Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 1 of 15 PageID #: 2371

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1 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 1 of 15 PageID #: 2371 FLORENCE T. NAKAKUNI #2286 United States Attorney District of Hawaii MICHAEL K. KAWAHARA #1460 Assistant U.S. Attorney PJKK Federal Building 300 Ala Moana Blvd., #6-100 Honolulu, HI Ph: (808) Fax: (808) Mike.Kawahara@usdoj.gov IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII UNITED STATES OF AMERICA, ) CR. NO LEK-01 ) Plaintiff, ) MEMORANDUM IN OPPOSITION TO ) DEFENDANT ROGER CUSICK vs. ) CHRISTIE'S MOTION TO ) DISMISS INDICTMENT; ROGER CUSICK CHRISTIE, (01) ) CERTIFICATE OF SERVICE; SHERRYANNE L. CHRISTIE, (02) ) ATTACHMENTS 1" & 2" Formally known as ) Sherryanne L. St. Cyr ) SUSANNE LENORE FRIEND, (03) ) TIMOTHY M. MANN, (04) ) RICHARD BRUCE TURPEN, (05) ) WESLEY MARK SUDBURY, (06) ) DONALD JAMES GIBSON, (07) ) ROLAND GREGORY IGNACIO, (08) ) PERRY EMILIO POLICICCHIO, (09) ) Hearing Date: 2/15/13 at JOHN DEBAPTIST BOUEY, III, (10) ) 10:00 a.m. before the Hon. MICHAEL B. SHAPIRO, (11) ) Leslie E. Kobayashi, U.S. also known as "Dewey", ) District Judge AARON GEORGE ZEEMAN, (12) ) VICTORIA C. FIORE, (13) ) JESSICA R. WALSH, also (14) ) known as "Jessica Hackman, ) ) Defendants. ) ) MEMORANDUM IN OPPOSITION TO DEFENDANT ROGER CUSICK CHRISTIE S MOTION TO DISMISS INDICTMENT

2 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 2 of 15 PageID #: 2372 The United States of America, by and through its undersigned counsel, hereby opposes defendant Roger Cusick Christie s Motion to Dismiss Indictment filed December 3, 2012 (hereinafter dismissal motion ). I. PRELIMINARY MATTERS: 1. The Controlled Substances Act and relevant provisions pertaining to the rescheduling of controlled substances: When enacted in 1970, the Controlled Substances Act, 21 U.S.C. 801 et. seq. (hereinafter CSA ), set forth schedules of drugs and controlled substances. See 21 U.S.C. 812(c). Marijuana has always been present in schedule I since the CSA s inception. See 21 U.S.C. 812, Schedule I(c)(10). Congress also established procedures in the CSA for adding or removing substances from the schedules (control or decontrol), or to transfer a drug or substance between schedules (reschedule). See 21 U.S.C. 811(a). This responsibility was assigned to the Attorney General in consultation with the Secretary (of the Department) of Health and Human Services ("DHHS"). See 21 U.S.C. 811(b). The Attorney General further delegated his/her functions to the Administrator of the Drug Enforcement Administration ( DEA ). 28 C.F.R (b). Current schedules are published at 21 C.F.R There are three methods by which the DEA may initiate rulemaking proceedings to revise the schedules of controlled substances: (1) by the DEA's own motion; (2) at the request of

3 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 3 of 15 PageID #: 2373 DHHS; or (3) on the petition of any interested party. See 21 U.S.C. 811(a); 21 C.F.R (a). Before initiating rulemaking proceedings, the DEA must request from DHHS a scientific and medical evaluation and a recommendation. The statute further requires the DEA and DHHS to consider eight factors with respect to the drug or controlled substance. See 21 U.S.C. 811(b) & (c). These factors are: (1) its actual or relative potential for abuse; (2) scientific evidence of its pharmacological effect, if known; (3) the state of current scientific knowledge regarding the drug or other substance; (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; and (8) whether the substance is an immediate precursor of a substance already controlled under this subchapter. See 21 U.S.C. 811(c). Although the recommendations of DHHS are binding on the DEA as to scientific and medical considerations involved in the eight-factor test, the ultimate decision as to whether to initiate further rescheduling proceedings is made by the DEA. See 21 U.S.C. 811(a), (b). 2. The most recent effort to have marijuana rescheduled failed in 2011, based upon studies and other research examined and analyzed by DHHS and DEA. At pages 4-40 of his Memorandum of Law accompanying his 2

