Collected, archived, and HTMLed by Erowid
October 2001
- General
- Constitutionality
- Agency relationship
- "Deliver"
- "Dispense"
- "Distribute"
- "Marijuana"
- "Narcotic drug"
- "Practitioner"
- "Ultimate user"
- "United States"
- "Listed precursor chemical"
- Miscellaneous
General
Where methamphetamine hydrochloride did not qualify as narcotic drug under 21 USCS § 802(16), it could not be narcotic drug under borrowing clause of state statute. State v Funk (1973, Mo App) 501 SW2d 526.
Constitutionality
Phrase "in the course of professional practice" as used in 21 USCS § 802(20) is not so vague that it violates due process clause of Fifth Amendment. United States v Rosenberg (1975, CA9 Cal) 515 F2d 190, 33 ALR Fed 196, cert den (1975) 423 US 1031, 46 L Ed 2d 404, 96 S Ct 562.
Congress' classification of cocaine as Schedule II narcotic drug under 21 USCS § 802(16) for imposing penalties is not without rational basis; therefore, such classification does not violate Fifth Amendment due process and equal protection guarantees. United States v Vila (1979, CA2 NY) 599 F2d 21, 4 Fed Rules Evid Serv 507, cert den (1979) 444 US 837, 62 L Ed 2d 48, 100 S Ct 73.
Statutory scheme of 21 USCS §§ 802(32) and 813--under which "controlled substance analogue" is treated as controlled substance to extent it is intended for human consumption--was not, under circumstances of case, unconstitutionally vague. United States v Hofstatter (1993, CA6 Mich) 8 F3d 316, 39 Fed Rules Evid Serv 1006, cert den (1994) 510 US 1131, 127 L Ed 2d 413, 114 S Ct 1101.
Enhancement of defendant's sentences under 21 USCS § 841(b)(1), based on prior state and District of Columbia convictions, did not violate Ex Post Facto Clause of Constitution (art. I, sec. 9, cl. 3), despite defendant's contention that 1994 change in definition of "felony drug offense," codified at 21 USCS § 802(44), impermissibly and retroactively "reclassified" defendant's prior misdemeanors as felonies, since statutory change, like other repeat offender statutes, did nothing more than prospectively define new, more drastic consequences if defendant committed further crime in violation of 21 USCS § 841(b). United States v Glover (1998, App DC) 153 F3d 749.
Enhancement of defendant's sentences under 21 USCS § 841(b)(1), based on prior state and District of Columbia convictions, did not "usurp state's power to classify crimes committed within state's jurisdiction" in violation of Tenth Amendment, since 1994 change in definition of "felony drug offense," codified at 21 USCS § 802(44), merely defined how prior conduct by defendant would be treated for purposes of federal law. United States v Glover (1998, App DC) 153 F3d 749.
Specific exemption of alcohol and tobacco from provisions of 21 USCS § 802 reflects Congress's view that other regulatory schemes are more appropriate for alcohol and tobacco and exclusion does not render scheme unconstitutional; because alcohol and tobacco may adversely effect health does not mean that 21 USCS §§ 801 et seq. is only proper means of regulating them. National Organization for Reform of Marijuana Laws (NORML) v Bell (1980, DC Dist Col) 488 F Supp 123.
Indictment charging distribution of alphaethyltryptamine (AET) in violation of 21 USCS §§ 813, 841 and 846 must be dismissed, where there is no scientific consensus as to whether AET has chemical structure substantially similar to schedule I controlled substances DMT and DET, because definition of "controlled substance analogue" in 21 USCS § 802(32)(A) as applied to AET under these circumstances is unconstitutionally vague, providing neither fair warning nor effective safeguards against arbitrary enforcement. United States v Forbes (1992, DC Colo) 806 F Supp 232.
Agency relationship
Term "agency relationship" is not limited by definition of "agent"; rather entire statutory scheme must be viewed to determine meaning; "agent" status creates exception to general requirement of registration for all persons who manufacture, distribute, or dispense controlled substances; such persons are within legitimate distribution chain, while phrase "whether or not there exists an agency relationship" covers transactions outside legitimate distribution chain as well. United States v Pruitt (1973, CA8 Mo) 487 F2d 1241.
