I DAVID W. DRATMAN

Attorney at Law

2 428 J Street, Suite 202

Sacramento, CA 95814

3 Telephone: (916) 443-2000Attorney for

4 ROBERT MARK McLAUGHLIN

5 DORON WEINBERG

LARSON & WEINBERG

6 Attorneys at Law523 Octavia Street

7 San Francisco, CA 94102

Telephone: (415) 431-3472

8 Attorney forPAUL MICHAEL BERNAUER

9

10 UNITED STATES DISTRICT COURT

11 COR THE EASTERN DISTRICT OF CAL_FORNI.A

12 UNITED STAncES OF AMERICA, )

)13 Pla inti :_f, )

)a

)"15 i', ROBERT MARK McLAUC_{LIN, ) CR. _O. 3-8_.'[81 _:.r<

II >16 i_ Defendant. )

17 )UNITED STATES OF AMERICA, ) C_, _i,)o '4J86-180 RAR

18

Plaintiff,19 )

_.i%'. );_oi! )

:;.ii= )ii De_dau_. ) DATE: December I0, 1986

•:,.::. it ) TIME: i0:00 a.m..... !! ) PLACE: Courtroom of the

;i:_ii Hon. RAUL A. RAMIREZ

2.i_ NOTICE OF MOTION AND MOTION TO DISMISS FOR LACK OF JURISDICTION;

MEMORANDUM OF PQ:rNTS AND AUTHORITIES IN SUPPORT THEREOF

28

1 TOPICALINDEX

Pa@e2

Table of Authorities ............... ii3

Statement of the Case .............. 44

Argument5

I. Introduction .............. 46

II. THE ADMINISTRATOR OF THE DRUG

7 ENFORCEMENT ADMINISTRATION CANNOT

LAWFULLY CLASSIFY MDMA IN SCHEDULE 1

8 UNDER THE EMERGENCY PROVISION IN

SECTION 811(h) ............. Ii9

A. Section 811(h) Represents an

10 Unconstitutional Delegation byCongress of Legislative Powers

11 to the Executive Branch of the

Government, the Attorney General . . ii12

B. The Fai lure of the Attorney

13 General to Sub-delegate theEmergency Powers of 811(h) to

14 the DEA Invalidates the DEA's

Emergency Scheduling of MDMA as15 a Schedule I Substance ....... 16

16 III. THERE IS NO RATIONAL BASIS FOR

TEMPORARY CLASS I FICATION OF SUB-

17 STANCES IN SCHEDULE I AS SET FORTH

IN 811(h) ................ 1918

A. There is no Rational Basis for

19 Requiring the Temporary Class-ification to be in Schedule I . . . 19

2O

B. There is no Rational Basis for

21 Allowing the Invocation of the

Emergency Power Without Regard22 to Appropriate Criteria ...... 22

23 IV. THE EXTENSION OF THE EMERGENCYSCHEDULING OF MDMA BY THE DEA WAS

24 ARBITRARY AND CAPRICIOUS IN

VIOLATION OF DUE PROCESS ........ 2325

V. THE EMERGENCY SCHEDULING OF MDMA BY

26 THE DEA WAS NOT NECESSARY TO AVOID

AN IMMINENT HAZARD TO THE PUBLIC27 HEALTH ................. 27

28 CONCLUSION ................... 30

-i-

I TABLE OF AUTHORITIES

2 Pa_e

3 Cases

4

5 American Power &Light Co. v. Securities & Exchan@eCommission, 329 U.S. 90, 105 (1948) ..... 12

6

Asarco, Inc. v. U.S. Environmental Protection Agency7 616 F.2d 1153, 1159 (9th Cir. 1980) ..... 26

8 Avent v. United States

266 U.S. 127, 130-31 (1924) .......... 12, 149

Bell v. United States

10 349 U.S. 81 (1955) .............. 18

11 Beltman v. Cohen

303 F.Supp. 889 (N.D. Cal. 1969) ....... 2012

Citizens to Preserve Overton Park v. Volpe13 401 U.S. 402, 415 (1971) ........... 24, 25

14 Electricity Consumers Resource Council v. FERC

747 F.2d 1511, 1518 (D.C. Cir. 1984) ..... 2615

Garcia v. United States

16 439 U.S. 1051 (1978) ............. 12

17 Helvenin_ v. City Bank Farmers Trust Co.298 U.S. 85, 90 (1975) ........... 20

18

Kunaknana v. Clark

19 742 F.2d 1145, 1149 (9th Cir. 1984) ..... 26

20 McKinley v. United States

249 U.S. 397 (U1919) ............. 12, 1421

Motor Vehicle Manufs. Ass'n. v. State Farm Mutual

2? Automobile Insur. Co., 463 U.S. 29, 42-43(1983) .................... 26

23

Panama Refining Co. v. Ryan

24 293 U.S. 388 (1935) ............. 13, 14

25 RSR Corp. v. EPA528 F.Supp. 1251 (N.d. Tex. 1984) ....... 26

26

Ralpho v. Bell;3 569 F.2d 607, 617 (D.C. Cir. 1977) ...... 16

28

-ii-

I Page

2

3 A.L.A. Schechter Poultry Corp. v. United States

295 U.S. 495 (1935) .............. 13, 144

Shaughnessy v. Accardi5 349 U.S. 280 (1955) ............. 25

6 United States v. Barron

594 F.2d 1345, 1352-53 (10th Cir.) cert. deniedz 441 U.S. 951 (1979) ............. 12

8 United States v. Bass

404 U.s. 336 (19781) ............. 189

United States v. Davis

10 584 F.2d 840, 843-44 (9th Cir. 1977), cert.

denied, 434 U.S. 1015 (1978) ......... 12, 1311

United States v. Giordano

12 416 U.S. 505 (1974) ............. 18

13 United States v. Gordon

580 F.2d 827, 839-40 (5th Cir.) cert. denied14 sub. nora................... 12

15 United States v. Grimaud

220 U.S. 506, 512-14 (1911) .......... 12, 1416

United States v. Lizarraga-Lizarraga17 541 F.2d 826 (9th Cir. 1976) ......... 16

18 United States v. Morgan313 U.S. 409, 411 (1941) ........... 25

19

United States v. Pastor

20 557 F.2d 930, 941 (2nd Cir. 1977) ....... 13, 14

21 United States v. Pees and McNeil

No. 86-CR-153 (D. Colo. 1986) ....... 1922

United States v. Piatti

23 416 F.Supp. 1202 (E.D.N.Y. 1976) ....... 13

24 United States v. Porter

554 F.2d 935, 939-40 (8th Cir. 1976) ..... 1225

United States v. Smith

26 740 F.2d 734 (9th Cir. 1984) ......... 12

27

28

-iii-

I Pa_e

2

3 CONSTITUTIONAL AND STATUTORY PROVISIONS

4 U.S. Const. art. I, Sec. 1 ............. ii

5 U.S. Const. art. I, Sec. 8 ............. ii

6 U.S. Const. amend. V ................ passim

," Administrative Procedures Act

5 U.S.C.A. Sec. 551-559 ........... passim8

Controlled Substances Act

9 21 U.S.C.A. Sec. 801-904 ........... passim

10 21 U.S.C.A. Sec. 811 ............... passim

11 21 U.S.C.A. Sec. 812 ............... passim

12 21 U.S.C. Sec. 841 ............... passim

13 21 U.S.C. Sec. 848 ............... 20

14 Comprehensive Crime Control Act of 1984,

Pub. L. No. 98-473, 98 Stat. 21071,

15 reprinted in 1984 U.S. Code Cong.

