United States District Court, Southern District of New York
December 3, 1991
UNITED STATES OF AMERICA
PAUL F. CASEY, DEFENDANT.
The opinion of the court was delivered by: Leval, District Judge.
MEMORANDUM AND ORDER
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
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
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
I find there is no basis for Casey's contentions. The
evidence submitted by the
Government shows that its officials acted in accordance with
the statutory requirements. It is true that 20 years later the
evidence of what exactly was done is somewhat thin.
Nonetheless the evidence does support the fact that both the
Attorney General and the Secretary of HEW acted in compliance
with the statutory requirements. Casey has made no showing
suggesting the contrary.
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 writing. . . ." Casey's arguments are hypertechnical.
I cannot agree with them.
As to whether the Secretary in fact performed an evaluation,
it is the fair inference of his letter of May 13, 1971, that
he did so. The Attorney General's delegatee, BNDD, requested
HEW to do so both informally in February and more formally by
the Finlator letter. The Secretary replied to BNDD's formal
request to the effect that he had given specific attention to
the factors specified in the statute and stated his medical
and scientific findings relating to methamphetamine. It is the
unmistakable inference of this exchange of letters that the
Secretary performed a medical and scientific evaluation.
Casey suggests nothing to the contrary. He argues only that
the Government should be required to prove more convincingly
with contemporaneous documentation that this was done. There
is no such requirement.
Casey argues that because the Secretary's language tracks
the language of the statute, it should be regarded as mere
parroting which is not to be taken at face value as to what
the Secretary actually did. There is no force to this
argument. The fact that a cabinet officer uses the language of
a statute to assert that he has done exactly what the statute
calls for is not a sufficient reason for finding the contrary.
Secondly, Casey contends that the Richardson letter did not
comply with the requirement of Section 811(b). Section 811(b)
requires the Secretary to deliver a medical and scientific
evaluation in writing. Secretary Richardson's letter does not
describe his conclusions as an "evaluation." He states rather
that he has made certain "findings" with respect to
methamphetamine's potential for abuse, acceptance in medical
uses, and capacity to cause psychological and physical
dependence. Regardless whether the Secretary described that
conclusion as a finding or as an evaluation, it is clear that
it does constitute an evaluation. Describing it as a "finding"
is not incompatible with its being an "evaluation." Indeed, if
anything, the contrary is true; an evaluation is implicit in
the making of a finding.
Because I find that the Secretary of HEW did make the
required evaluation in writing, Casey's third contention
— that the Attorney General could not lawfully proceed to
reschedule because he had not received the required evaluation
in writing from the Secretary — fails. The court concludes
that Casey has failed completely to muster any meaningful
challenge to the lawful and effective rescheduling of
methamphetamine into Schedule II. See United States v. Lane,
931 F.2d 40, 41 (11th Cir. 1991) (BNDD followed proper
procedures in rescheduling methamphetamine); United States v.
Roark, 924 F.2d 1426, 1428-1429 (8th Cir. 1991) (same) United
States v. Kendall, 887 F.2d 240, 241 (9th Cir. 1989) (same).
The petition under 28 U.S.C. § 2255 is accordingly dismissed
and the motion under Rule 35, Fed.R.Crim.P., is denied.