4 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 4 of 15 PageID #: 2374 dismissal motion, Christie has attempted to demonstrate that marijuana use is not dangerous and does not warrant being characterized as a schedule I controlled substance. However, contrary to the impression created by Christie s moving papers, the issue of marijuana s deleterious efforts and negative impact on society is by no means settled at the current time. There have been a number of efforts to have DEA reschedule marijuana from schedule I to lesser levels as schedule III, IV, or V, presumably relying in large measure upon the same studies (or their ilk) cited by Christie. Just about a year and a half ago, by letter dated June 29, 2011, the DEA Administrator denied the most recent effort to do so, stating, inter alia, that: In accordance with the CSA rescheduling provisions, after gathering the necessary data, DEA requested a scientific and medical evaluation and scheduling recommendation from the Department of Health and Human Services (DHHS). DHHS concluded that marijuana has a high potential for abuse, has no accepted medical use in the United States, and lacks an acceptable level of safety for use even under medical supervision. Therefore, DHHS recommended that marijuana remain in schedule I. The scientific and medical evaluation and scheduling recommendation that DHHS submitted to DEA is attached hereto.[ 1 ] 1 The criteria for placement in schedule I are set forth in 21 U.S.C. 812(b)(1), as follows: (A) The drug or other substance has a high potential for abuse. (B) The drug or other substance has no currently accepted medical use in treatment in the United States. (C) There is a lack of accepted safety for use of the drug (continued...) 3

5 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 5 of 15 PageID #: 2375 Based on the DHHS evaluation and all other relevant data, DEA has concluded that there is no substantial evidence that marijauna should be removed from schedule I. A document prepared by DEA addressing these materials in detail also is attached hereto. [emphasis added] This letter and all of the enumerated attachments and supporting documentation were thereafter published in the Federal Register, see 76 FR , 2011 WL (F.R.), [b]ecause DEA believe[d] that this matter [wa]s of particular interest to members of the public. 76 FR at For the Court s easy reference, a copy of these DEA-DHHS published materials in the Federal Register (some 38 pages long) is appended hereto as Attachment 1". As indicated therein, both DHHS and DEA utilized the statutorily-mandated, eight-factor test to analyze and ultimately conclude that the rescheduling of marijuana was not appropriate at this time. We submit that the referenced studies and other information contained in Attachment 1" substantially refute much of what Christie has proffered in his dismissal motion. However, the substantive correctness of what Christie and the United States have proffered is not the issue here. Rather, for the purposes of Constitutional due process analysis, it would be sufficient to note that this public controversy over marijuana is still ongoing and that it should 1 (...continued) or other substance under medical supervision. 4

6 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 6 of 15 PageID #: 2376 not be expected to significantly abate in the near future. This point has been emphasized in a news article published just yesterday (January 13, 2013) in the Sunday Star Advertiser entitled Pot not as harmless as once perceived, new studies suggest, 2 which, among other things, reported that: Still, legalization takes users into murky territory. Even though marijuana is the most commonly used illegal drug in the United States, questions about its health effects remain. For starters, this is not your parents pot. Today s marijuana is much more potent. This mean[s] concentration of THC, the psychoactive ingredient, in confiscated cannabis more than doubled between 1993 and Increased potency might be having unforeseen consequences. The human brain s cannabinoid receptors are typically activated by naturally occurring chemicals in the body called endocannabinoids, which are similar to THC. There is a high density of cannabinoid receptors in parts of the brain that affect pleasure, memory and concentration. Some research suggests that these areas continue to be affected by marijuana use even after the high dissipates. It s much more potent marijuana, which may explain why we ve seen a pretty dramatic increase in admission to emergency rooms and treatment programs for marijuana, said Dr. Nora D. Volkow, director of the National Institute on Drug Abuse. Atch 2" at 1-2 [emphasis added]. II. THERE IS NO LEGAL PRECEDENT SUPPORTING THE EXTRAORDINARY RELIEF UNDER THE DUE PROCESS CLAUSE WHICH CHRISTIE SEEKS IN HIS MOTION. At the outset, it must first be remembered that Congress itself originally placed marijuana in schedule I when enacting 2 A true and correct copy of this news article is appended hereto as Attachment 2". 5

7 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 7 of 15 PageID #: 2377 the CSA. Second, Congress also simultaneously ordained in the CSA an administrative procedure by which rescheduling of controlled substances could be effected based upon the latest scientific and medical studies. And third, Congress never intended this administrative procedure to be summarily bypassed, particularly with regards to marijuana. In 1998, Congress passed its sense of the Congress resolution entitled Not Legalizing Marijuana for Medicinal Use, 112 Stat to This resolution, in pertinent part, declared: Congress continues to support the existing Federal legal process for determining the safety and efficacy of drugs and opposes efforts to circumvent this process by legalizing marijuana, and other Schedule I drugs, for medicinal use without valid scientific evidence and the approval of the Food and Drug Administration. Quoted from United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483, 493(n.6)(2001). In addition, a number of Federal courts have also judicially recognized the continuing dangerousness of marijuana. For example, in Olsen v. Drug Enforcement Administration Agency, 878 F.2d 1458, 1462 (D.C. Cir. 1989), the D.C. Circuit stated that [e]very federal court that has considered the matter, so far as we are aware, has accepted the congressional determination that marijuana in fact poses a real threat to individuals health and social welfare (quoting from United States v. Rush, 738 F.2d 497, 512 (1st Cir. 1984), cert. denied, 470 U.S. 1004). Most recently, the Seventh Circuit in United States v. Israel, 317 6