& Ad. News 3182 ............... 9_6

Comprehensive Drug Abuse Prevention and

17 control Act of 1970, Pub. L. No. 91-513,

84 Stat. 1245, reprinted in 1970 U.S.

18 Code Cong. & Ad. News 4566 ......... 5, 17

19 Dangerous Drug Diversion and Control Act of 1984,

Pub. L. No. 98-473, Title II, Sect. 508,

20 98 Stat. 2071 (1984) ............. 9, 17

21 21 C.F.R. Sec. 1308.1 (1985) ........... 6

:?2 28 C.F.R. Sec. 0.i00 ............... 8

-_ MISCELLANEOUS

24 38 Fed. Reg. 18380 (1973) ............. 8

25 46 Fed. Reg. 52348 ................ 8

28 49 Fed. Reg. 30210 (1984) ............. 8

26 -iv-

'!

I

Pase2

3

50 Fed. Reg. 23118 (1985) ............. 4, 9, 1

4 28

5 50 Fed. Reg. 28395 (1985) ............. 9

6 51 Fed. Reg. 21911 (1986) ............. ii

7 51 Fed. Reg. 36552 (1986) ............. ii

8 Baum, New Variety of Street Drugs PosesGrowing Problem, Chemical & Engineering

g News (published by the American Chemical

Society), September 9, 1985 ......... 5I0

Brain Mind Bulletins, Frontiers of Research,

11 Theory, and Practice, Vol. 1O, Nos. 8

(April 15, 1985), 12 (July 8, 1985),12 Vol. ll, NO. 1 (November 18, 1985) ...... 29

13 H.R. Rep. No. 835 Part l, 98th Cong.

2d Sess. 10 (June 12, 1984) ......... 21, 2814

In the Matter of MOMA Scheduling,

15 Op. and Recommended Dec is ion on

Preliminary Issue, Justice DEA,16 No. 84-48 (June l, 1985) .......... 23

17 In the Matter of MDMA Scheduling,

Op. and Recommended Dec is ion,18 Justice DEA, No. 84-48 (May 22, 1986) .... 23

Ig S. Rep. No. 225, 98th Cong. 2d Sess.,

reprinted in 1984 U.S. Code Cong. & Ad.20 News 3182 .................. 21

21 Schwartz, Administrative Law, Sec. 147 (1976) . 15

22 Schafer, "The War on Drugs is Over. The

Government has Lost. " Inquiry.

23 February 1984 ................ 29

24

25

26

27

28

--%---

1 DAVID W. DRATMAN

Attorney at Law2 428 J Street, Suite 202

Sacramento, CA 95814

3 Telephone: (916) 443-2000

Attorney for4 ROBERT MARK McLAUGHLIN

5 DORON WEINBERG

LARSON & WEINBERG

6 Attorneys at Law523 Octavia Street

7 San Francisco, CA 94102

Telephone: (415) 431-34728 Attorney for

PAUL MICHAEL BERNAUER9

I0

11 UNITED STATES DISTRICT COURT

12 FOR THE EASTERN DISTRICT OF CALIFORNIA

13

14 UNITED STATES OF AMERICA, )

)15 Plaintiff, )

)16 v. )

)17 ROBERT MARK McLAUGHLIN, ) CR. NO. S-86-181 RAR

)18 De fendan t. )

)19 )

UNITED STATES OF AMERICA, ) CR. NO. S-86-180 RAR20 )

Plaintiff, ) NOTICE OF MOTION AND MOTION21 ) TO DISMISS FOR LACK OF

v. ) JURISDICTION;MEMORANDUM OF

22 ) POINTS AND AUTHORITIES INPAUL MICHAEL BERNAUER, ) SUPPORT THEREOF

23 )Defendant. ) DATE: December i0, 1986

24 ) TIME: I0:00 a.m.) PLACE: Courtroom of the

25 Hon. RAUL A. RAMIREZ

26

27 PLEASE TAKE NOTICE that on December 10, 1986, at 10:00

28 a.m. or as soon thereafter as counsel may be heard, in the

I Courtroom of the Honorable RAUL A. RAMIREZ, United States

2 District Judge, Eastern District of California, Defendants ROBERT

3 MARK McLAUGHLIN and PAUL MICHAEL BERNAUER, will and do hereby

4 move this Court in their respective cases for an order dismissing

5 the Indictment against ROBERT MARK McLAUGHLIN and Count II of the

6 Indictment against PAUL MICHAEL BERNAUER for lack of

7 jurisdiction.

8 This motion is made upon the grounds that the emergency

9 classification, pursuant to 21 U.S.C.A. Section 811 (h) of MDMA

10 as a Schedule I controlled substance (Title 21, U.S.C. Section

11 811) by the Administrator of the Drug Enforcement Administrator

12 (DEA) violates the due process clause and Article I, Section I,

13 of the United States Constitution because:

14 I. Section 811 (h) represents an

unconstitutional delegation by Congress of

15 legislative powers to the executive branch of

the government, the Attorney General;

16

2. The emergency scheduling powers under17 section 811 (h) were not vested in the DEA;

18 3. There is no rational basis for temporaryclassification of substances in Schedule I as

19 set forth in subsection (h);

20 4. The extention of the emergency scheduling

of MDMA by the DEA was arbitrary and

21 capricious in violation of due process;

?2 5. The DEA's classification of MDMA inSchedule I was not necessary to avoid an

:_3 imminent hazard to the public health.

24 This motion is based upon the records and files in the

25 instant case, the United States Constitution, the United States

26 Code, the Code of Federal Regulations, the attached Memorandum of

Points and Authorities, the attached exhibits, and upon such oral.z_

I//

'_ 2

I or documentary evidence as may be adduced at the hearing of this

2 motion.

3 DATED: October 29, 1986

4 Respectfullysubmitted,

5 LARSON & WEINBERG

7 By : DORON WEI _'_''-1NBERG _ D_ DAVID W. DRATMAN8 Attorneys for Defendant Attorney for Defendant

PAUL MICHAEL BERNAUER ROBERT MARK McLAUGHLIN9

!0

11

12

13

14

15

16

17

18

19

2O

2!

?2

?3

24

25

76

;_7

26

i MEMORANDUM OF POINTS AND AUTHORITIES

2 STATEMENTOF CASE

3 Defendant ROBERT MARK McLAUGHLIN, was indicted in Case

4 No. CR. S-86-181 RAR on August I, 1986, for a violation of Title

5 21, U.S.C. Section 841(a) (i), Possession with Intent to

6 Distribute methelene-dioxy-methamphetamine (MDMA) alleged to have

7 occured on or about July 21, 1986.

8 Defendant PAUL MICHAEL BERNAUER, was indicted on August

9 i, 1986, in CR. S-86-180 RAR in two counts. Count II charges a

10 violation of Title 21, U.S.C. Section 841(a)(i), Possession with

11 Intent to Distribute methylene-dioxy-methamphetamine (MDMA)

12 alleged to have occured on or about July 21, 1986.

13 Both cases were consolidated for purposes of pretrial

14 motions. Each case is separately scheduled to commence jury

15 trial on January 27, 1986.

