Summary
In United States v. Harper (9th Cir. 1976), 530 F.2d 828, cert. denied, 429 U.S. 820, 50 L.Ed.2d 80, 97 S.Ct. 66, it was determined that the classification of cocaine as a narcotic drug under the Comprehensive Drug Abuse and Control Act (21 U.S.C. § 812 (1970)) was not arbitrary or irrational.
Summary of this case from People v. AndersonOpinion
No. 75-2993.
February 9, 1976. Rehearing and Rehearing En Banc Denied March 25, 1976.
Michael Pancer (argued), San Diego, Cal., for defendant-appellant.
Bruce R. Castetter, Asst. U.S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Southern District of California.
OPINION
We affirm the conviction of petitioner Ronald Lee Harper for possession and dispensing of cocaine, rejecting his sole contention on appeal that the classification of cocaine as a Schedule II narcotic drug under 21 U.S.C. § 812(c) is arbitrary and irrational.
Numerous district courts have recently dealt with this argument. United States v. Amidzich, 396 F. Supp. 1140, 1147 (E. D.Wis. 1975); United States v. Hobbs, 392 F. Supp. 444, 446 (D.Mass. 1975); United States v. DiLaura, 394 F. Supp. 770, 773 (D.Mass. 1974); United States v. Brookins, 383 F. Supp. 1212, 1217 (D.N.J. 1974). In all cases, the courts expressed the opinion that Congress had acted upon a constitutionally "rational basis" according to the test of United States v. Carolene Products Co., 304 U.S. 144, 153-4, 58 S.Ct. 778, 784, 82 L.Ed. 1234, 1242 (1938), in so classifying cocaine for the purpose of imposing penalties. See also United States v. Smaldone, 484 F.2d 311, 319-20 (10th Cir. 1973), cert. denied, 415 U.S. 915, 94 S.Ct. 1411, 39 L.Ed.2d 469 (1974) and United States v. Miller, 387 F. Supp. 1097, 1098 (D.Conn. 1975), where slightly different reasoning nonetheless led the courts to the same conclusion that Congress had not acted arbitrarily.
Petitioner's reliance upon the district court's decision in United States v. Castro, 401 F. Supp. 120 (N.D.Ill. 1975), is misplaced. The court found no fundamental right of defendant involved and therefore reasoned that the "rational basis" test of Carolene, supra, must be applied. The court then cited the language of Brookins, supra, observing that continuing medical debate, potential for societal harm, and general uncertainty as to whether Congress classified cocaine on more of a penal or medical basis, were grounds that could constitute the required rational basis for sustaining the statute. Although sympathetic to the argument that cocaine was misclassified as a narcotic, the court concluded that the consideration of any unresolved questions was better left to Congress and the Attorney General. We agree and affirm the conviction.
See Duffy v. Wells, 201 F.2d 503 (9th Cir. 1953).