this Court conclude:

... neither this court’s automobile search decisions,

nor its administrative inspection decisions provide

any support for the constitutionality of the stop

and search in the present case. 413 US at 272.

In deciding whether to grant certiorari, the Court should

note that it has already agreed to rule on a closely related

issue in United States v Ortiz, 73-2050, certiorari granted

October 15, 1974, 43 LW 3185.°

2 If certiorari is granted, we would make no point of the differ-

ence between civil and criminal cases. Although different vaiues

are in litigation, we perceive no distinction upo nwhich retroactivity

should turn.

3 Ortiz involves a search after Ameida-Sanchez but before de-

cision in United States vs. Bowen, 500 F 2d 960 (CA 9 1974) and

the issue is whether Bowen’s interpretation of Almeida-Sanchez

should be applied retroactively.

b. Even as new doctrine, Almeida-Sanchez should be

retroactive.

The three-pronged test of Stoval* has divided this Court

and left the lower courts uncertain on the issue of retro-

activity. We would urge, if review is granted, that in direct

appeals such as this where the integrity of the guilt-deter-

mining process is not involved, retroactivity would be al-

lowed unless one of the litigants has relied upon the prior

law to his detriment. Such a rule would have simple and

certain application.

Thus, a pretrial identification made in an essentially fair

manner but without additional safeguards which the Court

later determines to be necessary to vindicate a suspect’s

constitutional rights would be admissible because the police

could no longer have a meaningful pretrial lineup. Similar-

ly, a pretrial interrogation of a suspect which generated

a voluntary inculpatory statement would not be suppressed

because of a failure of the police to anticipate warning re-

quirements of a later Court ruling. If this Court were to

overrule Cady v Dombrowski, 413 US 433 (1974), it would

_ be unfair to give the overruling decision retroactive effect

because the police, relying on Cady to their detriment, would

have lost forever the opportunity to search with or without

a warrant.

But Almeida-Sanchez did not condemn the search because

of any formalism such as the failure of the Border Patrol

‘The criteria guiding resolution of the question implicate (a)

the purpose to be served by the new standards (b) the extent of the

reliance by law enforcement authorities on the old standards, and

plication of the new standards.

Stovall vs. Denno, 388 US 293, 297 (1967).

2 ASAT EINE BG TOO LOSE ILLES TIPLE LN E GLE GEL IIGIEE LOGLO LILLE Y LORE LI oe NRT oe EN

Agents to precede their search with, “Simon says, may I

search your car?” The search was condemned because it

was unreasonable. Nothing the agents could have done in

our case in anticipation of Almeida-Sanchez would have

made the search reasonable.» Their reliance on earlier

Fifth Circuit law, therefore, was not to their detriment.

c. A Prospective-only rule should be uniformly applied.

Immediately after Almeida-Sanchez was decided, the

Fifth Circuit began to give it full retroactive effect. In 1973

at least three convictions were reversed because of it.

United States v Byrd, 483 F 2d 1196; United States v Mc-

Kim, 487 F 2d 305; United States v Speed, 489 F 2d 478.

See also United States v Lonabough, 494 F 2d 1957, 1960

(1974), where Almeida-Sanchez was held to be “the govern-

ing standard” for a December 1972, search.

There is an element of unfairness whenever a litigant

whose case is still in the pipeline of direct review is denied

the benefit of the current ruling of the Court on a point

carefully preserved from time of arrest until final review.®

But it is particularly unfair when the jurisdiction in which

the case arises grants retroactivity to some and not to

others. Petitioners are in the unhappy position of having

5 The suggestion by Justice Powell of area-wide warrants is not a

holding of the Court.

6 Because the adversary system relies so heavily on the parties

to look after their own interests during trial, it is unconscionable

to disregard a valid claim still pressed and not finally disposed of,

just because someone else got to Washington first.

Bines, Remedying Ineffective Representation in Criminal Cases:

Departures from Habeas Corpus, 59 Virginia LR 927, 956

(1978).

been. searched too soon and having had their appeal decided

too late.’

2. A question left open in Almeida-Sanchez is the pos-

sible distinction between searches at temporary or per-

manent check-points and those by roving patrols.* The

question will probably be resolved when the Court decides

Ortiz, supra.

We should be allowed to participate in that resolution.

There probably are factual differences between our case

and that of Ortiz which would allow the Court to fully ex-

pound its decision by holding rather than dictum. For

example, ours was a temporary checkpoint® and Ortiz,

judging from Law Week’s synopsis, 43 LW 3185, involves

a fixed checkpoint search.

Needless to say, it would be our position, if certiorari is

granted, that there is no constitutional distinction between

roving patrol searches and those at temporarily or per-

manently fixed points which are not the functional equiva-

lent of the border.

7 Perhaps a fair solution would be to hold that Miler, overruling

prior Fifth Circuit decisions that Almeida-Sanchez is retroactive, should

not apply to cases such as Petitioners’ which were briefed and argued

prior to announcement of decision in Miller.

8 Nor does this case involve the constitutional propriety of

searches at permanent or temporary checkpoints removed from the

border or its functional equivalent.

