United States v. Wiles

3 M.J. 577, 1977 CMR LEXIS 844

• Court: U S Coast Guard Court of Military Review
• Decided: March 15, 1977
• Docket: CGCM 9946; Docket No. 805
• Status: Published

Opinions

OPINION OF THE COURT

ROSENWASSER, Chief Judge:

The CGC GLACIER arrived in the port of Callao, Peru, on Operation Deep Freeze 76 on 21 March 1976 for a three-day stay-over. Fireman Apprentice Wiles, the accused herein, was among the ship’s personnel given liberty on 22 March. As a result of his activities on that date, aboard ship and ashore, Wiles was tried and convicted by the instant general court-martial on two drug-related charges. He was found guilty of possessing cocaine in violation of a lawful general regulation of the Coast Guard and also of conspiracy to violate the regulation by possessing cocaine, offenses respectively under Articles 92 and 81 UCMJ, 10 U.S.C. §§ 892 and 881.

The court members sentenced Wiles to confinement at hard labor for 12 months, total forfeitures, reduction in rate and a bad conduct discharge. Following review by his staff legal officer, the Superintendent, Coast Guard Academy, (acting on the record in place of the convening authority who was disqualified by reason of witness grants of immunity) reduced the period of confinement and forfeitures to five months, approved the reduction in rate, and remitted the bad conduct discharge on probation for one year from the date of release from confinement.

The majority of the judges of this court find that the accused was in fact and in law correctly convicted. The dissenting view is that the conviction cannot stand — that punishable offenses have not been alleged. The dissent reasoning is that the Coast Guard regulation prohibits cocaine only insofar as cocaine is a “controlled substance” on a schedule established by the Comprehensive Drug Abuse and Control Act of 1970, 21 U.S.C. §§ 801-966; and that the government’s failure to update and republish schedules pursuant to 21 U.S.C. § 812 had, by the date of Wiles’ alleged offenses, left cocaine as an uncontrolled substance, so that his activities on 22 March 1976 were not in violation of either the Act or the regulation.

To refute this view we turn to an examination of a portion of the Act itself; but it is necessary first to set forth the relevant regulation. It is section 9-2-15, Coast Guard Regulations, 1975, published 7 February 1975, as follows:

9-2-15 Narcotics, Marijuana, and Other Controlled Substances

A. Except for authorized medicinal purposes, the introduction, possession, use, sale, or other transfer of marijuana, narcotic substances, or other controlled substances on board any ship, craft, or aircraft of the Coast Guard or within any Coast Guard station or other place under the jurisdiction of the Coast Guard, or the possession, use, sale, or other transfer of marijuana, narcotic substances, or other controlled substances by persons in the Coast Guard is prohibited.

B. The term “controlled substance” means: a drug or other substance included in Schedule I, II, III, IV, or V established by Section 202 of the Comprehensive Drug Abuse Prevention and Control Act of 1970 (84 Stat. 1236), as updated and republished under the provisions of that Act.

This court rejects the notion that a failure to republish schedules nullifies controls under the Act and vitiates the enforceability of the regulation.

The comprehensive enactment of October 27, 1970,¹ superseded earlier drug laws, including the Harrison Narcotic Act of 1914 and its progeny ²; the Drug Abuse Control Amendments of 1965³; and the marihuana tax laws⁴.

Congress defined the term “controlled substance” in the Act at 21 U.S.C. § 802(6) to mean

. a drug or other substance or immediate precursor included in schedule I, II, III, IV, or V of (21 USC 812). The term does not include distilled spirits, wine, malt beverages, or tobacco

Section 812 of Title 21 established five schedules; subsection (c) contained the five initial schedules listing the drugs-and other substances which the Act itself placed under control. Section 812(a) provided in part:

The schedules established by this section shall be updated and republished on a semi-annual basis during the two-year period beginning one year after the date of enactment of this subchapter and shall be updated and republished on an annual basis thereafter.

The criteria for placement of additional substances in the schedules are declared in 812(b). The first criterion for each schedule is the potential for abuse. Schedules I and II list substances with “a high potential for abuse”; Schedule III lists substances having a lesser potential for abuse, while those on IV and V have “a low potential for abuse.” Substances on Schedule I have “no currently accepted medical use.” Among 81 substances placed in the initial Schedule I are: heroin, marihuana, LSD and mescaline.