16 ARGUMENT

17 I.

18 INTRODUCTION

19 On May 31, 1985, the Administrator of the Drug

20 Enforcement Adminstration (hereinafter "DEA") exercised the

21 emergency drug classification powers vested in the Attorney

_? General under Title 21, U.S.C.A., section 811(h), and declared

23 3,4 - Methylene-dioxy-methamphetamine (hereinafter "MDMA") a

24 Schedule 1 controlled substance. 50 Fed. Reg. 23118-20 (1985).

25 Effective July I, 1985, the classification was to expire on July

26 I, 1986. On June 17, 1986, the DEA Administrator published a

;_7 notice extending the emergency classification of MDMA from July

28 i, 1986 to January l, 1987 or until the conclusion of the

4

I rulemaking proceeding regarding MDMA, whichever occurred first.

2 It is this temporary emergency classification of MDMA and

3 primarily its six month extension that Defendants McLAUGHLIN and

4 BERNAUER challenge herein, which, if found unconstitutional,

5 should result in a dismissal of the Indictment against McLAUGHLIN

6 and Count II against BERNAUER, since no such offense against the

7 United States lawfully exists.

8 In order to fully evaluate the issues presented in this

9 case, the following summarizes the history of MDMA and how it

10 became listed under the Controlled Substances Act. 21 U.S.C. 801-

11 904 (hereinafter "CSA") :

12 MDMA has existed as a chemical compound for over

13 seventy years, having been patented in 1914. Baum, New Variety

14 of Street Drugs Poses Growing Problem. Chemical & Engineering

15 News (published by the American Chemical Society). September 9,

16 1985, at 12.

17 On October 27, 1970, Congress passed the Comprehensive

18 Drug Abuse Prevention and Control Act of 1970. Pub. L. No. 91-

19 513, 84 Star. 1245, reprinted in 1970 U.S. Code Cong. & Ad. News

20 4566. Title ii of that Act constituted the CSA, and, in essence,

21 replaced and superseded previous federal laws governing drug

22 trafficking. Pub. L. No. 91-513, Title ll, Section 201, 84 Stat.

23 1245 (1970).

24 In the CSA, Congress established five schedules

25 (Schedules I-V) for classification of controlled substances. 21

26 U.S.C.A. Section 812(b)(i) (1981). The 1970 bill contained the

27 initial list of scheduled drugs, which did not include MDMA in

28 any schedule. In general, those substances found to have the

5

I most deleterious effect on the public, and no corresponding

2 medical benefits, for example, heroin, were placed in Schedule I.

3 Other drugs were scheduled in descending order with respect to

4 their potential for abuse and corresponding utility in medical

5 treatment. For example, cocaine was classified under Schedule

6 II, and codeine was classified under Schedule III.

? Congress delegated to the Attorney General of the

8 United States the authority to amend the schedules under limited

9 circumstances. 21 U.S.C.A. Section 811(a) (1981). If the

]0 Attorney General makes findings prescribed by sections 811,

11 subsection (c), and 812, subsection (b), a substance may be added

12 to or transferred between the schedules. 21 U.S.C.A. Section

13 (a) (I) (1981). The schedules established by the CSA are updated

14 and republished annually in the Code of Federal Regulations. 21

15 U.S.C.A. Section 812(a) (1981): 21 C.F.R. Section 1308.1 (1985).

16 Before the Attorney General may amend the schedules, he

17 must gather the necessary information to make the factual

18 determinations prescribed by the CSA. 21 U.S.C.A. Section 811(b)

19 (1981). The initial question becomes whether the substance

20 should be classified under the CSA in the first place. In

21 answering this question, the Attorney General must consider eight

?2 factor s :

::3 (i) Its actual or relative potentialfor abuse.

24 (2)Scientific evidence of its

pharmacological effect, if known.

25 (3) The state of current scientific

knowledge regarding the drug or other2S substance.

(4) Its history and current pattern of•_ abuse

(5) The scope, duration, and

26 significance of abuse.

(6) What, if any, risk there is to the

6

I public health.

(7) Its psychic or physiological

2 dependence liability.(8) Whether the substance is an

3 immediate precursor of substance already

controlled under this subchapter.4

5 21 U.S.C.A. Section 811(c) (1981).

6 The Attorney General also must request from the

7 Secretary of the Department of Health and Human Services a

8 scientific and medical evaluation of the substance and the

9 Secretary's recommendations with respect thereto. 21 U.S.C.A.

10 Section 811(b) (1981). The CSA provides in detail those

11 considerations required of the Secretary.

12 If the Attorney General determines that these facts and

13 all other relevant data constitute substantial evidence of

14 potential for abuse such as to warrant control, or substantial

15 evidence that a substance should be removed from control, then he

18 shall initiate proceedings for removal or control under the CSA.

17 21 U.S.C.A. Section 811(b) (1981). In doing so, the Attorney

18 General must fully comply with the Administrative Procedures Act.

19 5 U.S.C.A. Sections 551-559. 21 U.S.C.A. Section 811(a) (1981).

20 In addition, the Attorney General must provide notice in the

21 Federal Register and provide an opportunity for hearings on the

22 petition of any interested party. 21 U.S.C.A. Section 811(a)

23 (1981): 5 U.S.C.A. Section 552 (1977).

24 Once the Attorney General determines that a substance

25 should be controlled, the question then becomes the appropriate

26 classification. Before a substance may be propertly classified

27 in a given schedule under the CSA, the Attorney General must make

28 three additional findings, which vary according to the different

7

I schedules. 21 U.S.C.A. Sections 811(a), 812(b) (1981). For

2 example, before a substance can be placed in Schedule l, it must

3 be established that:

4 (A) The drug or other substance has a

high potential for abuse.5 (B) The drug or other substance has no

currently accepted medical use in treatment6 in the United States.

(C) There is a lack of accepted safety

7 for use of the drug or other substances under

medical supervision.8

9 21 U.S.C.A. Section 812(b)(i) (1981).

10 On July 10, 1973, the then acting Attorney General

11 delegated the functions vested in him under the "Comprehensive

12 Drug Abuse Prevention and Control Act of 1970" to the DEA. 38

13 Fed. Reg. 18380 (1973). See 28 C.F.R. Section 0.100(b) (1985)

14 (as amended Oct. 27, 1981, 46 Fed. Reg. 52348). The current U.S.

15 Attorney General, however, has never expressly subdelegated the

16 1984 amendment to the 1970 act (Section 811(h) - temporary

17 scheduling in Schedule I for emergency purposes) to the DEA.

18 On July 27, 1984, the DEA published a notice in the

19 Federal Register that it intended to place MDMA in Schedule I

20 pursuant to CSA section 811(a). 49 Fed. Reg. 30210 (1984).

21 This notice engendered considerable public comment, and the DEA,

_ in accordance with the terms of the Admininstrative Procedures

23 Act, proceeded to hold public hearings and elicit scientific

24 experiments with respect to MDMA. In November, 1984, the DEA's

25 Administrative Law Judge, FRANCIS L. YOUNG, was directed to

26 conduct a hearing regarding the appropriate scheduling of MDMA,

..'-.7 and to make a recommendation to the DEA regarding the permanent

28 classification, if any, of MDMA, under the CSA.

8

I On October 12, 1984, the Comprehensive Crime Control

2 Act of 1984 went into effect. Pub. L. No. 98-473. 98 Stat. 2071,

3 reprinted in 1984 U.S. Code Cong. & Ad. News 3182. In that Act,

4 Congress amended the CSA, among other things, by adding section

5 811 (h). Dangerous Drug Diversion and Control Act of 1984. Pub.