413 US at 276 (concurring opinion of Justice Powell).

®The Court below described the checkpoint as being maintained

“with at least some degree of regularity,” citing other decisions involv-

ing checkpoints north of Laredo (la, infra). Putting to one side that

findings should not be made on the basis of records made in other cases

in which petitioners did not participate, cf. United States vs. Baca, 368

F Supp 398 (DC Cal 1973), the checkpoint in United States vs. McDaniel,

463 F 2d 129, to which the Court refers, was seven miles north of

Laredo and eight miles from the border.

_— - PT EN ES EE Nee PPG E SL EE OO LE LILIES ELLIS LEE LDL EE LL ALBLELE SELLER LOLS

3. Oar Petition presents a facet to our Fourth Amend-

ment argument not considered in Almeida-Sanokez. Border

Patrol Agents, such as the ones who arrested Petitioners,

are specially designated as Custom Agents. They wear two

hats, so to speak, as noted in United States v McDaniel, 463

F 2d 129, 134 (CA 5 1972). If, as to away-from-the-border

searches, those by immigration officials are to be judged

by a different standard than those by customs officials, then

an officer wearing both hats should be governed by his more

restricted authority.

This is simply a rule of fairness. It is nearly impossible

to challenge the testimony of such a dual agent as to his

reasons for his search. Here, one agent, stating his purpose

in searching the trunk, said “Basically it was to check for

illegal aliens.” Another agent said, “My primary function

was illegal aliens.” Compare Contreras v United States,

291 F 2d 63 (CA 9 1961) which dealt with similar testi-

mony.

[The Border Patrol Agent] testified that he might

have found a document in the sack that would have

helped him to make up his mind regarding the citizen-

ship of the Puerto Rican. We are inclined to be-

lieve this was a consideration which must have

occurred to [him] sometime after the events in ques-

tion transpired.

The decisions of the Fifth, Ninth, and Tenth Circuits

indicate that the vast majority of contraband-in-a-car pro-

secutions are initiated by immigration officials. Inevitably,

the testimony discloses that the “basic” or “primary” pur-

pose of the search is to look for aliens—aliens under a seat

of a sportcar,” aliens behind a six-inch panel,” and aliens

10 United States vs. Winer, 294 F Supp 731 (DC Texas 1969).

11 Valenzuela-Garcia vs. United States, 425 F 2d 1170 (CA 9 1970).

in the pocket of a jacket.’* The fact that the immigration

officers turned up contraband simply demonstrates their

remarkable serendipity.

Il.

WHETHER MARIJUANA WAS CONTROLLED ON MAY 5,

1972.

The legislative history of the Act under which this

prosecution was brought clearly discloses the concern of

Congress for enlightened regulation of controlled sub-

stances. The House report frankly acknowledged the lack

of scientific data to justify some of the criminal sanctions

being imposed under the new law. There was no greater

area of doubt than with reference to marijuana, 1970 US

Cong. & Adm. News, 4577 et seq.

The statute, consequently, provided that the schedules

of controlled substances shoald be reviewed on a regular

basis. 21 USC 811 gives the Attorney-General permission

to add to or remove substances from the schedules or

transfer between schedules. 21 USC 812 requires that the

schedules be updated and republished commencing April

27, 1972.

But the Director of the Bureau of Narcotics and Dan-

gerous Drugs did not act until May 8 when he attempted

to republish the schedules nunc pro tunc as of April 27.

See the Federal Register for Friday, May 12, 1972, 37

FR 9545.

We suggest that there are two reasons why marijuana

did not continue as a controlled substance beyond April

27.

—

12 Roa-Rodriguez vs. United States, 410 F 2d 1206 (CA 10 1969).

a. The Schedules were intended to be temporary.

In establishing the schedules, Section 812 (a) provides

that the ‘‘schedules shall initially consist of the substances

listed in this Section.” While we have emphasized initially

in quoting the statute, the only word emphasized in italics

in the lengthy Conference Report was initially.

Subsection 202 (a) establishes five schedules and

provides that these schedules shall initially consist

of the substances listed in Section 202. The subsec-

tion further provides for a semi-annual updating

and republishing of the schedules during the two-

year period beginning one year after the date of

enactment of Title II of the Act.

1970 US Cong. & Adm. News 4606

(Emphasis as in the original.)

21 USC 812 (c) provides, with our emphasis:

Schedules I, II, III, IV and V shall, unless and

until amended pursuant to Section 811 of this Title,

consist of the following drugs or other substances

The italicized portion of the statute indicates that, while

the schedules will continue pending their pei missive modi-

fication by the Attorney-General, they will not continue be-

yond the date for mandatory updating. If it were the in-

tention of Congress that the schedules continue in force

indefinitely, the italicized portion of the statute would

have been omitted so that the statute would read, “The

schedules, unless and until amended, shall consist of... ”.

To reject our interpretation, one must find that, first,

Congress used a meaningless phrase in referring to Sec-

tion 811, and, second, Congress assumed that its mandate

in Section 812 would be ignored.

The Director of the Bureau of Narcotics and Dangerous

Drugs apparently construes the statute consistent with

our position. Otherwise, why would he say “ ... the Di-

rector hereby orders the publication of the schedules of

controlled substances as of April 27, 1972.”

It is well settled that a violation of administrative reg-

ulation, made within the scope of the legislative act, may

be made a criminal offense, United States vs. Newman,

44 F Supp 817 (DC III 1942), but there is no authority

under the Constitution to allow regulation’ to take effect

nunc pro tun.

b. Congress did not make the required findings with

reference to marijuana.