Substances in Schedule II may have a currently accepted medical use, but for these substances, abuse “may lead to severe psychological or physical dependence.” Congress placed coca leaves and its derivatives — and therefore cocaine⁵ — in Schedule II.

The government republished schedules in the Federal Register on May 12,1972, January 8, 1973, March 30, 1973, and June 20, 1974. But after June 20,1974, no schedules were republished, to and including the whole of the year 1976. Does failure to republish mean that there were no controlled substances in March of 1976 when FA Wiles conspired to, and did, possess cocaine? We think not. A careful reading of portions of the Act and an awareness of the concern of Congress with drug abuse, convince us that Congress did not in the least provide for or permit the controlled substances listed in the initial schedules to be decontrolled as a consequence of a mere failure to update and republish schedules.

In the first section of the Act, 21 U.S.C. § 801, Congress made the preliminary “finding and declaration” that:

(2) The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people.

In Section 811 Congress meticulously set forth the procedures to be followed before the contents of the five schedules could be changed in any way — whether by addition, or by removal, or by transfer of a drug or other substance from one schedule to another. The Attorney General was given the power to issue a rule to remove a drug from the schedules “if he finds that the drug . does not meet the requirements for inclusion in any schedule” (811(a)(2)). An opportunity for a hearing before issuance of a rule adding or removing or transferring a substance was provided for.

Let us suppose that the removal of a controlled substance from the schedules was being considered. Section 811(b) directs:

The Attorney General shall, before initiating proceedings ... to remove a drug or other substance entirely from the schedules, and after gathering the necessary data, request from the Secretary (of Health, Education and Welfare) a scientific and medical evaluation, and his recommendations, as to whether such drug . should be . removed as a controlled substance . . . 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 . . that the drug or other substance should be removed entirely from the schedules, he shall initiate proceedings for removal . . . under subsection (a) of this section.

Before making a finding that a drug or other substance does not meet the requirements for inclusion in any schedule, the Attorney General is directed by subsection (c) of section 811 to consider the following factors with respect to the substance:

(1) Its actual or relative potential for abuse.⁶

(2) Scientific evidence of its pharmacological effect, if known.

(3) The state of current scientific knowledge regarding the drug

(4) Its history and current pattern of abuse.

(5) The scope, duration, and significance of abuse.

(6) What, if any, risk there is to the public health.

(7) Its psychic or physiological dependence liability.

(8) Whether the substance is an immediate precursor of an already controlled substance.

Even assuming that the Attorney General found and that the Secretary recommended that a drug ought to be decontrolled, the Attorney General still could not issue a rule removing the drug from the schedules established by the Act, if control of the drug “is required by United States obligations under international treaties, conventions, or protocols.” 21 U.S.C. § 811(d). Thus, section 811(d) applies to any substance that the Single Convention on Narcotic Drugs,⁷ ratified by the United States in 1967, requires, to be controlled. (Both marihuana and cocaine are covered by the Convention.) Section 811(d) must be read in conjunction with section 811(a); the Attorney General’s authority to decontrol a drug does not extend to drugs which the United States is required by international convention to control. See United States v. Kiffer, 477 F.2d 349 (CA 2, 1973).

We note just one other provision of the Act: In the first sentence of section 812(c), Congress directed that “unless and until amended pursuant to section 811” the schedules would consist of the drugs and substances Congress put in those schedules.

The provisions above examined make the legislative meaning with regard to removing a drug or other substance from the initial schedules unmistakeable. If Congress placed a drug or other substance in a schedule,. it stays there; it may be removed only by the Attorney General under carefully spelled-out procedures, but only if the United States is not obliged by an international agreement to keep the substance under control. It would seem that the only other path to decontrol would be via a superseding Act of Congress. It would seem to be clear that the law enacted by Congress does not allow a mere failure to republish schedules to have the effect of decontrolling everything, and of repudiating the Single Convention on Narcotic Drugs.

Accordingly we hold that despite the failure to republish schedules after June 20, 1974, cocaine remained a controlled substance within the meaning of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Accord: United States v. Andrews, D.C., 408 F.Supp. 1007 (1976). See also: United States v. Eddy, 549 F.2d 108 (CA 9, 1976). It follows that, as a controlled substance within the meaning of the Act, cocaine was also within the prohibition of Section 9-2-15, CG Regs. 1975.

