The opinion of the court was delivered by: METZNER
The defendant, Peter LaFroscia, is the subject of a two count indictment. The first charges him with importing approximately 80 kilograms of marihuana into the United States in violation of 21 U.S.C. §§ 952, 960(a). The second charges him with possessing that same marihuana on board a vessel entering the United States in violation of 21 U.S.C. §§ 955, 960(a). He now moves for dismissal of the indictment on the ground that there is no rational basis for Congress to classify marihuana as a controlled substance under 21 U.S.C. § 812. Alternatively, he moves for a dismissal on the ground that if marihuana should be controlled, it should be placed in Schedule V rather than Schedule I where it is currently found.
The defendant argues that marihuana is improperly classified as a controlled substance because of the recent findings of the Commission on Marihuana and Drug Abuse, which was established by Congress when it enacted the Comprehensive Drug Prevention and Control Act of 1970, P.L. 91-513; 84 Stat. 1236 (the Act). The defendant claims that these findings indicate that marihuana does not possess the requisite qualities required for inclusion as a controlled substance under Section 811 of the Act. Alternatively he contends that the Commission's report demonstrates that if it is to be controlled, marihuana belongs in Schedule V, not Schedule I. (See 21 U.S.C. § 812(b)).
The Supreme Court has long ago held that Congress has plenary power to prohibit the importation of narcotics. See, e.g., Brolan v. United States, 236 U.S. 216, 35 S. Ct. 285, 59 L. Ed. 544 (1915). This power flows from Congress' constitutional authority to regulate commerce with foreign nations. In Buttfield v. Stranahan, 192 U.S. 470, 492, 24 S. Ct. 349, 354, 48 L. Ed. 525 (1904), the Court observed:
". . . from the beginning Congress has exercised a plenary power in respect to the exclusion of merchandise brought from foreign countries; not alone directly by the enactment of embargo statutes, but indirectly, as a necessary result of provisions contained in tariff legislation. It has also . . . exerted a police power over foreign commerce by provisions which in and of themselves amounted to the assertion of the right to exclude merchandise at discretion."
See also Daut v. United States, 405 F.2d 312 (9th Cir. 1969), cert. denied, 402 U.S. 945, 91 S. Ct. 1624, 29 L. Ed. 2d 114 (1971). The enactment of Sections 952 and 955 is therefore a permissible exercise of Congress' plenary power.
The constitutionality of the Act, as it applies to marihuana, was recently challenged before the Ninth Circuit in United States v. Rodriquez-Camacho, 468 F.2d 1220 (9th Cir. 1972), which involved a conviction for possession of marihuana with intent to distribute under 21 U.S.C. § 841(a). In affirming the conviction, the court there commented:
"Congress has concluded that '.. controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.' Appellant urges that this assertion is inapplicable to marijuana. This is a matter, however, whose ultimate resolution lies in the legislature and not in the courts. It is sufficient that Congress had a rational basis for making its findings." (468 F.2d at 1222.)
The court sees no reason for disagreeing with the decision of the Ninth Circuit. In addition, Section 801 of Title 21 provides that:
"The illegal importation . . . of controlled substances [has] a substantial and detrimental effect on the health and general welfare of the American people." 21 U.S.C. § 801(2).
Similarly, the legislative history of Title III of the Act provides that "through the provisions of Title III, the importation and exportation of all controlled substances -- narcotics, marihuana . . . -- would be covered by a single statute." 1970 U.S.Code Cong. & Admin.News, p. 4638.
The fact that the Commission on Marihuana and Drug Abuse has recently rendered its first report, which proposes a relaxation of the laws regarding marihuana, does not dictate a different result. Congress has not seen fit to act on the recommendations. Any judicial action at this stage would be an unwarranted intrusion into the legislative province.
There is an alternative ground for upholding the constitutionality of the Act. The United States is a party to the Single Convention on Narcotic Drugs (18 U.S.T. 1407, T.I.A.S. No. 6298, New York, March 30, 1961, ratified by United States, 1967), which binds all signatories to control persons and enterprises engaged in the manufacture, trade and distribution of specified drugs. Marihuana is so specified. The court in Rodriquez-Camacho, supra, concluded that the "enactment of § 841(a)(1) is a permissible method by which Congress may effectuate the American obligation under that treaty." 468 F.2d at 1222. See also, Missouri v. Holland, 252 U.S. 416, 40 S. Ct. 382, 64 L. Ed. 641 (1920). A fortiori, Congress may also meet its treaty obligations by enacting Sections 952 ...