Marijuana is a Schedule I substance. In order for it to

be in Schedule I, certain findings must héve been made.

They are set out in Section 812 (b).

The findings required for each of the schedules are

as follows:

(1) Schedule I.—

(A) The drug or other substance has a high

potential for abuse.

(B) The drug or other substance has no cur-

rently accepted medical use in treatment

in the United States.

of the drug or other substance under med-

ical supervision.

| In enacting the statute, Congress made no such findings

with reference to marijuana. In the legislative history,

the Conference Report states, 1970 US Cong. & Adm.

News 4577:

The extent to which marijuana should be con-

trolled is a subject upon which opinions diverge —

widely. There are some who not only advocate its

legalization but would encourage its use; at the

other extreme there are some States which have

established the death penalty for distribution of

marijuana to minors.

The report then lists fables and facts concerning mari-

juana and its use, a fair reading of which indicates Con-

gress’ uncertainty as to whether marijuana met the cri-

teria for inclusion in Schedule I. The report then con-

tinues, id 4579:

The Committee requested recommendations from

the Department of Health, Education and Welfare

concerning the appropriate location of marijuana

in the schedules of the bill, and by letter of Au-

gust 14, 1970, (printed in this report under the

heading ‘‘Agency Reports”), the Assistant Secre-

tary for Health and Scientific Affairs recommended

“that marijuana be retained within Schedule I at

least until the completion of certain studies now

underway.”

In addition, Section 601 of the bill provides for

establishment of a Presidential Commission on mari-

juana and drug abuse. The recommendations of

this Cormmission will be aid in determining the ap-

propriate disposition of this question in the future

(Emphasis supplied). |

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Title V of the Act makes certain specific Congressional

findings concerning the use of marijuana. It is reprinted

as a note to 42 USCA Section 242 (p. 24 of the Current

Pocket Parts). There, Congress specifically found that

“with respect to the use of marijuana, there is a lack of an

authoritative source for obtaining information involving

the health consequences of using marijuana.”

Thus it is clear that Congress did not make the findings

necessary to include marijuana in Schedule I, and neither

has the Director of the Bureau of Narcotics and Danger-

ous Drugs.

Certainly the Director could not add a substance to the

schedule without making the findings required by the sta-

tute. To allow otherwise would be to allow delegation of

legislative authority, Yakus vs. United States, 321 US 414

(1944).** It would seem equally clear that the Director

could not continue a substance in a schedule by his in-

attention to the plain legislative command to update and

republish on the basis of current findings.

The Court below ignored this issue in its opinion. There

is a strong argument for this Court not to follow suit. The

point we raise involves only marijuana. We make no point

of the fact that in finally republishing the Director did not

make the findings which the statute clearly requires him

to make. If we are correct in our position, a ruling in this

case would affect only prosecutions relating to marijuana

which occurred between April 28 and May 12, 1972. Thus

this case is a peculiarly appropriate vehicle for this Court

to tell the Director that he must follow the statute.

18 [The essentials of the legislative function] are preserved

when Congress has specified the basic conditions of fact upon whose

existence or occurrence, ascertained by relevant data by a designated

administrative agency, it directs that its statutory command shall

be effective. Id, at 424, 425.

Ii.

WHETHER THE DISTRICT JUDGE SHOULD HAVE SUM-

MARILY ORDERED THE RETURN OF PETITIONER PHILLIPS’

MONEY.

As far as we know, only one Supreme Court Justice has

ever addressed himself to this problem, Justice Washing-

ton, sitting as a Circuit Justice in Ex parte Craig, 4 Wash

Circuit Reports 710, Federal Cases No. 3, 321 (1827). We

cannot add to what he said there about the power and

duty of a criminal trial judge to summarily order the re-

turn of the defendant’s property taken at the time of his

arrest.

... I consider the money to be constructively in

possession of the court and subject to its order.

The Constitution, by one of its amendments, has

secured to every person under a criminal prosecu-

tion, the right to have compulsory process for ob-

taining witnesses in his favor, and the privilege of

having the assistance of counsel to defend him. But

what would these securities avail the accused, if a

judicial officer, or any other officer of the court

may legally deprive him of the means of obtaining

his witnesses, and of employing the counsel in

whom his confidence is placed; by detaining the

money found upon his person, which, in many cases

may be his all? To turn the prisoner over to his

ordinary remedy, by suit against the officer, which

might not be decided until long after his fate in

the criminal prosecution had been fixed, would be

'a mockery of justice, and a reproach to the law.

Id, 710-711.

The money was not subject to execution under Texas

law, Tones vs. The State, 48 Texas Cr. Bap. 263 (19%).

To the same effect, see Hubbard vs. Garner, 115 Mich

406, 73 NW 390 (1897). See also In re Ginsberg, 146 F 2d

749 (CA 2 1945); Weinberg vs. United States, 126 F 2d

1004 (CA 2 1942).

The question is important for this Court to review be-

cause of the prevailing practice of law enforcement agen-

cies to alert the Internal Revenue to the seizure of money

so that a jeopardy assessment can be made. Only if the

money is contraband should it be withheld from a de-

fendant when it may represent his only resource to obtain

counsel and otherwise prepare his defense.

IV.

WHETHER AN IMPROPER Y4RDSTICK WAS USED TO

MEASURE THE SUFFICIENCY OF THE EVIDENCE AS TO

PZTITIONER TOLBERT.