8 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 8 of 15 PageID #: 2378 F.3d 768, 771 (7th Cir. 2003), held that there is ample medical evidence establishing the fact that the excessive use of marijuana often times leads to the use of stronger drugs such as heroin and crack cocaine. Consequently, any effort to overturn marijuana s current characterization as a schedule I controlled substance outside of the CSA s administrative procedure will intrude into the legislative arena and would be directly contrary to expressed Congressional intent. In the dismissal motion s supporting memorandum at 1, Christie has contended that the classification of marijuana as a schedule I controlled substance and his prosecution for marijuana trafficking offenses thereunder violates his substantive due process rights under the Fifth Amendment. At the outset, in analyzing any substantive due process claim, one must be mindful of the Supreme Court s cautionary advice in Washington v. Glucksberg, 521 U.S. 702, 720 (1997): We have always been reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and openended. [citation omitted] By extending constitutional protection to an asserted right or liberty interest, we, to a great extent, place the matter outside the arena of public debate and legislative action. We must therefore exercise the utmost care whenever we are asked to break new ground in this field [citation omitted], lest the liberty protected by the Due Process Clause be subtly transformed into the policy preferences of the Members of this Court [citation omitted]. The legal issue of marijuana classification vis a vis substantive due process is not a new one. As an example, the 7

9 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 9 of 15 PageID #: 2379 Eighth Circuit some thirty-one years ago in United States v. Fogarty, 692 F.2d 542 (8th Cir. 1982), was confronted with this question and held that the classification of marijuana as a schedule I controlled substance was not violative of substantive due process. In so finding, the Eighth Circuit observed: [W]e conclude that Fogarty has not met his heavy burden of proving the irrationality of the Schedule I classification of marijuana. First, the ongoing vigorous dispute as to the physical and psychological effects of marijuana, its potential for abuse, and whether it has any medical value, supports the rationality of the continued Schedule I classification. [citation omitted] Furthermore, the three statutory criteria for Schedule I classification set out in [section] 812(b)(1) - high potential for abuse, no medically accepted use, and no safe use even under medical supervision-- should not be read as being either cumulative or exclusive. Thus, even assuming, arguendo, that marijuana has some currently accepted medical uses, the Schedule I classification may nevertheless be rational in view of countervailing factors such as the current pattern, scope, and significance of marijuana abuse and the risk it poses to public health. [citation omitted] Finally, it should be noted that under Section 811 Congress has provided a comprehensive reclassification scheme, authorizing the Attorney General to reclassify marijuana in view of new scientific evidence. In establishing this scheme, Congress provided an efficient and flexible means of assuring the continued rationality of the classification of controlled substances, such as marijuana. 692 F.2d at [emphasis added]. 3 The Eighth Circuit has more recently in United States v. White Plume, 447 F.3d 1067, (8 th Cir. 2006), reaffirmed 3 See note 4 of the Fogarty opinion, 692 F.2d at 547, wherein the Eighth Circuit observed that its holding was in accordance with the heretofore uniformly held view among federal courts that the Schedule I classification of marijuana is rational and, therefore, not violative of equal protection or due process [also expressly citing these cases from other circuits]. 8

10 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 10 of 15 PageID #: 2380 its holding that the CSA s treatment of marijuana did not violate substantive due process, quoting from Fogarty, supra, with approval that: the judiciary may not sit as a superlegislature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines. [citation omitted] We held [in Fogarty] that the ongoing debate about the physical and psychological effects of marijuana and whether it had any medicinal value was a sufficiently rational reason for Congress to include marijuana on Schedule I. The Eighth Circuit s treatment of marijuana classification with respect to the due process clause has mirrored precedent from the other Federal Circuits. To the United States knowledge, no Court has ever held that marijuana s classification as a Schedule I controlled substance constituted either a due process or equal protection violation (in this regard, Christie s dismissal motion has not cited any legal precedent which finds such a Constitutional violation). The foregoing would be true even in the Ninth Circuit, where in Raich v. Gonzales, 500 F.3d 850, (9th Cir. 2007), the Ninth Circuit had to decide whether the Federal criminalization of the manufacture, trafficking, and possession of alleged medical marijuana as a schedule I controlled substance under the CSA - which was arguably permitted under California state law under certain circumstances and when appropriately prescribed-- 9

