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UNITED STATES v. CASTRO

February 12, 1975

UNITED STATES OF AMERICA
v.
JOSE CASTRO.



The opinion of the court was delivered by: Will, District Judge.

  MEMORANDUM OPINION

The defendant herein, Jose Castro, is charged with distribution of 19 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). The defendant has moved to dismiss the indictment against him contending that cocaine has been arbitrarily and irrationally classified as a narcotic drug for penalty purposes, thereby exposing him to a harsher maximum penalty than prescribed for medically comparable drugs listed in 21 U.S.C. § 841(b)(1)(B), in violation of the constitutional guarantees to due process, equal protection, and freedom from cruel and unusual punishment. While we find defendant's challenge to the pharmacological basis of Congress' classification of cocaine as a narcotic drug to be persuasive, we do not find that the penalty classification is so devoid of rationality, or so offensive to the concept of equal justice as to warrant our overturning the statute. For the reasons set forth hereinafter, defendant's motion to dismiss will be denied.

I

The Comprehensive Drug Abuse Prevention and Control Act of 1970 (1970 Drug Act), 21 U.S.C. § 801 et seq., establishes five schedules of controlled substances. The substances are grouped according to their potential for abuse, their medical usefulness, and the consequences of their use, 21 U.S.C. § 812. Cocaine is classified as a Schedule II substance for regulatory purposes based upon the following criteria:

(2) Schedule II. —

    (A) The drug or other substance has a high
    potential for abuse.
    (B) The drug or other substance has a currently
    accepted medical use in treatment in the United
    States or a currently accepted medical use with
    severe restrictions.
    (C) Abuse of the drug or other substance may
    lead to severe psychological or physical
    dependence.

Those controlled substances listed in Schedules I and II of the 1970 Drug Act designated as narcotic drugs are grouped together under 21 U.S.C. § 841(b)(1)(A) for penalty purposes. The statutory definition of a narcotic drug is contained in 21 U.S.C. § 802(16), which provides in relevant part:

  The term "narcotic drug" means any of the
  following, whether produced directly or indirectly
  by the extraction from substances of vegetable
  origin, or independently by means of chemical
  synthesis, or by a combination of extraction and
  chemical synthesis:

(A) Opium, coca leaves, and opiates.

    (B) A compound, manufacture, salt, derivative,
    or preparation of opium, coca leaves, or
    opiates.
    (C) A substance . . . which is chemically
    identical with any of the substances referred to
    in clause (A) or (B).
  Such term does not include decocainized coca
  leaves or extracts of coca

  leaves, which extracts do not ...

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