First, let us assure the Court that we recognize that a

question turning on the sufficiency of the evidence to sup-

port a lower court judgment has no cert appeal. We would

probably have a vetter chance of getting the Court to look

at our old vacation movies than to review the sufficiency

of the evidence in even this brief 100-page transcript. But

the question we raise is far more fundamental.

The standard of certainty to support a conviction—

proof beyond a reasonable doubt—is a Constitutional con-

stant in our jurisprudence, Jn re Winship, 397 US 368

(1970). Unfortunately, however, that constant lies on a

bed of shifting sand in certain important areas of the

criminal law—constructive possession and circumstantial

evidence to name but two.

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Judicial decisions have at best established ill-

defined guidelines as to the evidentiary require-

ments necessary to prove constructive possession.

Especially in reported cases growing out of nar-

cotic prosecutions the opinions are usually built

upon involved and obscure reasoning which cer-

tainly suggests judicial subjectivity . . . The law

of constructive possession is what we will say it

is in our next opinion. (Concurring opinion).

United States vs. Holland, 445 F 2d 701, 703-704

(CA DC 1971).*

In this case, TOLBERT’S knowledge and constructive

possession of the marijuana was determined on the basis of

circumstantial evidence. Prior to 1954, most courts had a

satisfactory yardstick to follow in measuring circumstan-

tial evidence—it must be such as to exclude every reason-

able hypothesis other than that of guilt. However, in

14 TOLBERT was a passenger in a car in which marijuana was con-

cealed inside suitcases which were inside of a locked trunk to which

TOLBERT did not have a key. There was no odor of either mothballs

or marijuana detectible in the car until after the agents opened the

back seat. Whatever difficulty the courts have had in defining the concept

of constructive possession, no court has held this to be sufficient evidence

of knowing possession.

Guevara vs. United States, 242 F 2d 745 (GA 5 1957) ;

Cuthbert vs. United States, 278 F 2d 220 (CA 5 1960) ;

Ledet vs. United States, 297 F 2d 737 (CA 5 1962) ;

United States vs. Lowry, 456 F 2d 341 (CA 5 1972) ;

Arellanes vs. United States, 302 F 2d 603 (CA 9 1962) ;

Delgado vs. United States, 327 F 2d 641 (CA 9 1964);

United States vs. Bethea, 442 F 2d 700 (CA DC 1971).

Perhaps this argument has no place in our Petition, but we couldn’t

resist pointing it out at least in footnote.

Holland vs. United States, 348 US 121 (1954), this Court

ruled that, if a jury is properly instructed on reasonable

doubt, an additional instruction of the exclusion of every

innocent hypothesis is confusing and unnecessary.

Unfortunately, many courts read Holland as rejecting

the yardstick as a principle of law, e.g., United States vs.

Conti, 339 F 2d 10 (CA 6 1964); Umted States vs. Nelson,

419 F 2d 1237 (CA 9 1969) ; United States vs. Taylor, 464

F 2d 240 (CA 2 1972).

This Court was not abandoning as a principle of law

its rule that circumstantial evidence must not be equivo-

cal on the question of guilt.

. . . To establish the intent, the evidence of

knowledge must be clear, not equivocal.

Direct Sales vs. United States, 319 US 703, 711

(1942).

The proof, by the very nature of the crime [of

conspiracy] must be circumstantial . . . but this

does not mean ... that the evidence may be equi-

vocal ..

Id, at 714.

This test was repeated in the post-Holland decisions

of this Court. See Ingram vs. United States, 360 US

672, 680 (1959), quoting Direct Sales with approval. In

Barnes vs. United States, 413 US 837, 845 (1973), con-

cerned not with jury instructions but sufficiency of evidence,

this Court in sustaining a conviction measured the proofs

as follows:

The evidence . . . provided no plausible explanation

for such possession consistent with innocence.

Ironically, the only Circuit which correctly (and con-

sistently until the decision below) read the Holland deci-

sion was the Fifth Circuit. See, for example, Cuthbert vs.

United States, 278 F 2d 220 (1960).

The difficulty with abandoning such a logical test for

determining as a matter of law proof beyond a reasonable

doubt—that the circumstantial evidence exclude every rea-

sonable hypothesis of innocence—is that the courts now

have no rule whatsoever against which to measure the

sufficiency of evidence in such cases. Each case must be

decided ad hoc. It is no wonder, then, that on occasion,

judicial hands have been thrown up in frustration in at-

tempting to find a guiding principle.

Some of our decisions have suggested a test [to

determine sufficiency of circumstantial evidence]

. . . However, in at least two decisions of this

Court, it has been said that, on review, this Cir-

cuit applies no special rule!! Foster vs United

States, 318 F 2d (CA 9 1963) (Exclamation marks

supplied. }

See also the acknowledgment of at least one judge of

the Sixth Circuit that since Holland he hasn’t always been

able to steer an even course in this area, United States vs.

Morgan, 469 F 2d 83 (1972).

In Taylor, supra, the Second Circuit renounced the in-

consistent-with-innocence test, 464 F 2d at 244. But, the

logic of the test being so compelling, the Court could not

avoid using it. “The ultimate sentence of the opinion, there

affirming the conviction, said there was ‘‘an inescapable

inference of intent to defraud.” Isn’t this the inconsis-

tent-with-innocence rule?

