The opinion of the court was delivered by: DUMBAULD
Defendants, following a non-jury trial, were convicted of the charges contained in Count 2 of the Indictment (but acquitted under Count 1, relating to transactions on a different date). Count 2 charged violation of 21 U.S.C. § 841(a)(1) on or about August 1, 1973, in that defendants distributed 9,886 capsules of "Phendimetrazine, a Schedule III controlled substance." Motions in arrest of judgment, or for new trial, are pending.
The so-called "Comprehensive Drug Abuse Prevention and Control Act of 1970" established five classes of "controlled substances." Schedule III included drugs having less "potential for abuse" than those specified in Schedules I and II. 21 U.S.C. § 812(c) established an initial list of Schedule III drugs, and by 21 U.S.C. § 811(a) the Attorney General was empowered "by rule" to add to any Schedule "any drug or other substance" if he finds "that such drug or other substance has a potential for abuse." Such "rules" must be formulated pursuant to the rulemaking procedures of the Administrative Procedure Act (5 U.S.C. § 551 et seq.) which require due notice, hearing, and the like (5 U.S.C. § 553).
Defendants contend that the Attorney General must act personally in order to add a new substance, such as phendimetrazine, to Schedule III, relying upon U.S. v. Giordano, 416 U.S. 505, 510, 513-16, 40 L. Ed. 2d 341, 94 S. Ct. 1820 (1974). At the request of the Court this issue was briefed by the parties.
However, we are confirmed in our initial impression that Giordano is inapplicable here. That case related to the authorization of wire-tapping, which is commonly regarded as an improper "dirty business"
except under unusual conditions. Accordingly Congress insisted that such activities be engaged in only pursuant to "the mature judgment of a particular, responsible Department of Justice official." Hence 18 U.S.C. § 2516 specified that authority to permit wiretaps should be vested in a small circle of specifically enumerated officials, namely "the Attorney General, or any Assistant Attorney General specially designated by the Attorney General."
We therefore conclude that phendimetrazine is indeed a Schedule III controlled substance. It became such on June 15, 1973, pursuant to an order, dated June 12, 1973, signed by John E. Ingersoll, Director of the Bureau of Narcotics and Dangerous Drugs in the Department of Justice,
and published in the Federal Register of June 15, 1973 (Vol. 38 No. 115, pp. 15719-22).
Paragraph 1 of the provisions in the order of June 15, 1973, regarding effective dates, required persons distributing or proposing to distribute phendimentrazine to "obtain a registration to conduct that activity on or before August 1, 1973."
Paragraph 8 subjected to criminal liability any activity with said drug not authorized by, or in violation of, the Act of 1970, occurring after June 15, 1973, except that any person not registered "but who is entitled to registration" may "continue to conduct normal business or professional practice with those substances between the date on which this order is published and the date on which he obtains the proper registration."
Defendants contend that this "grandfather clause" made their dealings in phendimetrazine legal up until August 1, 1973.
Disregarding complexities regarding computation of time,
it suffices to point out that the Indictment alleges that the offense occurred on or about August 1, 1973, and that the regulation required registration "on or before August 1, 1973." There is no evidence in the record either that defendants had obtained (or had even applied for) registration before August 2 succeeded August 1 in history. Nor is there any evidence that defendants during the period between June 15, 1973, and August 1, 1973, were "entitled to registration" permitting them to handle phendimetrazine.
Defendants contend that it was the burden of the Government to establish their non-entitlement as part of the crime.
It is provided in 21 U.S.C. § 885(a)(1) that the Government need not negative any statutory exemption or exception in any indictment or in any trial, but that "the burden of going forward with the evidence with respect to any such exemption ...