6 L. No. 98-473, Title Ii, Section 508, 98 Stat. 2071 (1984).

7 Subsection (h) grants the Attorney General "emergency powers" to

8 temporarily classify substances under Schedule I without

9 compliance with the procedures set forth in CSA sections 811 and

10 812, and without regard to the Administrative Procedures Act. 21

11 U.S.C.A. Section 811(h) (West Supp. 1986). Temporary scheduling

12 is not provided for Schedules II through IV, inclusive.

13 On May 31, 1985, the DEA published a notice in the

14 Federal Register announcing its intention to temporarilyplace

15 MDMA in Schedule I pursuant to the emergency provisions of CSA

16 section 811(h). 50 Fed. Reg. 23118-20 (1985) (amended July 12,

17 1985, to correct a misspelling of the compound in the original

18 notice, 50 Fed. Reg. 28395-97). The May 31 notice

19 simulataneously published the text of the order to take effect

20 July i, 1985. The order was to remain in effect until July i,

21 1986, unless rescinded or superseded by a permanent

22 classification.

23 Meanwhile, the participants of the proceeding on the

24 permanent classification of MDMA requested Judge Young to decide

25 a preliminary legal issue: namely, whether a substance that has

26 potential for abuse and no currently accepted medical use in the

27 United States can be placed in any schedule other than Schedule

28 I. On June i, 1985, Judge Young issued his decision on this

I preliminary question. In the Matter of MDMA Schedulinq, Op. and

2 Recommended Decision on Preliminary Issue, Justice DEA. No. 84-48

3 (June i, 1985) (A copy of this opinion is attached to Defendant's

4 Motion to Dismiss as "Exhibit "A" and is incoporated herein by

5 reference.) Essentially, Judge Young recommended to the

6 Administrator of the DEA that:

7 (A) substance which has a potential for

abuse less than a high potential, and no8 currently accepted medical use in treatment

in the United States, cannot lawfully be9 placed in any of the five schedules

established by the Controlled Substances Act

10 of 1970. The terms of the Act do not permitit. No amount of pouring over the

11 legislative history empowers us to close the

obvious gap left in the statutory scheme.12

13

If, however, the Acting Administrator rejects14 the above recommendation, the administrative

law judge recommends, in the alternative,15 that the Acting Administrator decide that a

substance having (i) a potential for abuse

16 less that a high potential, and (2) nocurrently accepted use in medical treatment

17 in the United States, should be placed in

either Schedule III, IV or V depending upon18 the substance's degree of potential for

abuse. This alternative recommendation is

19 based upon the opinions of the Federal Courts

in the District of Columbia and the Eighth20 Circuit .... the intent of Congress as

revealed by its own actions and by the21 legislative history of the Controlled

Substances Act of 1970, and on DEA's previous

?2 indications of its understanding of what thestatute permits it to do.

24 Id. at 21-22 (original emphasis).

25 On May 22, 1986, Judge Young issued his opinion and

26 recommended Ruling,'etc., recommending that MDMA be placed in

_- Schedule III. (A copy of that opinion is attached hereto marked

26 Exhibit "B" and is incorporated herein by reference.)

30 ¸

I Notwithstanding the opinion of Judge Young, on June 17,

2 1986, the DEA published a further notice in the Federal Register

3 announcing its intention to extend the temporary emergency

4 placement of MDMA in Schedule I for six months or until the

5 proceedings initiated pursuant to the rulemaking process were

6 completed, whichever comes first. 51 Fed. Reg. 21911 (1986).

Z On October 14, 1986, the DEA published its final rule

8 placing MDMA into Schedule I of the CSA. 51 Fed. Reg. 36552-60

9 (1986).

10 Defendants McLAUGHLIN and BERNAUER were indicted on

11 August i, 1986 for alleged conduct which occured on or about July

12 21, 1986, within the extension of the emergency placement of MDMA

13 in Schedule I.

14 II.

15 THE ADMINISTRATOR OF THE DRUG ENFORCEMENT ADMINISTRATIONCANNOT LAWFULLY CLASSIFY MDMA IN SHEDULE 1

16 UNDER THE EMERGENCY PROVISION IN SECTION 811 (h)

17 A. Section 811 (h) Represents an

Unconstitutional Delegation by18 Congress of Leqislative Powers

to the Executive Branch of the

19 Government_ the Attorney General

20 Article i, Section 1 of the United States Constitution

21 provides that "[a]ll legislative Powers herein granted shall be

22 vested in a Congress of the United States, which shall consist of

23 a Senate and House of Representatives." Article i, Section 8,

24 paragraph 18 provides that Congress shall be empowered "to make

25 all Laws which shall be necessary and proper for carrying into

26 Execution its general powers. "

27 The United States Supreme Court has held that a

28 delegation of authority by Congress is constitutionally

ii

I permissible provided that Congress "clearly deli'neates the

2 general policy, the public agency which is to apply it, and the

3 boundaries of this delegated authority." American Power & Light

4 Co. v. Securities & Exchange Commissicn. 329 U.S. 90, 105

5 (1948). Thus, Congress may validly empower an administrative

6 agency to promulgate rules or regulations, violations of which

7 may be subject to criminal sanctions, provided that the

8 delegation is accompanied by sufficient guidelines and standards

9 for the exercise of the authority. Avent v. United States, 266

10 U.S. 127, 130-31 (1924); McKinley v. United States, 249 U.S.

11 397 (1919); United States v. Grimaud, 220 U.S. 506, 512-14

12 (1911) ; United States v. Davis, 584 F.2d 840, 843-44 (9th Cir.

13 1977), cert. denied, 434 U.S. 1015 (1978). However, the need for

14 stringent guidelines is particularly acute where criminal

15 penalties are involved. See, e.g.. United States v. Smith, 740

16 F.2d 734 (9th Cir. 1984).

17 While the constitutionality of the delegation of

18 authority to schedule drugs under section 811(a) (the provision

19 for permanent scheduling) has been unsuccessfully challenged, the

20 delegation was upheld only because the Attorney General's

21 authority was carefully limited and defined. See, e.g.. United

22 States v. Davis, 564 F.2d 840, 843-44 (9th Cir. 1977), cert.

23 denied, 434 U.S. 1015 (1978); United States v. Gordon, 580 F.2d

24 827, 839-40 (5th Cir.) cert. denied sub nom.. Garcia v. United

25 States, 439 U.S. 1051 (1978); United States v. Barton, 594 F.2d

26 1345, 1352-53 (10th Cir.), cert. denied, 441 U.S. 951 (1979) ;

27 United States v. Porter, 554 F.2d 935, 939-40 (Sth Cir. 1976);

28 United States v. Pastor, 557 F.2d 930, 941 (2d Cir. 1977);

12

I United States v. Piatti, 416 F. Supp. 1202 (E.D.N.Y. 1976). Cf

2 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935) (delegation of

3 authority with unfettered discretion unconstitutional); accord

4 A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495

5 (1935).

6 In Davis, the court stated that there are "sufficient

7 guidleines and standards expessed in the language of 21 U.S.C.