We ask the Court to review the sufficiency of the evidence

in this case only because it is necessary in order for the

Court to rule on the yardstick used by the Court below.

See Morissette vs. United States, 342 US 246 (1951) where

this Court had to perform a similar function in order to

announce one of the more important decisions of the past

quarter century.

In assessing TOLBERT’S guilt, the Court below said:

There are no facts in this case tending to estab-

lish exclusive possession and knowledge by Phillips

except that the car was rented by him and he was

the driver.

This language appears to place the burden of proof on

TOLBERT, but that is not our principal complaint here.

What the Court was doing was rejecting its prior holding

in Cuthbert, and holding that evidence consistent with

guilt would sustain a conviction even though it spoke with

equal voice that the defendant was innocent.

Winship guaranteed that a criminal conviction must rest

on proof beyond a reasonable doubt. But that guarantee

is an empty promise unless this Court gives the lower courts

a yardstick by which to measure reasonable doubt.

15“. . . in a case where the evidence relied upon to establish

guilt is entirely circumstantial, it is essential to a just decision by

the District Judge that the evidence makes out a fact case for the

decision of the jury, that the Court conclude that the jury might

reasonably find, not only that the evidence is consistent with a find-

ing of guilt but that it is not consistent with any other reasonable

conclusion. If this is not so, a verdict of guilty beyond a reasonable

doubt, based wholly on circumstantial evidence, though it keeps the

promise of a fair trial to the ear, breaks it to the hope.”

278 F 2d at 224-225.

RELIEF REQUESTED

For the foregoing reasons, Petitioners pray that their

Petition for Certiorari be granted.

Respectfully submitted,

Philip A. Gillis

Attorney for Petitioners

5th Floor, American Title Building

Detroit, Michigan 48226

962-8210

Dated: Detroit, Michigan

November 27, 1974

I ee

APPENDIX A

OPINION BELOW

(Dated and Filed July 15, 1974)

Before WISDOM, GODBOLD and INGRAHAM, Circuit

Judges.

GODBOLD, Circuit Judge:

The appellants were convicted in a nonjury trial for

possession of 230 pounds of marijuana with intent to dis-

tribute, in violation of 21 U.S.C. § 841(a-(1). The contra-

band was discovered on May 34, 1972, in the locked trunk

of an automobile rented and driven by Phillips and in

which Tolbert was a passenger, and as a result of an im-

migration search conducted by border patrol officers at

a highway checkpoint.

We know these facts about the search in question. The

checkpoint was located approximately 11 miles north of

Laredo, Texas, (approximately 9 miles north of the city

limits) on highway 35, the main highway from Laredo

north to San Antonio. As the crow flies the point was three

and a half to four miles from the Rio Grande River, the

international boundary. It may fairly be inferred from

overall consideration of this and other cases,’ that the

1E.g., United States v. Maggard, 451 F.2d 502 (CA5, 1971), cert.

denied, 405 U.S. 1045, 92 S.Ct. 1330, 31 L.Ed.2d 587 (1972); United

States v. DeLeon, 462 F.2d 170 (CA5, 1972), cert. denied, 414 U.S.

853, 94 S.Ct. 76, 38 L.Ed.2d 102 (1973); United States v. McDaniel,

463 F.2d 129 (CA5, 1972), cert. denied, 413 U.S. 919, 93 S.Ct. 3046,

87 L.Ed.2d 1041 (1973); United States v. Wright, 476 F.2d 1027

(CA5, 1973), cert. denied, 414 U.S. 821, 94 S.Ct. 116, 38 L.Ed.2d 53

(1973).

TOE IN REI ho RIE! POI TE PB MET EID NPCS ROE Me: AE

ea ee

government employs a checkpoint with at least some degree

of regularity a few miles north of Laredo on the main

highway to San Antonio.

The location at which Phillips and Tolbert were stopped

was divided into primary and secondary search areas. At

around 8:00 a.m. the officers on duty were conducting what

they termed a ‘‘blitz,” checking for illegal aliens by stop-

ping every vehicle that came through and opening the

trunk of some or all.? They referred to this time of day

as the “changeover period” (the appellation was unex-

plained), and there was testimony that this was a time

when many vehicles were coming through and “we have

had occasion to have other people try to bring alicus

through the checkpoint at the changeover time.” Officers

were working in shifts, and the 8:00 a.m. to 4:00 p.m.

shift was on duty, comprising at least three officers. Stop

signs were up to stop vehicles.

[1, 2] A search of automobiles for aliens under the

circumstances of this case is valid. See United States v.

DeLeon, 462 F.2d 170 (CA5, 1972), cert. denied, 414 US

853, 94 S.Ct. 76, 38 L.Ed2d 102 (1973); United States v.

McDaniel, 463 F.2d 129 (CA5, 1972), cert. denied, 413 US

919, 93 S.Ct. 3046, 37 L.Ed.2d 1041 (1973).* Once the

search in the present case was begun, it was legitimate

for the officers to look wherever there was room for an

alien to hide, and to seize evidence of other crimes if it

was in plain view. See United States v. McDaniel, supra.

2 At some places in their testimony officers implied they were search-

ing the trunks of all cars. But at other places reference was made to

“waving cars through” while the transactions involving defendants were

taking place.

®The search in this case was pre-Almeida-Sanchez, 413 U.S. 266,

93 S.Ct. 2535, 37 L.Ed.2d 596 (1973). The standards of that case are

not retroactive. United States v Miller, 492 F.2d 37 (CA5, 1974).

