United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
TERRY I. ADELMAN, Magistrate Judge.
The above matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(B). Defendant David Brecker moves to dismiss the indictment in this matter asserting that the categorization of marijuana as a Schedule I Controlled Substance violates the Equal Protection Clause of the Fifth Amendment and that the enforcement policies employed by the United States Department of Justice violate the Tenth Amendment and applicable principles of federalism. The Government responded to the motion and an evidentiary hearing was held on March 11, 2015, and continued on March 16, 2015. For the reasons set forth below, the undersigned recommends that the motions to dismiss the indictment on the grounds that the categorization of marijuana as a Schedule I Controlled Substance and the enforcement policies of the Department of Justice and violate the Equal Protection Clause of the Fifth Amendment and applicable principles of federalism be denied.
In August 2014, Defendant David Brecker and several other individuals were charged by indictment and arrested. Defendant Brecker was charged with the following: (1) two counts of distributing and possessing with intent to distribute marijuana and (2) one count of knowingly conducting and attempting to conduct financial transactions affecting interstate or foreign commerce, which transactions involved the proceeds of specified illegal activity. The marijuana charges stem from alleged violations of the Controlled Substances Act ("CSA"), U.S. C., Title 21, Sections 841 and 846.
On August 29, 2013, Deputy Attorney General James Cole issued a Memorandum to United States Attorneys (the Cole Memorandum"). (Doc. No. 335-1.) Defendant asserts that the Cole Memorandum directs United States Attorneys to decline prosecution of cannabis and marijuana cases against individuals who are possessing, cultivating, and/or distributing marijuana in compliance with their state law.
I. SUBJECT MATTER JURISDICTION
The undersigned will first consider the question of subject matter jurisdiction with respect to Defendant's equal protection claim. The Government has not explicitly questioned the Court's jurisdiction, but the question of subject matter jurisdiction may be raised sua sponte and the undersigned is aware that other courts have declined, on jurisdictional grounds, to hear claims related to the scheduling of substances under the CSA. See United States v. Cotton, 535 U.S. 625, 630 (2002) (holding that a court must assure itself that it has authority to address a claim brought before it).
The CSA establishes five schedules of controlled substances, with each schedule based on different criteria. 21 U.S.C. 812(a)-(b). The Attorney General is permitted to add substances to, transfer substances between, or remove substances from these schedules "if he finds that the... substance does not meet the requirements for inclusion in any schedule. 21 U.S.C. § 811(a)(1)&(2). The CSA further provides:
[a]ll final determinations, findings, and conclusions of the Attorney General under [subchapter I of the CSA] shall be final and conclusive decisions of the matters involved, except that any person aggrieved by a final decision of the Attorney General may obtain review of the decision in the United States Court of Appeals for the District of Columbia or for the circuit in which his principal place of business is located upon petition filed with the court and delivered to the Attorney General within thirty days after notice of the decision.
Id. at § 877.
Despite this apparent prohibition on district court review of administrative scheduling determinations, the Court is satisfied that it has subject matter jurisdiction to consider the current claims. The language noted above does not preclude challenges to scheduling determinations premised upon alleged constitutional infirmities in those statutes. Here, Defendant does not challenge the merit of an administrative scheduling determination. Instead, they claim that the classification of marijuana as a Schedule I drug renders the charges alleged in the indictment unconstitutional. This question falls squarely within the "federal question jurisdiction" of this Court pursuant to 28 U.S.C. § 1331(a). Cf. Nat'l Org. for Reform of Marijuana Laws (NORML) v. Bell, 488 F.Supp. 123, 126 n. 2, 141 n. 43 (D.C.D.C. 1980) (concluding that a district court stating that the court had subject matter jurisdiction to evaluate "the constitutional legitimacy of the classification of marijuana in Schedule I, " while also noting that it "lack[ed] jurisdiction to hear a challenge to an administrative reclassification proceeding").
II. STANDARD OF REVIEW
In order to withstand a motion to dismiss on the basis of constitutional infirmity, an indictment must "contain the elements of the offense charged, " "fairly inform a defendant of the charge against which he must defend, " and enable him to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007) (internal quotation omitted).
Similarly, Federal Rule of Criminal Procedure 7(c)(1) provides that an indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." It is sufficient to state an offense by setting forth the words of the statute itself in the indictment. United States v. Zangger, 848 F.2d 923, 925 (8th Cir. 1988); United States v. Graham, 585 F.Supp.2d 1144, 1147 (D.S.D. 2008).
The reviewing court must determine only whether the indictment is valid on its face. Costello v. United States, 350 U.S. 359, 363 (1956). To the extent that the constitutionality of a federal statute is challenged in the motion to dismiss the indictment, federal statutes are presumed constitutional and should only be invalidated upon a plain showing that Congress ...