Evidence did not establish "purchasing agent" defense where defendant was charged, not with sale, but with distribution; that defendant did not physically touch drugs did not exonerate him under 21 USCS §§ 802(8), (11), 841. United States v Oquendo (1975, CA5 Tex) 505 F2d 1307.
"Procuring agent" instruction is not applicable to defendant charged with distribution where evidence showed his predisposition to deal in narcotics, acts were voluntary and utilized supply source known to him previously. United States v Marquez (1975, CA10 Colo) 511 F2d 62.
"Deliver"
Under definition of term "distribute" in 21 USCS § 802(11) as meaning "to deliver", and under definition of "delivery" as meaning actual, constructive or attempted transfer of controlled substance in 21 USCS § 802(8), it is intended that defense of agency be nullified respecting distribution of controlled substances prohibited under 21 USCS § 841(a)(1). United States v Miller (1973, CA5 Ga) 483 F2d 61, cert den (1974) 414 US 1159, 39 L Ed 2d 112, 94 S Ct 919, reh den (1974) 415 US 952, 39 L Ed 2d 568, 94 S Ct 1477.
Definitions of "deliver" and "distribute" in 21 USCS § 802(8), (11), are broad enough to include acts traditionally defined as aiding and abetting. United States v Oquendo (1975, CA5 Tex) 505 F2d 1307.
Definition of term "deliver" contained in 21 USCS § 802(8) completely excluded possibility of "purchasing agent" defense whereby accused would be deemed not guilty if found to have been aiding government agent to purchase narcotics. United States v Snow (1976, CA4 Va) 537 F2d 1166.
Under definition of "distribute" set forth at 21 USCS § 802(11), recipient of drug delivery cannot be convicted of distribution. United States v Baker (1993, CA9 Nev) 10 F3d 1374, 93 CDOS 9154, 93 Daily Journal DAR 15704.
Accused's testimony that he accepted LSD found in his possession from another to return it to its original owner was not inconsistent with plea of guilty to possession of LSD with intent to distribute it in violation of 21 USCS § 841(a)(1) because 21 USCS § 802 (8), (11), define distribution as including actual, constructive, or attempted transfer of controlled substance, regardless of whether or not there is agency relationship. United States v Ellis (1973) 22 USCMA 496, 47 CMR 913.
"Dispense"
In defining "dispense", 21 USCS § 802(10) does not require that, in order to violate 21 USCS § 841, doctor not only prescribe but also administer drug. United States v Bartee (1973, CA10 Colo) 479 F2d 484.
Combined effect of statutory definitions of "dispense" and "practitioner" is to limit meaning of "dispense" to delivery of controlled substances by physician acting in course of professional practice or research; delivery of controlled substances outside course of professional practice or research constitutes "distributing", which violates 21 USCS § 841(a)(1), even if carried on by registered physician. United States v Badia (1973, CA1 Mass) 490 F2d 296.
Owner of drugstore "dispenses" controlled substances for purpose of recordkeeping requirements of 21 USCS §§ 827, 843, even though drugstore owner is not licensed pharmacist. United States v Robinson (1983, CA4 NC) 707 F2d 811, 12 Fed Rules Evid Serv 2023.
"Distribute"
Under definition of "distribute" in 21 USCS § 802(11) and definition of term "deliver" in 21 USCS § 802(8), sale was not required for transfer of narcotics to constitute "distribution" under 21 USCS § 841(a)(1). United States v Workopich (1973, CA5 Fla) 479 F2d 1142.
Actions of defendant in procuring heroin from other parties in exchange for money taken from government agents were clearly within scope of statutory definition of "distribution". United States v Johnson (1973, CA5 Ga) 481 F2d 645.
Under definition of term "distribute" in 21 USCS § 802(11) as meaning "to deliver", and under definition of "delivery" as meaning actual, constructive or attempted transfer of controlled substance in 21 USCS § 802(8), it is intended that defense of agency be nullified respecting distribution of controlled substances prohibited under 21 USCS § 841(a)(1). United States v Miller (1973, CA5 Ga) 483 F2d 61, cert den (1974) 414 US 1159, 39 L Ed 2d 112, 94 S Ct 919, reh den (1974) 415 US 952, 39 L Ed 2d 568, 94 S Ct 1477.
