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UNITED STATES v. PIATTI
August 2, 1976
UNITED STATES OF AMERICA against RALPH PIATTI, Defendant
The opinion of the court was delivered by: PLATT
By Notice of Motion filed May 7, 1976, defendant moved to dismiss the indictment against him on the grounds that the statutes (21 U.S.C. §§ 811(a) and 812) upon which the indictment is based are unconstitutional in that they represent an improper delegation of legislative power to the Executive Branch of the Federal Government and in that they are violative of due process for failing to warn the defendant that methaqualone is a controlled substance the importation of which is subject to criminal sanctions.
The indictment charges a conspiracy between the defendant and two unindicted co-conspirators, Gary Horwitz and Michael Kardonick, to import into the United States from Lisbon, Portugal, approximately 26,000 tablets of methaqualone, "a Schedule II controlled substance," in violation of Title 21 United States Code Sections 952(a) and 963.
Section 963 of Title 21 of the United States Code (part of subchapter II of Chapter 13 entitled Drug Abuse Prevention and Control) provides in pertinent part that:
"Any person who attempts or conspires to commit any offense defined in this subchapter * * *" is in violation of the law.
Section 952(a) of the same subchapter provides in pertinent part that:
"It shall be unlawful to import into the customs territory of the United States from any place outside thereof (but within the United States), or to import into the United States from any place outside thereof, any controlled substance in schedule I or II of subchapter I of this chapter * * *"
Schedule II of subchapter I is described and set forth in Sections 811 and 812 of Title 21 U.S.C. Section 811 provides in pertinent part with respect thereto as follows:
"(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 substance does not meet the requirements for inclusion in any schedule.
Rules of the Attorney General under this subsection shall be made on the record after opportunity for a hearing pursuant to the rulemaking procedures prescribed by subchapter II of chapter 5 of Title 5. Proceedings for the issuance, amendment, or repeal of such rules may be initiated by the Attorney General (1) on his own motion, (2) at the request of the Secretary, or (3) on the petition of any interested party.
"(b) The Attorney General shall, before initiating proceedings 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 controlled 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 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 determines that these facts and all other relevant data constitute 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 removal, as the case may be, under subsection (a) of this section.
"(c) In making any finding under subsection (a) of this section or under subsection (b) of section 812 of this title, the Attorney General shall consider the following factors with respect to each drug or other substance ...
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