But even assuming that, as a legal consequence of the failure to republish schedules, cocaine was not a controlled substance in March of 1976, we would nevertheless still regard Part A of the regulation as effectively prohibiting its possession. Part A provides:

Except for authorized medicinal purposes, the introduction, possession, use, sale, or other transfer of marijuana, narcotic substances, or other controlled substances on board any ship, craft or aircraft of the Coast Guard or within any Coast Guard station or other place under the jurisdiction of the Coast Guard, or the possession, use, sale, or other transfer of marijuana, narcotic substances, or other controlled substances by persons in the Coast Guard is prohibited.

Earlier drug regulations of the Coast Guard, from Article 1759 of the 1923 Regulations until Section 15-2-17 of the 1955 Regulations was amended in 1969, dealt exclusively with “narcotic or other habit forming drugs” or “narcotic substances.” The so-called hard narcotics banned by the earlier regulations became “controlled substances” under the terminology of the 1970 Act. But Part A of the 1975 Coast Guard Regulation bans narcotic substances (and marihuana) irrespective of their being included in the definition of “controlled substances.” Narcotics are, of course, within the Act’s definition of “controlled substance”; but the regulation expressly prohibits them without regard to their being defined as controlled substances. We need look to the schedules in the Act only to see what other drugs and substances are reached by the regulation.

The findings of guilty and the sentence as mitigated are affirmed.

1 . Pub.L. 91-513, 21 U.S.C. §§ 801-966.

2 . 26 U.S.C. § 4701 et seq. (repealed 1970).

3 . 21 U.S.C. § 321 et seq. (repealed 1970). See CG Law.Bui. 380-381 (1967).

4 . 26 U.S.C. § 4741 et seq. (repealed 1970).

5 . In section 802(16) of the Act, cocaine was concluded in the definition of “narcotic drug.” The classification of cocaine as a narcotic was not a factor in its placement in Schedule II, but it did permit the imposition of higher penalties under section 841 of the Act. In a number of federal court cases it was argued that the classification of cocaine as a narcotic was arbitrary and capricious; that it was erroneous as a matter of scientific fact; and that cocaine belonged in a less heavily penalized classification or schedule. However the courts have uniformly upheld the Act’s classification of cocaine as a narcotic and its placement in Schedule II as reasonable and constitutional. See United States v. Smaldone, 484 F.2d 311 (CA 10, 1973); cert. den. 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974); United States v. Amidzich, D.C., 396 F.Supp. 1140 (1975); United States v. DiLaura, D.C., 394 F.Supp. 770 (1974); United States v. Hobbs, D.C., 392 F.Supp. 444 (1975).

Pharmacologically, cocaine is not a narcotic. In “Drugs on the College Campus”, a publication of the NASPA Drug Education Project, 1967, Dr. Helen H. Nowlis writes (p. 33):

“. . cocaine, quite in contrast to opium and its derivatives, is a stimulant and is never classed pharmacologically as a narcotic . One may, however, develop strong psychological dependence on this drug, and depression, fatigue, and delusions may persist for some time after withdrawal. This is an example of a drug which, although it is not pharmacologically a narcotic and does not produce physiological dependence or tolerance, is legally classified as a narcotic

Federal legislation first classed cocaine as a narcotic in the Act of May 26, 1922, ch. 202, § 1(a), 42 Stat. 596. See also Padilla v. United States, 278 F.2d 188 (CA 5, 1960). In court-martial law cocaine has consistently been treated as a narcotic. Para. 213a, MCM 1951 and 213b, MCM I960, declared it a violation of the general article (Art. 134) wrongfully to possess “marihuana or a habit forming narcotic drug.” Reported cases tried under Article 134 where the narcotic drug- was cocaine, include: United States v. Fisher, 21 U.S.C.M.A. 213, 44 C.M.R. 277 (1972); United States v. Steed, 51 C.M.R. 549, 2 M.J. 442 (A.C.M.R. 1975); United States v. Couisnard, 47 C.M.R. 765 (AFCMR 1973). See also: Military Judges’ Guide, DA Pam. 27-9 (1969), p. 4-165; Naval Courts and Boards 1937, form spec. 5, p. 53.

6 . “Cocaine’s designation as a drug with a high potential for abuse is not open to much debate.” History and Regulation of Cocaine, 58 Cornell Law Review 537 at 569 (1973).

7 . 18 UST 1407, T.I.A.S. No. 6298.