8 (section) 811 itself (see subsections (b) and (c) of Section

9 811), in addition to the application of the protection of the

10 Administrative Procedure Act." Davis, 584 F.2d 787, 790 (7th

11 Cir. 1977).

12 Defendants McLAUGHLIN and BERNAUER respectfully submit

13 that, in these cases, the circuit courts of appeals have

14 improperly construed the holdings of the United States Supreme

15 Court, and that the delegation of authority to the Attorney

16 General under section 811 violated the Due Process Clause and the

17 Doctrine of the Separation of Powers. Defendants base this

18 assertion on the fact that the Attorney General is not merely

19 promulgating rules and/or regulations when he adds substances to

20 the CSA, but rather, the Attorney General creates law when he

21 exercises the power. The Attorney General, as a law enforcement

72 officer, should not be permitted to determine the laws and their

_3 resultant penalties, particularly when the penalty may result in

24 fifteen years of imprisonment. That is strictly a legislative

25 function, which under the Constitution, may be exercised only be

26 Congress itself.

Even assuming, arguendo, the delegation under section

26 811(a) is constitutional, the delegation under section 811(h) is

I!' 13

I not. The majority of the detailed procedures mandated under

2 sections 811 and 812 of the CSA are not required under section

3 811(h). Since the stringent guidelines and procedures are

4 precisely the justification for upholding the constitutionality

5 of the delegation under section 811(a), and they are omitted from

6 811(h), its constitutionality is not supported by case law, and,

7 in fact, would not withstand constitutional s_rutiny as set forth

8 by the Supreme Court in Panama, Schechter, Avent, Mckinley, and

9 Grimaud. See e.g.. Pastor, 557 F.2d at 942 (the detailed

10 procedures of section 811(a), (b), and (c) are precisely the

11 "checks" that ensure that the Attorney General's role will not be

12 used unfairly). Subsection _) is therefore unconstitutional on

13 its face because the delegation of authority fails to create

14 adequate safeguards for the exercise of that authority, resulting

15 in a denial of due process.

16 The temporary classification scheme of subsection (h)

17 differs from the permanent classification system in the following

18 ways :

19 I. The Attorney General may place a substance in

20 Schedule I without regard to the medical and scientific

21 evaluations of the Secretary of Health and Human Services. He

22 must merely take into consideration any comments submitted by the

23 Secretary in response to the notice of proposed scheduling of the

24 substance. Under the permanent scheduling authority, however,

25 the Attorney General is bound by the Secretary's medical and

26 scientific evaluations which are based on the eight factors set

27 forth in section 811(c).

28 2. Under subsection (h), the Attorney General need

14

I consider only three factor;s in determining that a substance

2 should be controlled, contrasted with the eight factors in

3 811(c). The Attorney General does not have to consider

4 scientific evidence of the substance's pharmacological effect or

5 its phychic and/or physiological dependence liability.

6 3. There is no opportunity for a hearing under

T subsection (h). The Attorney General merely has to issue his

8 order thirty days after publication of a notice in the Federal

9 Reg iste r.

10 4. Judicial reiew of the order is specifically

11 precluded.

12 The prohibition of judicial review is particularly

13 egregious when coupled with the lack of standards and guidelines

14 for exercising this authority because it heightens the

15 potential for abuse of discretion by the Attorney General.

16 "Unreviewability gives the executive a standing invitation to

17 disregard ... statutory requirements and to exceed the powers

18 conferred ....'" Ralpho v. Bell, 569 F.2d 607, 617 (D.C. Cir.

19 1977) (quoting B. Schwartz, Administrative Law, Section 147 at

20 149 (1976)).

21 A thorough analysis of the CSA makes clear that, under

22 subsection (h), the Attorney General has nearly limitless

23 authority to classify substances a controlled and thirty days

24 later to prosecute those who possess the substance. Although

25 section 811 sets forth detailed criteria for determining what

26 substances should be" controlled, the Attorney General is free to

27 ignore the majority of them by using the emergency authority of

28 subsection (h). Thus, serious criminal offenses can be created

15

I by the publication of two notices in the Federal Register, and in

2 this case, only one notice. The harsh penalties provided make

3 the criterion of this criminal offense too important to depend

4 upon the whim of one official.

5 The danger of enacting criminal statutes through complex

6 regulatory schemes was recognized in United States v. Lizarraqa-

7 Lizarra_a, 541 F.2d 826 (9th Cir. 1976). In that case, the Ninth

8 Circuit found it necessary to read into the criminal statutes the

9 defense of ignorance of law. The court's concern stemmed from

10 the fact that through administrative regulations, a number of

11 items not typically thought of as unlawful suddenly had become

12 just that. It is an open invitation to abuse by the executive

13 which is worsened in a situation such as this, where there are

14 not adequate safeguards.

15 Thus, the fact that the criminal offense is created by

16 a regulatory authority cannot be overemphasized. That is the

17 very reason the guidelines and procedures are necessary in the

18 first instance. Without such standards and boundaries, the

19 executive cannot constitutionally legislate as has been done

20 he re.

21 B. The Failure of the Attorney General

to Subdele_ate the Emergency Powers

2? of 811 (h) to the DEA Invalidates theDEA's Emergency Scheduling of MDMA

23 as a Schedule I Substance

24 Assuming ar_uendo that Congress may validly delegate to

25 the Attorney General certain legislative functions, and that the

26 Attorney General may properly confer that power on the

Z? Administrator of the DEA, the Attorney General has never

28 delegated to the DEA the emergency powers to classify substances

16

I temporarily under Schedule I. The emergency temporary scheduling

2 power set forth in section 811(h) is vested solely in the

3 Attorney General and has never been delegated to the DEA. Since

4 the temporary emergency classification of MDMA under section

5 811(h) was effectuated by the DEA, and not the Attorney General,

6 the classification is void ab initio. Accordingly, since MDMA

7 was not otherwise classified, there existed no such offense

8 against the United States, and these counts relating to BERNAUER

9 and McLAUGHLIN should be dismissed.

10 The Administrator of the DEA claims that the Attorney

11 General delegated the responsiblility for scheduling substances

12 under the Act to the DEA under Chapter 28, C.F.R., section

13 0.100(b). Federal Register, Vol. 50, No. 105, p. 23118-20 (May

14 31, 1985). However, CFR section 0.i00, by its own terms, only

15 conferred to the DEA authority to conduct the functions vested in

16 the Attorney General by the Comprehensive Drug Abuse Prevention

17 and Control Act of 1970 (hereinafter referred to as the Drug Act

18 of 1970). While the Drug Act of 1970 authorized the Attorney

19 General to classify substances under the Controlled Substances

20 ACt as provided therein, it did not provide for temporary

21 scheduling as in this case. Rather, the temporary scheduling of

22 substances was not auhorized by Congress until 1984 in the

23 Dan@erous Drug Diversion and Control Act of 1984, Pub. L. No. 98-

24 473, Title ii, Section 508, 98 Stat. 2071 (1984). The only

25 subdelegation to DEA occured in 1973 for The Drug Act of 1970.

28 Therefore, the "emergency powers" conferred on the

27 Attorney General in The 1984 Act could not have been subdelegated

28 to the DEA in 1973 because they did not then exist.

17

I This is the only appropriate construction of the

2 statutory scheme because "penal statute(s) should be strictly

3 construed against the government or parties seeking to exact

4 statutory penalties and in favor of persons on whom such

5 penalties are sought to be imposed." Sutherland, Statutory

6 Construction, Section 59.03, at 6-7. See also United States v.

7 Bass, 404 U.S. 336 (1971)(ambiguity concernlng the ambit of

8 criminal statutes should be resolved in favor of lenity") Bell v.

9 United States, 349 U.S. 81 (1955).

10 Not a single provision pruports to authorize the DEA to

11 perform this new function of emergency classification. It is

12 fundamental that an executive agency cannot exercise powers which

13 have been actually delegated to the agency. United States v.

