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FRED J. GREENE V. UNITED STATES OF AMERICA - Due Process Under 5th Amendment

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FRED J. GREENE, PETITIONER V. UNITED STATES OF AMERICA

No. 89-6753

In The Supreme Court Of The United States

October Term, 1989

On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Sixth Circuit

Brief For The United States In Opposition

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-6a) is reported
at 892 F.2d 453.

JURISDICTION

The judgment of the court of appeals was entered on December 19,
1989. The petition for a writ of certiorari was filed on February 20,
1990. The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

QUESTIONS PRESENTED

1. Whether the federal government's prosecution of petitioner for
distributing marijuana is consistent with the Free Exercise Clause of
the First Amendment.

2. Whether the classification of marijuana as a Schedule I
substance under the Controlled Substances Act, 21 U.S.C. 801 et. seq.,
was rational and thus consistent with the Due Process Clause of the
Fifth Amendment.

STATEMENT

Following a conditional guilty plea in the United States District
Court for the Middle District of Tennessee, petitioner was convicted
on two counts of distributing marijuana, in violation of 21 U.S.C.
841(a)(1). He was sentenced to two concurrent terms of 18 months'
imprisonment. The court of appeals affirmed.

1. The charges against petitioner arose from the discovery by
police of four kilograms of marijuana, $18,000 in cash, and two loaded
firearms in petitioner's home. The marijuana was packaged in 386
small bags. Pet. App. 3a.

Petitioner moved to dismiss the indictment on two grounds; he
claimed that the charges violated his free exercise of religion and
that the inclusion of marijuana in Schedule I under the Controlled
Substances Act, 21 U.S.C. 801 et. seq., is arbitrary and irrational
and thus a violation of the Due Process Clause of the Fifth Amendment.

At a hearing on the motion, petitioner testified that his religious
beliefs combine elements of Nativde American religion with certain
teachings from the Bible. Petitioner explained that smoking marijuana
enables him to commune with "the Great Spirit," whom he worships.
Petitioner also stated that he sold marijuana to promote his musical
talent which he believed to be a gift from God. He admitted, however,
that he did not consider bagging four kilograms of marijuana into 386
individual packages to be a religious experience. He also admitted
that as many as 100-150 people came to his house each day to obtain
marijuana. Pet. App. 2a-3a.

To support his due process claim, petitioner called an expert
witness, who testified that marijuana does not meet the statutory
criteria for classification as a Schedule I controlled substance. The
witness stated that marijuana's active ingredient has some therapeutic
uses and that marijuana does not produce physical dependence. The
expert witness admitted, however, that the drug does cause
psychological dependence in regular users. Pet. App. 2a. The
district court denied petitioner's motion. Id. at 1b-2b.

2. The court of appeals affirmed petitioner's convictions. First,
the court held that the classification of marijuana as a Schedule I
substance was not arbitrary or irrational and therefore did not
violate the Due Process Clause. The court observed that Congress
provided a mechanism in the Controlled Substances Act for the Attorney
General to revise the narcotics schedules based on new scientific
evidence. In light of Congress's clearly expressed preference for
administrative, rather than judicial, review of the narcotics
schedules, the court declined to hold that it was improper for
marijuana to be included in Schedule I. Pet. App. 3a-5a.

The court also rejected petitioner's claim that the imposition of
criminal penalties for using and distributing marijuana interfered
with his free exercise of religion. The court noted that while the
Free Exercise Clause provides absolute constitutional protection to
religious beliefs, religious conduct may be regulated in order to
protect society. Pet. App. 5a. Accordingly, the court held that
Congress's determination that marijuana poses a threat to individual
health and social welfare justifies criminal penalties for its
possession and distribution, "even where such penalties may infringe
to some extent on the free exercise of religion." Pet. App. 6a.

ARGUMENT

1. Petitioner contends (Pet. 5-14) that his use of marijuana is
constitutionally protected because it is an integral part of his
religious worship ritual. But petitioner was indicted and convicted
for distributing marijuana, not for using it. Petitioner admitted
that he did not consider distributing marijuana to be a religious
experience. Pet. App. 3a. Thus, petitioner fails to present a claim
that would entitle him to relief from his convictions, even assuming
his legal premise is correct.

