United States v. William Waldo Emerson, United States of America v. Scott Wollman, United States of America v. Bruce Ehrlich

846 F.2d 541 UNITED STATES of America, Plaintiff-Appellee, v. William Waldo EMERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Scott WOLLMAN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bruce EHRLICH, Defendant-Appellant. Nos. 86-5267, 86-5274 and 86-5275. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 2, 1987. Decided May 10, 1988. Yolanda Orozco, Los Angeles, Cal., for defendant-appellant Emerson. Michael D. Nasatir, Nasatir & Hirsch, Santa Monica, Cal., for defendant-appellant Ehrlich. J. Brendan O'Neill, Santa Monica, Cal., for defendant-appellant Wollman. Michael W. Emmick, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before HUG, BOOCHEVER and WIGGINS, Circuit Judges. BOOCHEVER, Circuit Judge: 1 William Waldo Emerson, Scott Wollman, and Bruce Ehrlich (defendants) appeal their convictions under 21 U.S.C. Secs. 841 (a)(1) and 846 (1982) for distributing and conspiring to distribute 3,4-methylenedioxymethamphetamine, also known as MDMA or Ecstasy (MDMA). Defendants challenge the temporary…

William Waldo Emerson, Scott Wollman, and Bruce Ehrlich (defendants) appeal their convictions under 21 U.S.C. §§ 841 (a)(1) and 846 (1982) for distributing and conspiring to distribute 3,4-methylenedioxymeth-amphetamine, also known as MDMA or Ecstasy (MDMA). Defendants challenge the temporary scheduling of MDMA as a controlled substance by the Administrator of the Drug Enforcement Agency (Administrator) under 21 U.S.C. § 811 (h) (Supp.III 1985). We hold that the Attorney General did not properly subdelegate his authority temporarily to schedule drugs to the Administrator and reverse the convictions.

BACKGROUND

Defendants were indicted for their activities involving the distribution of MDMA from or before September 1985 to February 1986. Defendants moved to dismiss the indictment on the ground that the Administrator improperly scheduled MDMA as a temporarily controlled substance. The district court denied the motion. Defendant Emerson then pled guilty to conspiracy to distribute a controlled substance. Defendants Wollman and Ehrlich pled guilty to distribution and conspiracy to distribute a controlled substance. All pleas reserved the right to appeal the court’s order upholding…

dissenting:

Because I disagree with the majority’s conclusion that the Attorney General failed properly to subdelegate to the Administrator of the Drug Enforcement Agency (DEA) his authority to schedule dangerous, new, “designer” drugs temporarily, I dissent.

I do not share the majority’s narrow reading of the Attorney General’s authorization order for delegation of his duties to the DEA. 28 C.F.R. § 0.100 (b) (1986). Although the temporary scheduling procedure of section 811(h) was not part of the original 1970 Controlled Substances Act, it expressly amended the 1970 Act. 21 U.S. C. § 811(h) (1982 & Supp.1984). It would be a strained and unreasonable interpretation of the Attorney General’s authorization order to read it as invalidating all actions taken by the DEA’s Administrator under amendments to the 1970 Act. The 1973 subdelegation clearly contemplated the DEA’s assumption of the Attorney General’s permanent substance scheduling function. The 1984 Act amended the scheduling function to include temporary scheduling. 1

The majority, however, adopts wholesale the analysis of United States v. Spain, 825 F.2d 1426 (10th Cir.1987), and rules to the contrary. I believe Spain was…