14 Giordano, 416 U.S. 505 (1974). (The subdelegation of authority

15 by the Attorney General to one not specifically authorized under

IB a wiretap statute was held invalid, notwithstanding a statute

17 authorizing the Attorney General to delegate any of his functions

18 to other agencies or employees of the Department of Justice).

19 Certainly if the Attorney General has authority to

20 subdelegate his authority, it must be by virtue of such

21 affirmative act of subdelegation. Congress has never expresed an

22 intent to permit the Attorney General's subdelegees to assume,

23 without the official subdelegation of such powers by the Attorney

24 General, the powers that have been vested exclusively and

25 explicitly in the Attorney General.

26 Accordingly, the failure of the Attorney General to

27 affirmatively subdelegate the emergency scheduling provision of

28 811(h) to the DEA, invalidates the unauthorized classification of

18

I MDMA as a Schedule I substance. Dismissal of these charges is

2 the only remedy.

3 Finally, defendants bring to the Court's attention a

4 case from the District of Colorado, wherein United States of

5 America v. Pees and McNeil, NO. 86-CR-153 (D. Colo. 1986), Judge

6 Kane in his wirtten ruling granted Pees' Motion to Dismiss on

7 these very grounds, finding that there was no'subdelegation of

8 emergency powers by the Attorney General. While the ruling of

9 Judge Kane is, as yet unpublished, and of no binding

10 precendential effect, defendants' nonetheless append it to this

11 motion as Exhibit "C" for this Court's consideration.

12 III.

13 THERE IS NO RATIONAL BASIS FOR T_2_PORARY CLASSIFICATIONOF SUBSTANCES IN SCHEDULE I AS SET FORTH IN 811 (h)

14

15 The clear purpose behind section 811 (h) is to allow

16 temporary scheduling under the CSA of substances when necessary

17 to avoid an imminent hazard to public safety pending the

18 admministrative hearings on permanent classification. While the

19 legislative intent is laudible, the subsection, as enacted, is

20 unconstitutional because there is no rational basis for (a)

21 requiring the temporary classification to be in Schedule I, and

?2 (b) allowing the invocation of the power without regard to

.:3 appropriate criteria. As such, the law results in a denial of

24 due process.

25 A. There is No Rational Basis For Requiring

The Temporary Classification To Be in Schedule I

26

27 It is well settled that a law must reasonably relate to

26 the objectives sought before a rational basis will support its

19

I constitutionality. "It is true that the guarantee of due process

2 is infringed if the means chosen by Congress to effectuate a

3 public interest are unnecessary or inappropriate to the proposed

4 end, are unreasonably harsh or oppressive, when viewed in the

5 light of the expected benefit, or arbitrarily ignore recognized

6rights ... Beltman v. Cohen, 303 F. Supp. 889 (N.D. Cal. 1969)

7 (citing Helvening v. City Bank Farmers Trust Co., 298 U.S. 85, 90

8 (1975)).

9 Subsection (h) does not reasonably relate to the

10 objective sought because it mandates the Attorney General to

11 place in Schedule 1 all substances temporarily classified under

12 its provision. 21 U.S.C.A. Section 811(h)(i) (West Supp. 1986).

13 Thus, it does not allow the Attorney General the option of

14 placing a substance in any of the other schedules provided in 21

15 U.S.C.A. Section 812. This legislative response to the alleged

16 proliferation of "designer drugs" is arbitrary, capricious, and

17 unreasonable because the less draconion measure of allowing the

18 Attorney General to classify drugs in more appropriate schedules

19 was available to Congress.

20 By limiting the emergency classifications to Schedule

21 I, Congress not only subjects violators to some of the most

22 severe penalties in existence under federal law, including, under

23 some circumstances, life imprisonment, 21 U.S.C.A. Section 848,

24 but Congress also halts all ongoing and future scientific,

25 medical and clinical testing and research of the classified

2_ substances.

27 The Legislative history indicates unequivocally that

28 Congress did not intend for violators of the temporary law to be

2O

I punished with the harsh penalties normally attendant Schedule I

2 offenses:

3 If a substance is subject to the

temporary control provided in new subsection

4 (h) of 21 U.S.C. 811, the penalty for its

illegal manufacture, distribution,

5 dispensing, or possession with intent to

engage in such conduct, is to be treated the

6 same as that provided in 21 U.S.C.

841(b) (i) (C) for Schedule III substances.7

8 S. Rep. No. 225, 98th Cong. 2d Sess., reprinted in 1984 U.S. Code

9 Cong. & Ad. News 3182, 3446.

10 In addition, the legislative history indicates that the

11 emergency classification power was intended to be limited to

12 controlling substances with no currently accepted medical use in

13 the United States, H.R. Rep. No. 835 Part l, 98th Cong.. 2d Sess.

14 l0 (June 12, 1984). This decision of the Subcommittee was based

15 on significant concerns about the impact an emergency scheduling

16 authority would have on the manufacture and distribution of drugs

17 that are currently used in legitimate madical settings. Id.

18 In examining the particular substances

for which the scheduling action was most

19 necessary, the Subcommittee concluded that

limiting the authority only to substances

20 that have no currently accepted medical usein treatment addressed both the legitimate

21 concerns of those in the health care industry

and the principal danger to the public?2 health.

.IZ Id.

24 It is not clear why Congress failed to enact the law as

25 originally intended. However, based upon the foregoing, it is

26 clear that the means chosen by Congress to effectuate the public

z? interest is unecessary and inappropriate to the proposed end, and

26 is unreasonably harsh and oppressive. The purpose of the statute

- 21

I could just as easily be served by permitting classifications in

2 other schedules, which would thereby enable and/or facilitate

3 needed research to continue. Accordingly, section 811 (h), as it

4 exists, violates due process and the statue must be struck down.

5 B. There Is No Rational Basis For Allowing

The Invocation of The Emergency Power6 Without Regard to Appropriate Criteria

7 The fact that Congress intended 60 expedite the

8 controlling of substances when there is an imminent threat to

9 public safety does not justify granting emergency power to

10 classify substances in Schedule I without regards to appropriate

11 criteria set forth in section 811(b). As seen above, the

12 Attorney General may invoke the emergency power clause of

13 subsection (h) without regard to medical and scientific

14 evaluations, without regard to a drug's actual or relative

15 potential for abuse, without regard to scientific evidence of its

16 pharmacological effect, if known, without regard to the state of

17 current scientific knowledge regarding the drug, without regard

18 to its psychic or physiological dependence liability, and without

19 regard to whether the substance is an immediate precursor of a

20 substance already controlled under the CSA.

21 By eliminating considerations of medical and scientific

22 data, and abrogating the comparison of relative abuse, Congress

23 has left the executive with virtually unfettered discretion to

24 place substances in Schedule I by simply declaring that there is

25 "an imminent hazard to the public safety" on the subjective

26 evaluation of "actual abuse." One is left only to guess how such

27 a determination can reasonably be made.

28 Thus, the ambiguous criteria with which the Attorney

)2

I General is supposed to base his decision do not provide a

2 rational basis for declaring a substance unlawful on nothing more

3 than a notice in the Federal Register. They certainly do not

4 provide a rational basis for mandating inclusion of a substance

5 in Schedule I, amongst the most dangerous drugs in society with

6 no accepted medical use whatsoever.

Z Furthermore, by definition, drugs should not be

8 included in Scheudle I unless there is no currently accepted

9 medical use for the drug in the United States and the drug has a

10 high potential for abuse relative to the drugs in the other

11 schedules. 21 U.S.C.A. Section 812 (b) (1981). Thus, it is

12 completely irrational to include substances in the most

13 restrictive schedule without regard to the definitional

14 characteristics of the schedule. Therefore, determinations to

15 exercise the emergency power are per se unreasonable and

16 oppressive, in violations of due process.