Combined effect of statutory definitions of "dispense" and "practitioner" is to limit meaning of "dispense" to delivery of controlled substances by physician acting in course of professional practice or research; delivery of controlled substances outside course of professional practice or research constitutes "distributing", which violates 21 USCS § 841(a)(1), even if carried on by registered physician. United States v Badia (1973, CA1 Mass) 490 F2d 296.
Definitions of "deliver" and "distribute" in 21 USCS § 802(8), (11) are broad enough to include acts traditionally defined as aiding and abetting. United States v Oquendo (1975, CA5 Tex) 505 F2d 1307.
Term "distribute" in 21 USCS § 802 is not restricted to distribution of drug to ultimate consumer; it also may, in appropriate circumstances, refer to distribution of controlled substance from one conspirator to another. United States v Pool (1981, CA5 Fla) 660 F2d 547, 9 Fed Rules Evid Serv 490.
Given clarity and specificity of Congress' definition of term "distribution" in 21 USCS §§ 802(11) and 802(8), district court's "concrete involvement" gloss on distribution element of offense of distribution of controlled substance under 21 USCS § 841(a)(1) was both unnecessary and unwarranted. United States v Santistevan (1994, CA10 Utah) 39 F3d 250.
Where defendant and co-conspirator divided methamphetamine between themselves after manufacturing it, this act of delivery and transfer amounted to distribution under 21 USCS §§ 802 and 841, even if they and additional co-conspirator planned to use methamphetamine only for personal use, since sharing drugs with another constitutes "distribution." United States v Hester (1998, CA8 Mo) 140 F3d 753.
Accused's testimony that he accepted LSD found in his possession from another to return it to its original owner was not inconsistent with plea of guilty to possession of LSD with intent to distribute it in violation of 21 USCS § 841(a)(1) because 21 USCS § 802 (8), (11), define distribution as including actual, constructive, or attempted transfer of controlled substance, regardless of whether or not there is agency relationship. United States v Ellis (1973) 22 USCMA 496, 47 CMR 913.
"Marijuana"
By definition of marijuana as used in 21 USCS § 802(15), it is absolutely clear that Congress meant to outlaw all plants popularly known as marijuana to extent those plants possessed THC. United States v Walton (1975) 168 US App DC 305, 514 F2d 201.
Although definition of marihuana in 21 USCS § 802(15) refers only to Cannabis sativa L., Cannabis indica and Cannabis ruderalis are also included. United States v Gaines (1974, CA5 Fla) 489 F2d 690.
Definition of "marijuana" in 21 USCS § 802(15) includes all types of species of Cannabis plant; consequently, in prosecution for possession of marijuana, prosecution need not prove that substance found in defendant's possession consisted of proscribed portions of Cannabis plant. United States v Spann (1975, CA10 Kan) 515 F2d 579.
To extent hashish contains THC it is controlled substance under 21 USCS § 802(15). United States v Kelly (1976, CA9 Idaho) 527 F2d 961.
District Court did not err in instructing jury that 21 USCS § 802(15), which defines marijuana as plant cannabis sativa L, comprehends other forms of plant and prohibits possession of all varieties of marijuana. United States v Gagnon (1980, CA10 Okla) 635 F2d 766, cert den (1981) 451 US 1018, 69 L Ed 2d 390, 101 S Ct 3008.
21 USCS § 802(15) outlaws all species of marijuana containing tetrahydrocannabinol. United States v Lupo (1981, CA7 Wis) 652 F2d 723, cert den (1982) 457 US 1135, 73 L Ed 2d 1353, 102 S Ct 2964.
Although statutory definition of marijuana specifically accepts stalks, offense to which defendant plead guilty, 21 USCS § 841, defines illegal substance as mixture containing marijuana; therefore, court may include stalks in calculating amount for purpose of sentencing. United States v Berry (1989, CA8 Minn) 876 F2d 55.
Sentencing Guideline note instructing District Courts to consider total weight of marijuana in sentencing was not in conflict with 21 USCS § 802 and § 960, under which net weight of marijuana was properly calculated for conviction purposes, since sentencing court may consider evidence at sentencing that may not be considered in determining guilt. United States v Vasquez (1992, CA5 Tex) 951 F2d 636.