Thus the District Court did not err in denying appellants’

motion to suppress the marijuana found in the trunk of

the rented car.

[3-5] We turn to the sufficiency of the evidence to es-

tablish that Tolbert knowingly possessed the marijuana.‘

Both the possession and the knowledge of possession can

be proved by circumstantial evidence, ¢.g., Montuya v.

United States, 402 F.2d 847 (CA5, 1968), and po:session

may be actual or constructive but in any event there must

be dominion and control over the item or a power to exer-

cise dominion and control. There are numerous caveats that

go along with cases of circumstantial evidence of knowing

possession. No term is more ambiguous in common speech

and in legal terminology than the word “possession,” es-

pecially when it occurs in criminal statutory provisions,

and “it is so fraught with danger that the courts musi

scrutinize its use with all diligence.” Guevara v. United

States, 242 F.2d 745 at 747 (CA5, 1957). ‘‘It is easy to get

the eye off the target in a c.se like this, to focus so precisely

on the inviting bullseye of the defendant’s failure to give

a credible explanation of why he was on the scene an!

what he was doing, that the requirement of possession

never gets under the gunsight, and as a consequence th:

defendant is subjected to the critical inferences [her. the

critical consequences of possession] not because !e *-

non-explaining possessor but because he is an ineredih’:

non-possessor who is where the action is.” Fitzpatric’

United States, 410 F.2d 513 at 515-516 (CA5, 1969). Th:

line between knowing possession and guilt by association

can be very thin. Proof of mere proximity to contraband

*No contention is made that the evidence of possession was insuffi-

cient as to Phillips.

EE —— side i MED REO NE LMOL EI LOE TE RESET

is not sufficient to establish actual or constructive posses-

sion or the element of knowledge. United States v. Canada,

459 F.2d 687 (CA 5, 1972).

[6] Mindful of these commands that we proceed with

caution,’ we conclude that there was sufficient evidence to

support a finding of knowing possession by Tolbert. There

was evidence which the court was entitled to credit, to the

following effect. Phillips and Tolbert had flown together

from Detroit to Texas, and they had come together to

Texas on this and prior occasions and had traveled about

the state together. Phillips had rented the car at Harlin-

gen, Texas, at which time the agent delivered to him an

ignition key and a trunk key. There is no evidence that

Tolbert ever had a trunk key in his possession, but he was

at the rental agency with Phillips when the car was rented.

The two men stayed the night together in a motel. There

were four or more large suitcases in the trunk, only one

small suitease inside the car. When the car was serviced

by the rental agency before delivery only the spare tire

was in the trunk. When told by the officers that they were

checking for aliens, Tolbert inquired whether they were

searching for drugs. The quantity of contraband was large,

the packages numerous and sizeable, and some of them

were loose in the trunk. At least one package, about 15”

x 10” x 4”, was removed by an agent, and at least one

of the agents observed through the plastic covering leaves,

stems and seeds. An agent felt one of the packages and

could feel vegetable matter within. As soon as access was

obtained to the trunk, there was in the rear seat area a

5 See also the cou.ments of Judge Tamm in United States v. Holland,

144 U.S.App.D.C. 225, 445 F.2d 701 (1971), pointing out the unsatis-

factory and confused condition of the state of the law on proof of con-

structive possession, ¢.g., “the law of constructive possession is what

we will say it is in our next opinion.” Id. at 704.

scmmmetateniati casita ttatieiktiheameetinniainmnce iaalheiaeed tine cainentdic nee

heavy smell of mothballs, whose odor is often used to

mask the scent of marijuana, and there were moth flakes on

the exterior of at least some of the packages.

[7] Both appellants denied the existence of a trunk

key. Before entering the trunk the agents attempted to

secure a key from the rental firm owning the car, which

entailed a delay of about 10 minutes. During this interim

they talked separately to Tolbert and Phillips who gave

conflicting explanations for their presence in the area.

Tolbert stated he was in Texas because of family trouble,

while Phillips said the two of them were there for business

reasons.°

Under all of these circumstances the court could con-

clude that both Phillips and Tolbert had knowing posses-

sion of th: marijuana.

The cases relied upon by Tolbert do not require a differ-

ent result. In Montoya v. United States, 402 F.2d 847 (CA

5, 1968), appellant Montoya was a passenger in the front

seat of a pickup truck owned by a third person but driven

by his brother-in-law. It had on the back an enclosed home-

made camper with a door but without windows. Within

was 539 pounds of marijuana in 25 large cloth sacks, in-

side of which were small plastic bags each containing a

paper package of marijuana. On appeal we concluded that

the jury must have totally rejected Montoya’s incredible

story of the events leading up to the arrest. This being

so, there was no evidence of a jomt undertaking other

5 Absent other and sufficient indicia of possession, a less-than-credi-

ble explanation by one in the proximity of contraband is not alone a

ground for conviction. Fitzpatrick v. United States, 410 F.2d 513 at

516 n. 2 (CA5, 1969). But this is not to say that a less-than-credible

explanation is not part of the overall circumstantial evidence from which

possession and knowledge may be inferred.

than Montoya’s presence in the vehicle as a passenger.