17 IV.

18 THE EXTENSION OF THE EMERGENCY SCHEDULING OF MDMA

BY THE DEA WAS ARBITRARY AND CAPRICIOUS19 IN VIOLATION OF DUE PROCESS

20 On May 22, 1986, the Administrative Law Judge, for the

21 DEA, Francis L. Young, issued his final decision in the case of

22 In the Matter of MDMA SCHEDULING, Docket No. 84-48 (attached

23 hereto as Exhibit B). Judge Young recommended that MDMA be

24 placed in Schedule III. After an extensive and thorough

25 examination of all the evidence, Judge Young found that MDMA has

26 a currently accepted medical use in treatment in the United

27 States, that there is no "lack of accepted safety for use" of

28 MDMA "under medical supervision," and that MDMA does not have a

23

I "high" potential for abuse. Based on those findings Judge Young

2 held that the only proper schedule for MDMA is Schedule III.

3 Thereafter, on June 17, 1986, the DEA published its

4 extension of the emergency scheduling of MDMA in Scheudle I for

5an additional six months or until the conclusion of the

6rulemaking process, whichever comes first. 51 Fed. Reg. 21911

7 (1986).

8 The decision of the DEA Administrator to continue the

9emergency scheduling of MDMA as a Schedule I substance in light

10 of the opinion of its Administrative Law Judge to the contrary

11 lends substantial support to defendants' contention that the DEA

12 Administrator exercised his discretion, if any he had - See

13 Discussion at IV. B. supra, in an arbitrary and capricious manner

14 as to the extension of the emergency schedule of MDMA.

15 Instructive of the discretion that an administrative

16 agency is required to exercise before taking action are cases

17 construing the Administrative Procedure Act, 5 U.S.C. Section

18 706(2)(A) which provides for reversal of agency actions that are

19 "arbitrary, capricious [or] an abuse of discretion."

20 Along that line, in early 1971, the Supreme Court

21 announced that the presumption of regularity to which an agency

22 head's decision is entitled "is not to shield his action from a

23 thorough, probing in-depth review." Citizens to Preserve Overton

24 Park v. Volpe, 401 U.S. 402, 415 (1971). Further, the Court went

25 on to say that:

26 The court is first required to decide

whether the Secretary acted within the scope27 of his authority. (Citation.) This

determination naturally begins with a

28 delineation of the scope of the Secretary'sauthority and discretion. (C_ta_ _on_) . . .

I

Scrutiny of the facts does not end, however,2 with the determination that the Secretary has

acted within th scope of his statutory

3 authority. Section 706(2) (A) requires a

finding that the actual choice was made not

4 "arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance

5 with the law." Id., at 415-16.

6 The Supreme Court remanded that matter in Overton Park to the

7 district court for "plenary review of the Secretary's decision."

8 In so doing, the Court noted that such review was to be based on

9 the full administrative record that was before the Secretary at

10 the time he made his decision. In addition, the court imposed

11 the following, and unprecedented, requirement:

12 [S]ince the bare record may not disclose thefactors that were considered or the

13 Secretary's construction of the evidenceit

may be necessary for the Distric Court to

14 require some explanation in order to

determine if the Secretary acted within the

15 scope of his authority and if the Secretary's

action was justifiable under the applicable16 standard.

IZ The court may require the administrative

officials who participated in the decision to

18 give testimony explaining their action. Ofcourse, such inquiry into the mental

19 processes of administrative decisionmakers is

usually to be avoided.

20 United States v. Morgan, 313 U.S. 409, 422(1941). And where there are administrative

21 findings that were made at the same time asthe decision, as was the case in Morgan,

?2 there must be a strong showing of bad faith

or improper behavior before such inquiry may_;3 be made. But here there are not such formal

findings and it may be that the only way24 there can be effective judicial review is by

examining the decisionmakers themselves. See

25 Shau_hnessy v. Accardi, 349 U.S. 280 (1955).

__6 The Ninth "Circuit has followed this approach and

?'7 permitted "exploration" of agency decision-making. Asarco, Inc.

26 v.U.S. Environmental Protection Agency, 616 F.2d 1153, 1159 (9th

J;

25

I Cir. 1980); Kunaknana v. Clark, 742 F.2d 1145, 1149 (9th Cir.

2 1984).

3 An agency is under a clear obligation to examine the

4 relevant data prior to issuing an agency rule or decision.

5 il Failure to consider an important aspect of the problem will

e lJ render an agency action arbitrary and capricious. Motor Vehicle

7 Manufs. Ass'n v. State Farm Mutual Automobile Insur. Co., 463

8 U.S. 29, 42-43 (1983). See also Electricity Consumers Resource

9 Council v. FERC, 747 F.2d 1511, 1518 (D.C. Cir. 1984) (order

10 vacated where agency failed to consider relevant factors and to

11 articulate a reasonable basis for its decision); Asarco_ Inc. v.

12 U.S. EPA, supra (court went outside agency record to evaluate

13properly whether agency acted arbitrarily and capriciously by

14 failing to consider all relevant factors and found agency inquiry

15 inadequate and remanded the matter to the agency); RSR Corp. v.

18 EPA, 528 F. Supp. 1251 (N.D. Tex. 1984) (agency's failure to

17 consider important aspects of problem rendered its decision

18 arbitrary and capricious).

Ig An agency must articulate a satisfactory explanation

20 for its actions, including a rational connection between the

21 facts found and the choices made. Motor Vehicle Manufs. Ass'n

22 v. State Farm Mutual Automobile Insur. Co., 463 U.S. 29, 43

23 (1983). Agency action is arbitrary and capricious if the agency

24 offers an explanation that runs counter to the evidence before

25 the agency. Id.

28 In the instant case, the DEA's decision to extend the

27 emergency scheduling of MDMA as a Schedule I substance beyond

28 July i, 1986, was after receiving the final opinion of Judge

26

I Young, an arbitrary and capricious exercise of agency action that

2 should not be sustained.

3 V.

4 THE EMERGENCY SCHEDULING OF MDMA BY THE DEA

WAS NOT NECESSARY TO AVOID AN5 IMMINENT HAZARD TO THE PUBLIC HEALTH

6 Assuming, arguendo, that the DEA Administrator could

Z lawfully classaify a substance in Schedule I under the emergency

8 provision in section 811 (h), such scheduling of MDMA was an

9 abuse of discretion because it was not necessary to avoid an

10 imminent hazard to the public safety. Additionally, the findings

11 of the DEA necessary to classify MDMA in Schedule I fly in the

12 face of the DEA's own Administraive Law Judge and the

13 overwhelming evidence known to the DEA at the time of the initial

14 order and certainly at the time of the emergency extension

15 published on June 17, 1986 following the May 22, 1986 opinion of

16 Judge Young. Thus, the DEA's order temporarily classifying MDMA

17 in Schedule I and the subsequent emergency extension should be

18 struck down, and the charges relating thereto against McLAUGHLIN

19 and BERNAUER should be dismissed.