Under USSG § 2D1.1 and 21 USCS § 841, sterilized marijuana seeds need not be extracted from package containing pure marijuana before weighing for sentencing purposes, since fact that sterilized seeds do not fall within definition of "marijuana" under 21 USCS § 802(16) does not control whether they fall under definition of "mixture or substance containing a detectable amount of [marijuana]" under USSG § 2D1.1(c), Note A. United States v Garcia (1998, CA9 Cal) 149 F3d 1008, 98 CDOS 5545, 98 Daily Journal DAR 7727, cert den (1998, US) 67 USLW 3363.
Although "mature stalks" are specifically excluded from statutory definition of marijuana under 21 USCS § 802(16), stalks can still constitute part of "mixture or substance" containing detectable amount of marijuana for calculation of weight of controlled substance seized. United States v Swanson (2000, CA7 Wis) 210 F3d 788.
Congress intended inclusion of indicia variety within definition of marijuana. United States v Moore (1970, ED Pa) 330 F Supp 684, affd (1971, CA3 Pa) 446 F2d 448, cert den (1972) 406 US 909, 31 L Ed 2d 820, 92 S Ct 1617.
Conviction for possession with intent to distribute "quantity of hashish, substance containing tetrahydrocannabinol" will not be overturned, despite defendants' argument that evidence was insufficient to prove that what they possessed was controlled substance, and that variance between description of charge or drug possessed in indictment and jury instructions and proof of charge or drug possessed presented at trial requires acquittal, because (1) even though actual seized substance or chemical analysis thereof was never adduced at trial, testimony by evidence technician who issued substance to undercover agents who sold it to defendants, by police officer present with drug dog at scene of arrest, and by forensic chemist who gave definitions of "hashish" and "sea-hash" was sufficient to show beyond reasonable doubt that substance seized from defendants was illegal "derivative of marijuana" under 21 USCS §§ 812, 802(16), and (2) defects in indictment and jury instructions which mistakenly characterized hashish seized as "substance containing THC" instead of "derivative of marijuana" neither confused jury nor affected any substantial right of defendants so as to require upset of conviction under 21 USCS § 841(a)(1). United States v McMahon (1987, DC Me) 673 F Supp 8, affd (1988, CA1 Me) 861 F2d 8.
For purposes of 21 USCS § 801, et seq., marijuana is "controlled substance." United States v One 1977 36 Foot Cigarette Ocean Racer (1985, SD Fla) 624 F Supp 290.
Farmer and organization that wanted to cultivate cannabis sativa plants to produce fiber and other industrial products had standing to challenge DEA's interpretation of definition of "marijuana" at 21 USCS § 802(16); threat of prosecution was sufficiently realistic that court was not precluded from providing injunctive or declaratory relief to foreclose federal criminal prosecution; issue was ripe for review; farmer's failure to seek federal license to produce marijuana did not preclude judicial review; however, definition of marijuana under § 802(16) includes all cannabis sativa plants, including those destined for industrial products. New Hampshire Hemp Council, Inc. v Marshall (2000, CA1 NH) 203 F3d 1.
"Narcotic drug"
Definition of "narcotic drugs" as used in predecessor to this section included cocaine. Lastra Padilla v United States (1960, CA5 Fla) 278 F2d 188.
Percodan tablets containing one per cent of "dihydrohydroxycodeinone hydrochloride" commonly called codeinone, were narcotics within meaning of predecessor to this section. Rivas v United States (1966, CA9 Cal) 368 F2d 703, cert den (1967) 386 US 945, 17 L Ed 2d 875, 87 S Ct 980.
Combined effect of statutory definitions of "dispense" and "practitioner" is to limit meaning of "dispense" to delivery of controlled substances by physician acting in course of professional practice or research; delivery of controlled substances outside course of professional practice or research constitutes "distributing", which violates 21 USCS § 841(a)(1), even if carried on by registered physician. United States v Badia (1973, CA1 Mass) 490 F2d 296.
Congress has prerogative to classify cocaine, which is non-narcotic central nervous system stimulant, as narcotic for penalty and regulatory purposes. United States v Stieren (1979, CA8 Iowa) 608 F2d 1135.
In determining whether certain substance was opiate derivative drug enforcement agency administrator under 21 USCS § 802, may consider the substance's pharmacological effects as aspect of definition of "derivative," and administrator's rejection of "2-step" definition of derivative in which it is said that substance is derivative of another only if it can be produced from it in only one or 2 chemical operations, is sufficiently reasonable and consistent with the act's purposes to warrant judicial deference, particularly considering the administrator's expertise in area. Reckitt & Colman, Ltd. v Administrator, Drug Enforcement Admin. (1986, App DC) 252 US App DC 120, 788 F2d 22.