Nor was there any evidence, other than Montoya’s pres-

ence, that he had any reason to enter the enclosed portion

of the truck or any nexus to it or any reason to be aware

of the presence of the sacks, or, if he was aware of them,

any knowledge of their contents. In a iater case of mari-

juana in a car trunk we sustained the conviction of the

passenger and distinguished Montoya because of evidence,

from a statement made by the passenger, that he was

aware of the presence of the contraband. United States v.

Canada, swpra. United States v. Lowry, 456 F.2d 341 (CA

5, 1972), also relied upon by appellants, is another case in

which there was no basis for belief that the defendant ei-

ther saw or knew of the existence of contraband in the

vehicle. In Cuthbert v. Umted States, 278 F.2d 220 (CA

5, 1960), the defendants were on a lengthy trip together,

and five pounds of marijuana was purchased by~-6ne de-

fendant (an addict) at a time the other defendants were

not present and subsequently was found in his baggage.

We reversed as to another defendant because there was

insufficient evidence that he ever saw or took possession

of any of the contraband.

In Guevera v. United States, supra, a package contain-

ing 50 marijuana cigarettes was found on the floor under-

neath the front seat of Guevara’s car, occupied by him

as driver and another man as passenger, at a point about

midway between Guevera’s seat and the passenger’s seat

and in a position accessible to either occupant by simply

lowering his hand. Police arrested Guevera but accepted

the explanation of both men that the passenger was only

being transported home, and released the passenger who

went away not to be seen again. Conviction of Guevera

was reversed on the ground of insufficient evidence of pos-

session, there being “‘no rational connection between own-

ership and possession of the car and possession of the cigar-

ettes.” The court pointed out that the car had been un-

locked and the cigarettes could have been placed therein

by any person. The quantity was so small that. one could

infer the occupants had no knowledge of its presence.

There was no pattern of extensive joint prior conduct.

It was as reasonable to believe that the contraband be-

longed to the unknown passenger as to Guevara.’ In the

present case, the car was locked, the suitcases were in the

trunk, the quantity of contraband very large, a key had

been delivered to Phillips but both defendants denied its

existence, and there was an extensive pattern of conduct

indicating a joint undertaking but with the two partici-

pants giving conflicting descriptions of it. In Ledet v.

United States, 297 F.2d 737 (CA5, 1962), the facts were

similar to those of Guevera, plus evidence of other joint

prior conduct including a lengthy trip together by the de-

fendants, and we held the evidence sufficient, though barely

so. The facts of the present case are stronger than Ledet.

In United States v. Duke, 423 F.2d 387 (CA5, 1970), three

men took a lengthy joint trip from the State of Washing-

ton to the Mexican border, followed by discovery near

the border of a small quantity of heroin in the car in a

Winston cigarette package. We held the evidence not suf-

ficient to support possession by two of the occupants. The

third man, Sanchez, was killed in an accident after arrest

and before indictments were returned. He was the only one

of the three men who spoke Spanish, the only one wno

smoked Winston cigarettes, the one who went to a bank

near the border and borrowed money, the one most likely

to be familiar with the area, and, additionally he was more

7 See e. g. United States v. Leazar, 460 F.2d 982 at 985, footnote 6

(CAQ9, 1972), distinguishing Guevera,

often separate from the other two, who usually were to-

gether. We held the evidence did not exclude the reason-

able possibility that Sanchez alone possessed the heroin

and that its presence was unknown to the others. There

are no facts in this case tending to establish exclusive

possession and knowledge by Phillips except that the car

was rented by him and he was the driver.

The agents’ efforts to secure a key from the rental com-

pany were fruitless. They then entered the trunk by lifting

the seat portion of the rear seat and, with a wrench, un-

screwing and removing the back of the rear seat, which

made available a structural opening into the trunk area.

Through the opening an agent could see packages and two

or more ‘~iteases which blocked further view of the in-

terior of ' trunk. He lifted out at least one package, tore

a@ corner 0. » package and saw marijuana within. The en-

try into the t-unk as part of an otherwise valid border

search was not impermissible. United States v. DeLeon,

462 F.2d 170 (CA5, 1972); United States v. Salinas, 439

F.2d 376 (CA5, 1971); Morales v. United States, 378 F.2d

187 (CA5, 1967).

Other points raised by appellants require no discussion.

Affirmed.

APPENDIX B

JUDGMENT

No. 73-1230

Appeal from the United States District Court for the

Southern District of Texas

Before WISDOM, GODBOLD AND INGRAHAM,

Circuit Judges.

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Southern District of Texas, and was argued by counsel;

On CONSIDERATION WHEREOF, It is now here or-

dered and adjudged by this Court that the judgment of the

said District Court in this cause be and the same is hereby

affirmed.

July 15, 1974

Issued as Mandate November 13, 1974

APPENDIX C

United States Court of Appeals

Fifth Circuit

Office of the Clerk

November 5, 1974

To All Counsel of Record

Re: 73-1230 U.S.A. v. PHILLIPS

Dear Counsel:

This is to advise that an order has this day been en-

tered denying the petition (_ ) for rehearing, and no mem-

ber of the panel nor Judge in regular active service on the

Court having requested that the Court be polled on re-

hearing en bamc (Rule 35, Federal Rules of Appellate Pro-

cedure; Local Fifth Circuit Rule 12) the petition ( ) for

rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

Edward W. Wadsworth

Clerk

By:/s/ Anne G. Parent

Deputy Clerk

ec: Mr. Philip A. Gillis

Mr. Robert Darden

peu

APPENDIX D

8 USC 1357 provides in pertinent part:

(a) Any officer or employee of the Service authorized

under regulations prescribed by the Attorney General shall

have power without warrant—

(3) within a reasonable distance from any exter-

nal boundary of the United States, to board and

search for aliens any vessel within the territorial

waters of the United States and any railway car,

aircraft, conveyance, or vehicle, and within a dis-

tance of twenty-five miles from any such external

boundary to have access to private lands, but not

dwellings, for the purpose of patrolling

to prevent the illegal entry of aliens in to the

United States; * * *

June 27, 1952, c. 477, Title II, ch. 9, § 287, 66 Stat. 233.