20 Subsection (h) expressly provides that the Attorney

21 General may place a substance in Schedule I on a temporary basis

_ only when necessary to avoid an imminent hazard to the public

23 safety. 21 U.S.C.A. Section 811(h) (i) (West Supp. 1986). The

24 legislative history also indicates that where drugs are

25 investigationally new, the power should be exercised only in

26 extraordinary situations. "The Committee does not envision the

17 emergency scheduling procedure used to control such drugs except

28 in the most unusual circumstances inflicting a most serious

27

I danger to the public health." H.R. Rep. No. 835 Part I, 98th

2 Cong. 2d Sess., 13 (June 12, 1984).

3 When the DEA Administrator announced his intention to

4 temporarily classfiy MDMA in Schedule I, the Administrator

5conclusively stated that MDMA poses an imminent hazard to the

6public safety. 50 Fed. Reg. 23118 (1985). The notice quotes a

7provision in the House Report accompanying the new law) H.R.

8 Rep. No. 835, that the emergency scheduling is intended to apply

9 to "what has been called 'designer drugs, new chemical analogs

10 or variations of existing controlled substances, which have a

11 psychedelic, stimulant, or depressive effect and have a high

12 potential for abuse." Id. The notice further quoted the House

13 Report that the provision may apply to "substances which have

14 been known to chemists for some time, (which) are 'discovered' by

15 illicit drug researchers to have psychedelic affects." Id. The

16 Administrator then concluded that "3,4-Methylene-dioxy-

17 methamphetamine (MDMA) is such a so-called designer drug ...

18 which Congress clearly intended to be considered for emergency

19 scheduling. " Id.

20 However, from the same House Report, it is quite

21 evident that drugs such as MDMA were not intended to be subject

22 to the emergency scheduling absent "the most unusual

23 circumstances inflicting a most serious danger to the public

24 health." H.R. Rep. No. 835 Part I, 98th Cong. 2d Sess., 13 (June

25 12, 1984) .

26 Furthermore, MDMA is not really a "designer drug,"

27 since "designer drugs" are new psychotropic substances developed

28 by underground chemists seeking to evade the controls on specific

28

I compounds by altering slightly the chemical composition of

2 controlled substances. See Shafer, "The War on Drugs is Over,

3 The Government has Lost,". Inquiry, February 1984, p. 14 MDMA,

4 on the other hand, is not a "street drug" developed to escape the

5 federal drug laws. Rather, MDMA is a therapeutic drug which has

6 been around long before the CSA ever went into effect, and is

7 used by Psychiatrists in a legitimate medical setting. See Brain

8 Mind Bulletins, Frontiers of Research, Theory, and Practice, Vol.

9 10, Nos. 8 (April 15, 1985), 12 (July 8, 1985), Vol ll No. 1

10 (November 18, 1985). (Copies of relevant portions are attached

11 as Exhibit "D" and incorporated herein by reference.)

12 Substantial evidence was presented to the DEA and the

13 Administrative Law Judge during the proceedings in Washington

14 D.C. regarding the scientific and medical value of the drug.

15 Much of this information was known to the DEA prior to its

16 decision to temporarily classify MDMA in Scedule I and certainly

17 was known to the DEA prior to its extension of the emergency

18 scheduling. Judge Young's opinion cites chapter and verse

19 regarding the fact that the MDMA does have an "accepted medical

20 use in treatment in the United States." This opinion ws

21 presumably known to the DEA when the extension of the emergency

?2 scheduling was published, yet apparently was not considered.

?3 It appears that the Administrator relied totally and

24 exclusively on the fact that there was clandestine production of

25 MDMA and that there was some increasing advertisement of MDMA as

28 a euphoariant. From these "facts" the Administrator bootstrapped

_:? all of the other necessary findings.

26 The bottom ine is that there has been no evidence of

il

29

I recurrent, long-term or habitual use of MDMA. Thus, it is

2 apparent that the DEA acted in an arbitrary and capricious manner

3 with regard to any authority it may have had under subsection (h)

4 when it attempted to classify MDMA is Schedule I under the guise

5 that MDMA posed an imminent hazard to the public health. The

6 evidence before the DEA, certainly at the time of the extension

7 of the emergency scheduling, shows that MDMA clearly did not pose

8 such a hazard. The fact of the matter is that the DEA saw fit to

9 circumvent the safeguards of 811 (a) by relying on the new powers

10 under section 811(h), perhaps because the overwhelming evidence

11 in the 811(a) proceeding and the decision of its Administrative

12 Law Judge require that MDMA should be placed in Schedule III.

13 (CF. 51 Fed. Reg. 36552-60 wherein the DEA published it final

14rule placing MDMA in Schedule I, notwithstanding the evidence to

15 the contrary. It is not clear what effect this final rule has on

!6 these proceedings, inasmuch as the current prosecution is based

17 on the extension of the emergency scheduling of MDMA. Leave is

18 requested to further brief this issue should the Court deem it

19 necessary. )

20 What is clear is that the DEA acted arbitrarily and

21unreasonably in making a finding that there was "an imminent

22 hazard to the public health" posed by MDMA both at the time of

23 the emergency scheduling and its extension, and that decision

24 violates the Due Process Clause of The Constitution.

25 CONCLUSION

26 Because the emergency classification of MDMA under 21

27 U.S.C.A. section 811(h) and its six month extension are

28 unconstitutional, and no other laws prohibit the possession,

3O

Isale, or distribution of MDMA, this court lacks jurisdiction in

2 the above-captioned matter and Defendants' Motion to Dismiss

3 shouid be granted.

4 While each of Defendants' grounds for dismissal

5 independently constitute a sufficient basis for a dismissal, the

6 combination of deficiencies associated with the joint action of

7 Congress, the Attorney General, and the DEA in this legislative

8scheme present an even more compelling case for dismissal. If

9 not exactly a seamless web of overreaching, it can clearly be

10 seen that each unconstitutional action in this case followed

11 naturally from another.

12 First, the arbitrary and unreasonable nature of the

13 Congresssional reaction to "designer drugs" as manifested in CSA

14section 811(h), coupled with its lack of criteria, guidelines,

15 and safeguards, issued a clear invitation to implement the

16 statute in an arbitrary and unreasonable manner, indeed to

17 implement this statute without any authority from the Attorney

18 General. Thus, the DEA found an easy path to forge ahead with

IS scheduling of MDMA despite substantial evidence within its

20 possession that MDMA did not present the imminent hazard to the

21 public safety contemplated in subsection (h), and despite the

_? decisions of its own Administrative Law Judge.

23 Second, the fact that Congress failed to provide a less

24 draconian method to remove substances having less than a high

25 potential for abuse from street traffic, compelled the DEA to set

26 forth grounds for classification that had no relation to

__7 scientific evidence.

28 Finally, this lack of safeguards-- notice, hearings,

31

I and separate order -- resulted in a fatal error by the Attorney

2 General when he failed to subdelegate the authority for emergency

3scheduling to DEA. In other words, the DEA was invited to "shoot

4 from the hip." The DEA accepted and wound up shooting itself.

5 While the exact result may not have been predictable at the time

6 CSA section 811 (h) was enacted, the profusion of errors,

Z confusion and unconstitutional action of the DEA in this case can

8 come as no surprise.

9 Accordingly, Defendants McLAUGHLIN and BERNAUER

10respectfully request that this Court dismiss the McLAUGHLIN

11 Indictment and Count II of the BERNAUER Indictment.

12 DATED: October 29, 1986

13 Respectfully submitted,

14 LARSON & WEINBERG

16 By: _O/_0_/ _ _DORON WEINBERG _) DAVID W. DRATMAN

17 Attorney for Defendant Attorney for DefendantPAUL MICHAEL BERNAUER ROBERT MARK McLAUGHLIN

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