Although statutory definition of "narcotic drug" is broader than dictionary definition, Congress need not follow latter in applying term to number of different classes of drugs for purposes of legal control; classification of cocaine within definition of "narcotic drug" under 21 USCS § 802(16) is not arbitrary and irrational. United States v Di Laura (1974, DC Mass) 394 F Supp 770.
Legislative history of 21 USCS § 802(15) indicates definition of marijuana was intended to only include those parts of marijuana which contain tetrahydrocannabinol. Thomas v United States (1976, Dist Col App) 352 A2d 390.
Definition of marijuana as Cannabis sativa within meaning of 21 USCS § 802(15) includes all Cannabis, even though Cannabis sativa is only one of several species of marijuana. People v Riddle (1975) 65 Mich App 433, 237 NW2d 491.
"Practitioner"
"Osteopathic physicians" in Kansas were not "physicians." Burke v Kansas State Osteopathic Assn, Inc. (1940, CA10 Kan) 111 F2d 250.
Doctor who acts other than in course of professional practice is not practitioner under Controlled Substance Act and is therefore not authorized to prescribe controlled substances and is subject to criminal provisions of act. United States v Rosenberg (1975, CA9 Cal) 515 F2d 190, 33 ALR Fed 196, cert den (1975) 423 US 1031, 46 L Ed 2d 404, 96 S Ct 562.
Osteopath was "physician." Hostetler v Woodworth (1928, DC Mich) 28 F2d 1003.
"Ultimate user"
Term "ultimate user" includes person who has obtained drug for his own use; it does not require that he in fact use it therefor. United States v Bartee (1973, CA10 Colo) 479 F2d 484.
"United States"
Suitcase containing cocaine which had been abandoned on luggage carousel at Miami Airport had been imported into "United States" within meaning of 21 USCS § 802(26). United States v Catano (1977, CA5 Fla) 553 F2d 497, 2 Fed Rules Evid Serv 73, cert den (1977) 434 US 865, 54 L Ed 2d 140, 98 S Ct 199.
"Controlled substance analogue"
In prosecution pursuant to 21 USCS §§ 802(32) and 813--under which "controlled substance analogue" is treated as controlled substance to extent it is intended for human consumption--witness' testimony that "cat" was sold at house while defendant was staying there and performing experiments with precursor chemicals was admissible, since testimony was highly probative as showing purpose to which precursor chemicals were likely put. United States v Hofstatter (1993, CA6 Mich) 8 F3d 316, 39 Fed Rules Evid Serv 1006, cert den (1994) 510 US 1131, 127 L Ed 2d 413, 114 S Ct 1101.
Controlled Substance Analogue Enforcement Act of 1986 (21 USCS §§ 802(32) and 813) was not unconstitutionally vague as applied to defendants who pleaded guilty to conspiracy to manufacture and distribute 3,4-Methylenedioxymethamphetamine (MDMA). United States v Carlson (1996, CA11 Fla) 87 F3d 440, 10 FLW Fed C 81.
"Listed precursor chemical"
Sufficient evidence supported defendants' convictions, pursuant to 21 USCS §§ 802(32) and 813, for possessing and conspiring to possess "listed precursor chemicals" with intent to manufacture controlled substance analogues, despite facts that no finished controlled substances or controlled substance analogues were found among defendant's supplies and possessions and that certain cleaners or solvents normally used to manufacture such chemicals were also absent. United States v Hofstatter (1993, CA6 Mich) 8 F3d 316, 39 Fed Rules Evid Serv 1006, cert den (1994) 510 US 1131, 127 L Ed 2d 413, 114 S Ct 1101.
Sufficient evidence supported defendant's conviction under 21 USCS § 802 for knowingly possessing listed precursor chemical, ephedrine, with reasonable cause to believe it would be used to manufacture methamphetamine, where, inter alia, bag found in defendant's pickup truck contained ephedrine, partial recipe for methamphetamine, and pager, and where packaging materials, razor blade, scales, and large sum of cash in small denominations were found in defendant's possession. United States v Mattarolo (2000, CA9 Cal) 209 F3d 1153, 2000 CDOS 2888, 2000 Daily Journal DAR 3927.