In any event, however, petitioner's claim that laws prohibiting the
use of marijuana violate the Free Exercise Clause is without merit.
As this Court recently held in Employment Div., Dept. of Human
Resources of Oregon v. Smith, No. 88-1213, slip op. (Apr. 17, 1990),
"if prohibiting the exercise of religion * * * is * * * merely the
incidedntal effect of a generally applicable and otherwise valid
provision, the First Amendment has not been offended." Id., slip op.
5-6. The Court's holding in Smith that a criminal statute governing
the use of peyote is a "generally applicable and otherwise valid
provision" is equally germane to criminal provisions governing the use
and distribution of marijuana.

2. Petitioner's contention (Pet. 15-18) that the classification of
marijuana as a Schedule I substance is irrational and therefore
violates the Due Process Clause is also without merit.

As an initial matter, the court of appeals' rejection of
petitioner's due process challenge is consistent with the decisions of
all of the courts of appeals that have addressed that issue. See
United States v. Fry, 787 F.2d 903, 905 (4th Cir.), cert. denied, 479
U.S. 861 (1986); United States v. Fogarty, 692 F.2d 542, 547 (8th
Cir. 1982), cert. denied, 460 U.S. 1040 (1983); United States v.
Middleton, 690 F.2d 820, 822-823 (11th Cir. 1982), cert. denied, 460
U.S. 1051 (1983). Thered is therefore no conflict among the circuits
on this issue that might call for this Court's review.

Nor is there force to petitioner's argument that the inclusion of
marijuana in Schedule I is irrational. Petitioner does not challenge
the rationality of Congress's decision in 1970 to place marijuana in
Schedule I when it enacted the Controlled Substances Act. See 21
U.S.C. 812(c). Rather, he contends that the new scientific evidence
he presented to the district court demonstrates that marijuana does
not meet current statutory requirements for inclusion in that
schedule. /1/ Congress, however, delegated to the Attorney General
the task of reviewing and revising the classifications of scheduled
drugs. The Attorney General was given the authority to remove any
substance from scheduling or to reclassify a substance from a
particular schedule to another schedule if he found that it did not
meet the requirements for inclusion in that schedule, which are set
forth in 21 U.S.C. 812(b). See 21 U.S.C. 811(a)(2). In the case of
drugs required by an international treaty or convention to be
controlled, however, Congress left to the Attorney General the
discretion to "control() such drugs under the schedule he deems most
appropriate to carry out such obligations, without regard to the
findings required by (21 U.S.C. 811(a) or 21 U.S.C. 812(b))." 21
U.S.C. 811(d)(2). The Single Convention on Narcotic Drugs, June 24,
1967, 18 U.S.T. 1407, T.I.A.S. No. 6298, provides for the control of
marijuana (cannabis) by the parties to the convention. See 18 U.S.T.
at 1421, 1559, 1562. The Attorney General therefore is authorized
under 21 U.S.C. 811(d)(2) to control marijuana in a schedule that will
meet the requirements of the Single Convention regardless of whether
marijuana meets the standards set forth in 21 U.S.C. 812(b).
Marijuana must be placed in at least Schedule II to comply with the
Single Convention. See National Organization for the Reform of
Marijuana Laws v. Drug Enforcement Administration, 559 F.2d 735, 752
(D.C. Cir. 1977). And, in light of 21 U.S.C. 811(d)(2), there is no
legal impediment to the Attorney General's continuing to classify
marijuana as a Schedule I drug.

In any event, petitioner has not followed the proper procedure to
seek review of the Attorney General's decision to continue classifying
marijuana as a Schedule I drug. That determination is subject to
judicial review after an administrative proceeding. /2/ Having failed
to invoke the administrative process that Congress established for
changing the law, petitioner may not now argue that it is improper to
apply the law to him in the form that Congress wrote it. /3/

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

RICHARD A. FRIEDMAN

Attorney

APRIL 1990

/1/ Section 812(b)(1) of Title 21 provides that a drug may be
placed in Schedule I if a finding has been made that:

(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 or
other substance under medical supervision.

/2/ After conducting an administrative proceeding addressing the
question whether marijuana should be in Schedule I or Schedule II, the
Drug Enforcement Administration has ordered that marijuana remain in
Schedule I. 54 Fed. Reg. 53767 (Dec. 29, 1989).

/3/ Petitioner relies (Pet. 11-15) on a number of state cases that
have held that the classification of marijuana as a narcotic under
state criminal law is irrational in light of the available scientific
evidence. Those cases, however, do not in any way undermine the
rationality of Congress's decision to include marijuana in Schedule I,
which is not limited to "narcotic" drugs. Compare 21 U.S.C. 802(17)
with 21 U.S.C. 812(c).
 
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