The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendant Ramiro Rodriguez ("Rodriguez") moves to dismiss the
indictment because the Court lacks subject matter jurisdiction over him.
On November 27, 2001, Rodriguez was found guilty of one count of
conspiracy to possess and distribute cocaine in violation of
21 U.S.C. § 841(b)(1)(A), 846, a Class A felony. Rodriguez is
currently scheduled to be sentenced on February 11, 2004. Rodriguez moved
to dismiss the indictment on December 5, 2003. The Government responded
by letter dated December 23, 2003, and the motion was deemed fully
submitted on December 31, 2003.
Rodriguez argues that the indictment against him should be dismissed
because the Court lacks subject matter jurisdiction over him. While
Rodriguez brings his motion under Rule 12(b)(2) of the Federal Rules of
Criminal Procedure, it is Rule 12(b)(3)(B)
that permits the Court to hear "at any time while the case is pending .
. . a claim that the indictment or information fails to invoke the
court's jurisdiction or to state an offense." Fed.R.Crim.P. 12(b)(3)(B).
Rodriguez argues that 21 U.S.C. § 841 and 846 are applicable only
to "regulated persons," and that because he is not a regulated person,
nor is he in contract or partnership with a regulated person, the law is
inapplicable to him. The term "regulated person" means
a person who manufactures, distributes, imports, or
exports a listed chemical, a tableting machine, or an
encapsulating machine or who acts as a broker or
trader for an international transaction involving a
listed chemical, a tableting machine, or an
21 U.S.C. § 802(38). Nothing in the language of § 841 or §
846, however, indicates that the statutes under which Rodriguez was
convicted apply only to regulated persons. Section 841(a)(1) provides
that "[e]xcept as authorized by this subchapter, it shall be unlawful for
any person knowingly or intentionally to manufacture, distribute, or
dispense a controlled substance." (emphasis added). Section 846 similarly
provides that "[a]ny person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to the same penalties
as those prescribed for the offense, the commission of which was the
object of the conspiracy." (emphasis added).
Rodriguez's argument that he is exempt from §§ 841 and 846 is drawn
from the "except as authorized by this subchapter" language in §
841(a). Rather than restricting the application of the law to all but
regulated persons, however, the phrase makes clear that a subset of
persons whose activities are monitored by the government may distribute
certain controlled substances under limited circumstances. Anyone who is
not a registered or regulated person within the meaning of the statute is
subject to the blanket prohibition in § 841 and the conspiracy
provision of § 846. Registered persons may also be convicted under
§ 841 as well. See United States v. Moore, 423 U.S. 122,
96 S.Ct. 335, 46 L.Ed.2d 333 (1975) (holding that registered physicians may be
prosecuted for violation of § 841 when their activities fall outside
the usual course of professional practice).
Rodriguez's arguments with regard to § 841(a)(2) are to no avail.
That section prohibits the distribution of counterfeit substances, not
controlled substance, and Rodriguez has shown no connection between the
two subsections that is relevant to his conviction. Further, nothing in
Moore can be interpreted as holding that non-registrants are not subject
to § 841. The Supreme Court there described the conduct prohibited by
§ 841 colloquially as "the offense of acting as a `drug pusher,'"
id. at 138, which clearly encompasses the distribution of controlled
substances by a non-registrant.
Rodriguez's motion to dismiss the indictment for lack of subject matter
jurisdiction is accordingly denied.
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