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December 3, 1991


The opinion of the court was delivered by: Leval, District Judge.


This is a petition under 28 U.S.C. § 2255 by Paul F. Casey, who was the defendant in the criminal prosecution in the United States v. Casey, SSS 85 Cr. 0428 (PNL). At the same time it is a motion under Rule 35, Fed.R.Crim.P. Casey seeks to reduce the sentence imposed on him in the criminal prosecution.

The sentence of 9 years imprisonment under Counts One and Five was imposed on the understanding (shared by the court and all parties at the time) that the maximum lawful term of imprisonment was 15 years because sentence was imposed pursuant to the provisions of Title 21, Section 841(b)(1)(B) for "a controlled substance in Schedule I or II." Casey's sentences on Counts One and Five were predicated on the assumption that methamphetamine was a Schedule II controlled substance, as methamphetamine had been transferred from Schedule III to Schedule II on July 7, 1971. See 36 Fed.Reg. 12,734 (1971) and 21 C.F.R. § 308.12(d) (1972). Casey now submits that the purported transfer of methamphetamine from Schedule III to Schedule II did not comply with the requirements of law and was therefore invalid. He contends that methamphetamine consequently remained a Schedule III controlled substance and that his maximum exposure was therefore 5 years imprisonment.

The provision of law that is pertinent to Casey's contention is Section 201(b) of the Controlled Substances Act ("CSA"), 21 U.S.C. § 811(b), which prescribes the procedure to be followed when the Attorney General undertakes to "control" a drug by adding it to a schedule or transferring from one schedule to another. Casey's contentions focus on the function of the Secretary of Health, Education and Welfare ("HEW") under that provision.

The CSA requires the Attorney General, "after gathering the necessary data[, to] request from the Secretary [of HEW] a scientific and medical evaluation, and his recommendations, as to whether such drug . . . should be so controlled. . . ." 21 U.S.C. § 811(b). The CSA goes on to prescribe that "in making such evaluation and recommendations, the Secretary shall consider" certain specified factors, and that "[t]he 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. . . . 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 . . ., he shall initiate proceedings for control. . . ." 21 U.S.C. § 811(b) (emphasis added).

Casey contends that the actions of the Secretary and of the Attorney General were deficient. He contends that although the Secretary made certain findings and recommendations, he did not perform the statutory obligation of making a "scientific and medical evaluation," and communicating it in writing to the Attorney General. He contends further that because the Attorney General did not receive a scientific and medical evaluation in writing from the Secretary, the Attorney General was barred from proceeding to reschedule methamphetamine.*fn1


The affidavits of William Vodra*fn2 and Howard McClain, Jr.*fn3 show that in early 1971, shortly after the passage of the CSA, the Department of Justice ("DOJ" or "Justice") undertook to reschedule methamphetamines from Schedule III to Schedule II. The Bureau of Narcotics and Dangerous Drugs ("BNDD"),*fn4 DOJ, acting under authority delegated by the Attorney General, undertook (as required of the Attorney General by the statute) to gather "the necessary data." Large amounts of pertinent material were collected and from them a report was prepared entitled "Outline: Rescheduling Amphetamines to Schedule II under the Controlled Substances Act." BNDD thereupon submitted material to the Food & Drug Administration ("FDA") which was a part of HEW. The DOJ informally requested of HEW that it make the review and evaluation called for by the statute and furnish recommendations as to the rescheduling of methamphetamine. It appears that HEW undertook the requested analysis and evaluation. The Government's affidavits indicate that there was considerable informal communication between DOJ and HEW during this period on the subject. The Attorney General's representatives in BNDD waited to receive the response of the Secretary to the request. Eventually the HEW staff advised that although they had completed their review, the Secretary of HEW would not furnish his evaluation and recommendation to BNDD because HEW had not received a formal request for such action. Accordingly, on May 7, 1971, John Finlator, Acting Director of BNDD, acting under authority of the Attorney General, made a formal request of HEW by letter. Finlator's letter began by noting his department's failure to date to make a "formal request of [HEW] to consider the medical and scientific data submitted informally to members of your staff on February 1, 1971. . . ." He apologized for the oversight and stated that he was now making "that specific request." The letter concluded, "we presume we will receive your evaluation and recommendations in the near future."

On May 13, 1971, Elliot L. Richardson, Secretary of HEW, wrote a letter to Attorney General John N. Mitchell, stating that it was in response to the request by DOJ "(made informally in February and formally on May 7) that the Department of Health Education & Welfare consider the scientific and medical facts about the amphetamines and methamphetamines and recommend the proper schedule. . . ."

Secretary Richardson's letter went on to state:

    "I have considered these drugs as provided in
  Section 201(b) giving specific attention to the
  factors listed in paragraphs 2, 3, 6, 7 and 8 of
  subsection (c) of that section and the scientific
  or medical considerations involved in paragraph 4
  and 5 of such subsection. I find that the
  amphetamines and methamphetamines have a high
  potential for abuse and are being widely abused;
  that the drugs have currently acceptable medical
  uses in treatment in the United States; and that
  abuse of the drugs may lead to severe
  psychological and physical dependence

  and has led to such severe dependence.
  Accordingly I recommend that the amphetamines and
  methamphetamines be placed in Schedule II. . . ."

Following receipt of this letter, DOJ undertook the statutorily required steps for rescheduling of methamphetamine into Schedule II and it was so rescheduled.

Casey contends it is not shown that the Secretary of HEW made the requisite "scientific and medical evaluation," and that the letter submitted by the Secretary to the Attorney General did not comply with the statutory requirement that "the evaluation and the recommendations of the Secretary[] be made in ...

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