21 USC 811 provides:

(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

substance 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 sub-

stance 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

pursuant to the rulemaking procedures prescribed by sub-

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

suance, amendment, or repeal of such rules may be ini-

tiated 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.

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

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 con-

trolled 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 shall include recommendations with respect to

soeniaeaernerm amntmentiiainsidaianataceiesleniilindiaain ine oo aT

the appropriate schedule, if any, under which such drug

or other substance should be listed. The evaluation and

the recommendations 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 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 de-

termines that these facts and all other relevant data con-

stitute 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 re-

moval, as the case may be, under subsection (a) of this

section.

Factors determinative of control or removal from

schedules.

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 re-

garding 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 lia-

bility.

(8) Whether the substance is an immediate pre-

cursor of a substance already controlled under this

subchapter.

International treaties, conventions, and protocols

requiring control

(d) If control is required by United States obligations

under international treaties, conventions, or protocols in

effect on the effective date of this part, the Attorney Gen-

eral shall issue an order controlling such drug under the

schedule he deems most appropriate to carry out such obli-

gations, without regard to the findings required by sub-

section (a) of this section or section 812(b) of this title

and without regard to the procedures prescribed by sub-

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

Immediate procedures

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

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

tion 812(b) of this title and without regard to the proce-

dures prescribed by subsections (a) and (b) of this sec-

tion, place an immediate precursor in the same schedule in

which the controlled 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 sche-

dule solely because they are its precursors.

TL TT TN TE EIEN E IST 8 nn et

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 At-

torney General.

Nornarcotic substances sold over the counter without

a prescription; dextromethorphan

(g) (1) The Attorney General shall by regulation ex-

clude any non-narcotic substance from a schedule if such

substance may, under the Federal Food, Drug, and Cos-

metic 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 provisions of this section.

Pub.L. 91-513, Title I, $201, Oct. 27, 1940, 84 Stat. 1245.

21 USC 812 provides in pertinent part:

(a) There are established five schedules of controlled

substances, to be known as schedules I, IJ, LI, 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 during 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.

(b)

Placement on schedules; findings required

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 required

for each of the schedules are as follows:

(1)

(2)

Schedule I.—

(A) The drug or other substance has a high

potential for abuse.

(B) The drug or other substance has no cur-

rently accepted medical use in treatment in the

United States.

of the drug or other substance under medical su-

pervision.

Schedule II.—

(A) The drug or other substance has a high

potenti«l for abuse.

(B) The drug or other substance has a cur-

rently accepted medical use in treatment in the

United States or a currently accepted medical use

with severe restrictions.

lead to severe psychological or physical depend-

ence.

(3)

(4)

(5)

Schedule III.—

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

tial for abuse less than the drugs or other sub-

stances in schedules I and II.

(B) The drug or other substances has a cur-

rently acepted medical use in treatment in the

United States.

lead to moderate or low physical dependence or

high psychological dependence.

Schedule IV.—

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

tential for abuse relative to the drugs or other

substances in schedule TII.

(B) The drug or other substance has a cur-

rently accepted medical use in treatment in the

United States.

lead to limited physical dependence or psychologi-

cal dependence relative to the drugs or other sub-

stances in schedule JTJI.

Schedule V.—

(A) The drug or other substance has a low

potential for abuse relative to the drugs or other

substances in schedule IV.

(B) The drug or other substance has a cur-

rently accepted medical use in treatment in the

United States.

lead to limited physical dependence or psychologi-

cal dependence relative to the drugs or other sub-

stances in schedule IV.

Initial schedules of controlled substances

until amended pursuant to section 811 of this title, con-

sist of the following drugs or other substances, by what-

ever official name, common or usual name, chemical name,

or brand name designated:

Schedule I

(a) Unless specifically excepted or unless listed

in another schedule, any of the following opiates,

including their isomers, esters, ethers, salts, and

salts of isomers, esters, and ethers, whenever the

existence of such isomers, esters, ethers, and salts

is possible within the specific chemical designation:

(b) Unless specifically excepted or unless listed

in another schedule, any of the following opium

derivatives, their salts, isomers, and salts of isom-

ers whenever the existence of such salts, isomers,

and salts of isomers is possible within the specific

chemica’ designation:

in another schedule, any material, compound, mix-

ture, or preparation, which contains any quantity

of the following hallucinogenic substances, or which

EEE

—_—

contains any of their salts, isomers, and salts of

isomers whenever the existence of such salts, jisom-

ers, and salt of isomers is possible within thé spe-

cific chemical designation :

(10) Marijuana.

* * . * . t

Pub.L.91-513, Title Il, § 202, Oct. 27, 1970, 84 Stat a

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