Cite as 692 F.2d 542 (1982)

542

UNITED STATES of America, Appellee

v.

Gregory Richard FORARTY, Appellant.

No.82-1323

Submitted Sept.16, 1982
Decided Nov. 10, 1982.

Rehearing Denied Dec. 9, 1982.

Certiorari Denied March 21,1983.

See 103 S.Ct. 1434.

Defendant was convicted in the United States District Court for the District of

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South Dakota, Donald J. Porter, J., of conspiracy to import marijuana and conspiracy to possess marijuana with intent to distribute, and defendant appealed. The Court of Appeals, Floyd R. Gibson, Senior Circuit Judge, held that: …………(4) defendant failed to prove irrationality of Schedule I classification of marijuana. Judgment affirmed.

5. Drugs and Narcotics «=46 There is no fundamental constitutional right to import, sell, or possess marijuana; therefore, legislative classification of marijuana as class one controlled substance could not be overruled unless it bore no rational relationship to legitimate government purpose.

7. Drugs and Narcotics <s=46 Ongoing vigorous dispute as to physical and psychological effects of marijuana, its potential for abuse, and whether it has any medical value, supports rationality of continued Schedule I classification of marijuana

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8. Drugs and Narcotics "3=46 Three statutory criteria for Schedule I classification of 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. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 202(b)(l), 21 U.S.C.A. § 812(b)(l).

9. Drugs and Narcotics <3=46 Congress has provided comprehensive reclassification scheme, authorizing Attorney General to reclassify marijuana in view of scientific evidence and has therefore provided efficient and flexible means of assuring continued rationality of classification of controlled substances. Comprehensive Drug Abuse Prevention and Control Act of 1970, § 201(c)(l-8), 21 U.S.C.A. § 811(cXl-8).

10. Drugs and Narcotics «=123 Defendant did not meet his heavy burden of proving irrationality of Schedule I classification of marijuana in light of ongoing dispute as to physical and psychological effects of marijuana, its potential for abuse, and whether it has any medical value, fact that three statutory criteria for Schedule I classification should not be read as being either cumulative or exclusive, and that Congress has provided comprehensive classification scheme authorizing Attorney General to reclassify marijuana in view of scientific evidence. Comprehensive Drug Abuse Prevention and Control Act of 1970, §§ 201(cXl-8), 202(bXl), (c), Schedule I(c), (10), 21 U.S.C.A. §§ 811(c)(l-8), 812(b)(l), (c), Schedule I(c)(10).

Before BRIGHT, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Gregory Richard Fogarty was convicted at a bench trial on stipulated facts of one count of conspiracy to import marijuana in violation of 21 U.S.C. §§ 952(a) and 963 (1976), and one count of conspiracy to possess marijuana with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(l) and 846. Fogarty appeals his conviction, claiming …….(2) that the classification of marijuana in the Federal Controlled Substances Act is arbitrary and capricious, violating the due process and equal protection mandates of the Fifth Amendment to the United States Constitution. We reject Fogarty's claims and affirm his conviction.

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The Controlled Substances Act Fogarty also contends that his conviction should be reversed because of the alleged unconstitutionality of the Federal Controlled Substances Act. 21 U.S.C. §§ 801-904 (1976) (CSA or Act). Specifically, Fogarty claims that the classification of marijuana as a Schedule I controlled substance,3 id. at § 812(b), Schedule I(c)(10), is irrational and arbitrary, violating the due process and equal protection mandates of the Fifth Amendment to the United States Constitution. The gist of this claim is that the weight of current medical knowledge purportedly shows that marijuana does not satisfy the three statutory criteria necessary for inclusion in Schedule I—(A) high potential for abuse, (B) no currently accepted medical use, and (C) lack of accepted safety for use of the drug under medical supervision. 21 U.S.C. § 812(b)(l). Fogarty places particular emphasis on the number of currently accepted medical uses for marijuana, including therapeutic uses in the treatment of glaucoma and cancer.

[5,6] In addressing this argument, we first note the highly deferential standard of review applicable here. Because there is no fundamental constitutional right to import, sell, or possess marijuana, the legislative classification complained of here must be upheld unless it bears no rational relationship to a legitimate government purpose. United States v. Kiffer, 477 F.2d 349, 352 (2nd Cir. 1972), cert denied, 414 U.S. 831, 94 S.Ct. 165, 38 L.Ed.2d 65 (1973). Accordingly, "the judiciary may not sit as a superleg-islature to judge the wisdom or desirability of legislative policy determinations made in areas that neither affect fundamental rights nor proceed along suspect lines . . . . " New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2516, 49 L.Ed.2d 511 (1976). Furthermore, judicial self-restraint is especially appropriate where as here the challenged classification entails legislative judgments on a whole host of controversial medical, scientific, and social issues. Marshall v. United States, 414 U.S. 417, 427, 94 S.Ct. 700, 706, 38 L.Ed.2d 618 (1974); a/so see Kiffer, 477 F.2d at 352. As noted in Williamson v, Leo Optical, Inc., 348 U.S. 483, 488, 75 S.Ct. 461, 464, 99 L.Ed. 563 (1954): "It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it." [7-10] With this in mind, we conclude that Fogarty has not met his heavy burden of proving the irrationality of the Schedule I classification of marijuana.4 First, the

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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. See National Organization for Reform of Marijuana Laws v. Bell, 488 F.Supp. 123, 128-30, 136, 139^0 (D.D.C.1980) (Three Judge Court) for Judge Tamm's excellent discussion of the current state of medical and scientific knowledge concerning the uses and effects of marijuana. Furthermore, the three statutory criteria for Schedule I classification set out in § 812(b)(l)—high potential for abuse, no medically accepted use, and no safe use even under medical supervision—should not be read as being either cumulative5 or exclusive.6 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. See 21 U.S.C. § 811(c)(lH8). 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. See, Kiffer, 477 F.2d at 357.

Costs assessed

Judgment affirmed, against Appellant.

footnotes

3 The severity of statutory sanctions for drug distribution and related offenses depends on the schedule in which the drug is classified, with the most severe penalties typically attach ing to Schedule I substances and the least severe penalties attaching to Schedule IV and V substances. 21 U.S.C. § 84!(b). Congress made the initial classifications of controlled substances. However, recognizing that scientific information concerning controlled sub stances could change, Congress empowered the Attorney General to hear petitions for the re- classification or removal of drugs from the schedules. Id. at § 811.

4 In so holding we are 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. See United States v. Kiffer, 477 F.2d 349, 356-57 (2d Cir. 692 F2d—l-t 1972), cert, denied, 414 U.S. 831, 94 S.Ct. 165, 38 L.Ed.2d 65 (1973); United States v. Envin, 602 F.2d 1183, 1185 (5th Cir. 1979) (Attorney General's failure to reclassify marijuana did not violate defendant's equal protection or due process rights); United States v. Maiden, 355 F.Supp. 743, 749 (D.Conn.1973); Nat. Org. for Reform of Marijuana Laws v. Bell, 488 F.Supp. 123, 140 (D.D.C.1980) (Three Judge Court); Wolkind v. Selph, 495 F.Supp. 507, 513 (D.Va. 1980), afrd, 649 F.2d 865 (4th Cir. 1981) (Virginia's Controlled Substances Act, which classified marijuana as a Schedule I substance, complied with equal protection and due process mandates); United States v. Creswell, 515 F.Supp. 1268, 1271 (E.D.N.Y.1981) (DEA's decision not to reclassify marijuana was not arbitrary nor an abuse of discretion in view of the continued controversial effects of marijuana).