11 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 11 of 15 PageID #: 2381 constituted a substantive due process violation. 4 On this issue strictly confined to alleged medical marijuana - which, by the way, is no where near as broad and unlimited as that for which Christie has advocated in his dismissal motion-- the Ninth Circuit found that there was no violation, stating that: legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is fundamental and implicit in the concept of ordered liberty. [citation omitted] For the time being, this issue remains in the area of public debate and legislative action. 500 F.3d at 866. III. UNDER THE RATIONAL BASIS TEST, CHRISTIE CANNOT ESTABLISH A SUBSTANTIVE DUE PROCESS VIOLATION. As the Supreme Court pointed out in Glucksberg, supra, substantive due process analysis first requires identifying those fundamental rights and liberties which are, objectively, deeply rooted in this Nation s history and tradition [citations omitted] and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrificed. [citations omitted]. 521 U.S. at The second 4 This case originally started as Raich v. Ashcroft, 248 F.Supp 918 (N.C. Cal 2003). On appeal, the Ninth Circuit held that the CSA s application to purely intrastate activities involving medical marijuana allegedly conducted in compliance with state law constituted an unlawful extension of the commerce clause. Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003). However, the Supreme Court subsequently reversed the Ninth Circuit, holding that the CSA and commerce clause did apply to such activities; in addition, the Supreme Court instructed the Ninth Circuit to address the petitioner s substantive due process contention on remand. Gonzales v. Raich, 545 U.S. 1, 34 (2005). 10

12 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 12 of 15 PageID #: 2382 part of the analysis is determining whether the claimant s alleged interest falls within such fundamental rights and liberties. 521 U.S. at 721. If such a fundamental right was involved, then the Government faced strict scrutiny to justify the infringement thereof. See White Plume, supra, 447 F.3d at The only possible liberty interest Christie could be advocating herein is the unrestricted right to manufacture, traffick and possess marijuana under any and all circumstances. 5 However, no court has ever held such a marijuana right to be fundamental, see White Plume, supra, 447 F.3d at 1075, and in any event, there is no legitimate or logical basis for such an argument to be made. Even Christie s dismissal motion recognizes this and only contends that marijuana s current classification as a Schedule I substance is arbitrary and lacking in any rational justification and therefor constitutionally invalid as applied. Christie s supporting memorandum at 4. As such, Christie s due process contention faces the high hurdle of the rational basis test, which assumes the constitutionality of the statute at issue. White Plume, supra, 447 F.3d at Christie can hardly meet this burden, taking 5 Christie s dismissal motion does not assert that marijuana should be reclassified from schedule I to less severe schedules under the CSA. Rather, he seeks outright exoneration by dismissal of all criminal charges against him. 11

13 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 13 of 15 PageID #: 2383 into account the current degree and extent of the public and scientific/medical debate concerning marijuana. There is, therefore, a rational basis for the existing Congressional policy determination that marijuana should be a schedule I controlled substance. In addition, the rational basis analysis must also factor-in Congress attempt to permit flexibility and change in the classification of controlled substances under the CSA. 6 The bottom line is that on all scores, Christie cannot meet his burden of establishing a due process violation under the rational basis test. // // // // 6 The Supreme Court implied as much in Gonzales v. Raich, supra, 545 U.S. at 33, when it stated: Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals. We therefore do not address the question whether judicial relief is available to respondents on these alternative bases. We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. [emphasis added] In addition, as previously indicated in this memorandum at 8, the Fogerty case stated that these rescheduling provisions should also be taken into account in assessing the overall rationality of controlled substance scheduling under the CSA. 12

14 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 14 of 15 PageID #: 2384 IV. CONCLUSION: For the reasons set forth herein, Christie s dismissal motion should be denied. Dated: January 14, 2013, at Honolulu, Hawaii. FLORENCE T. NAKAKUNI United States Attorney District of Hawaii /s/ Michael K. Kawahara By MICHAEL K. KAWAHARA Assistant U.S. Attorney 13

15 Case 1:10-cr LEK Document 504 Filed 01/14/13 Page 15 of 15 PageID #: 2385 CERTIFICATE OF SERVICE I hereby certify that, on the dates and by the methods of service noted below, a true and correct copy of the foregoing was served on the following at their last known addresses: Served Electronically through CM/ECF: Thomas M. Otake, Esq. Attorney for Defendant ROGER CUSICK CHRISTIE thomas@otakelaw.com DATED: January 14, 2013, at Honolulu, Hawaii /s/ Valerie Domingo U.S. Attorney's Office District of Hawaii