Miscellaneous
Under 21 USCS §§ 802 and 811(e), Attorney General may choose to classify Phenyl-2-Propanone (P-2-P) as Schedule II controlled substance, because controlled substances amphetamine and methamphetamine, of which P-2-P is listed immediate precursor, are so classified. United States v Killion (1993, CA10 Kan) 7 F3d 927, cert den (1994) 510 US 1133, 127 L Ed 2d 418, 114 S Ct 1106.
Under 21 USCS § 802(44), use of expansive term "relating" as only substantive limitation on reach of statutory phrase "felony drug offense" clearly indicates that statute encompasses drug offenses that involve simple possession of drugs. United States v Spikes (1998, CA6 Ohio) 158 F3d 913, 49 Fed Rules Evid Serv 1564, 1998 FED App 273P, cert den (1999, US) 142 L Ed 2d 692, 119 S Ct 836 and cert den (1999, US) 119 S Ct 836.
District court did not err in imposing 10-year mandatory minimum sentence pursuant to 21 USCS § 841(b)(1)(B) for possession of cocaine with intent to distribute, since defendant's prior conviction for solicitation to unlawfully possess narcotic drug under Arizona's general purpose solicitation statute met definition of "felony drug offense" under 21 USCS § 802(44). United States v Meza-Corrales (1999, CA9 Ariz) 183 F3d 1116, 99 CDOS 5692, 99 Daily Journal DAR 7285.
Evidence was insufficient to support defendant's convictions for importing anabolic steroids in violation of 21 USCS §§ 952 and 960 and possessing anabolic steroids with intent to distribute in violation of 21 USCS § 841, where government failed to offer evidence that ester derivatives possessed and imported by defendant promoted muscle growth, as required for salts, esters, and isomers under statutory definition at 21 USCS § 802(41)(A)(xxviii); moreover, clandestine nature of defendant's transportation of vials of liquid, along with quantity involved, was not enough by itself to supply missing evidentiary link. United States v Orduno-Aguilera (1999, CA9 Cal) 183 F3d 1138, 99 CDOS 5729, 99 Daily Journal DAR 7323.
Sufficient evidence supported defendant's conviction, under 21 USCS § 802, for knowingly possessing ephedrine with reasonable cause to believe that chemical would be used to manufacture methamphetamine, where, inter alia, ephedrine was found in bag during search of defendant's pickup truck along with pager and other materials indicating possession of drugs for distribution. United States v Mattarolo (1999, CA9 Cal) 191 F3d 1082, 99 CDOS 7035, 99 Daily Journal DAR 8975, amd, reh, en banc, den (1999, CA9) 198 F3d 1166, 2000 CDOS 55, 2000 Daily Journal DAR 68.
Provisions of 21 USCS §§ 802(34) and 841(d)(2) prohibiting distribution of precursor chemicals ephedrine and pseudoephedrine with reasonable cause to believe they will be used to manufacture methamphetamine apply to over-the-counter decongestants that are mixtures containing other ingredients and binders in addition to ephedrine and pseudoephedrine. United States v Daas (1999, CA9 Cal) 198 F3d 1167, 2000 CDOS 50, 2000 Daily Journal DAR 74.
Because cocaine base and crack cocaine are mixtures that contain cocaine and are derived from coca leaves, both substances are encompassed by schedule II and are therefore scheduled "controlled substances" under 21 USCS § 802(6). Sanders v United States (2001, CA2 Conn) 237 F3d 184, post-conviction relief den (2001, CA2) 2001 US App LEXIS 392 and cert den (2001, US) 149 L Ed 2d 647, 121 S Ct 1667.
Unlawful re-entrant's sentence will not be enhanced 16 levels under § 2L1.2 for previous deportation for criminal offense, where, under Massachusetts law, first offense possession with intent to distribute marijuana is misdemeanor, even though possession with intent to distribute marijuana is felony under federal law, because government's reading of 21 USCS § 802(13) would force sentencing court to reconsider facts of defendant's conviction and attempt to equate that hypothetical analysis with actual conviction, which is unacceptable procedure. United States v Gomez-Ortiz (1999, DC RI) 62 F Supp 2d 508.